What is SEND Law?
SEND Law is mainly a statutory framework that encompasses all the duties, procedural rules and rights within special education needs and disability. This is a vast area, with many different statutes and touches upon many different areas of law..
Where do I find it?
The Children and Families Act 2014
The Equality Act 2010
The SEND Regulations 2014
The SEND Code of Practice 2015
SEND Law operates by way of statute, statutory instruments and further guidance from the code of practice. This list is by no means exhaustive as SEND law will invoke other statutory instruments and guides but this will offer a good insight into this area of law. Here, however, we will focus on the SEND code which is a great introduction to SEND law for parents.
Why is it important for parents to have some understanding/knowledge of SEND code?
The SEN code of practice gives parents digestible and easy to understand insight into SEND law. It is far more comprehensible than the direct legislation or their instruments. The SEN code is most definitely a user-friendly beginners guide and introduction into SEND law. I think it is super important for parents to have an understanding ( at the very least) of the code because without being aware of the rights you are able to enforce on behalf of your children, or without knowing the duties of either the school or local authority are obliged to legally adhere to it is hard to know when significant breaches have occurred or even knowing it is you can request, demand or change. Having an understanding of SEN law enables families to walk through a complex procedural maze with a tiny hand-torch in hand. It won't open up all the hidden secret doors but it will certainly illuminate them for you.
I advise each and every one of you to go and take a look at the guide. Familiarise yourself with its various chapters so that should a problem arise you know exactly where in the guide ( and it is a large one) to turn to. Below is simply an overview of what the code sets out to do. Enjoy.
What is the SEND Code of Practice?
The Special Educational Needs and Disability (SEND) Code of Practice has been designed to provide guidance to organisations working with, and providing support to, children and young people (from 0 to 25 years) with special educational needs and disabilities.
It outlines the legal requirements and statutory guidelines for schools, academies and local authorities, as set out in the Children and Families Act 2014, the Equality Act 2010, and the Special Educational Needs and Disability Regulations 2014. The SEND Review which is due to be published in Summer 2021 - will most probably provide updates aimed at further improving all available services.
Defining Special Educational Needs
It is stated in the code (pages 15 and 16), that:
A child or young person has SEN if they have a learning difficulty or disability which calls for special educational provision to be made for him or her.
A child of compulsory school age or a young person has a learning difficulty or disability if they:
∙ have significantly greater difficulty in learning than the majority of others of the same age, or
∙ have a disability that prevents or hinders them from making use of facilities generally provided for others of the same age in mainstream schools or mainstream post-16 institutions
Here are four broad areas, highlighted in the code, to give an overview of the range of needs that schools should be planning for:
Communication and interaction: This incorporates students with speech, language and communication needs (SLCN) who have difficulty understanding and communicating with others. This may include children and young people with ASD, including Asperger Syndrome and Autism.
Cognition and learning: This focuses on those children and young people who learn at a slower pace than their peers, as well as those with Specific Learning Difficulties (SpLD), including dyslexia, dyscalculia and dyspraxia.
Social, emotional and mental health difficulties: i.e children who may have become withdrawn or isolated, as well as those displaying challenging, disruptive or disturbing behaviour. The code states these behaviours may reflect underlying mental health difficulties such as anxiety or depression, self-harming, substance misuse, eating disorders or physical symptoms that are medically unexplained.
Sensory and/or physical needs: This encompasses children with a disability that prevents or hinders them from making use of the educational facilities generally provided – including those with visual or hearing impairments, multi-sensory impairments, and/or physical disabilities.
What is an Educational Health Care (ECH) Plan?
The most recent iteration of the SEND Code of Practice has seen the introduction of Education Health Care (EHC) Plans. The EHCP has now replaced the ‘statements of SEN’.
Local authorities are required to provide an EHC Plan for any SEN child or young person who will be left at a disadvantage without additional support. This plan will map out any special educational provision to meet the needs of the pupil or student in question, securing the best possible outcomes for them.
Each plan sets out both short and long-term outcomes that the local authorities and educational providers will work towards.
You can request an EHC Plan assessment from a local authority if you are: the child’s parent; a person between 16-25; or a person acting on behalf of the education provider or school.
At the heart of family law, in particular Childrens' proceedings, there is an overriding objective to put a child's welfare at the very centre of the process, the legislation operating within family law and the decisions that are made. Unfortunately, when parents are having to liaise/ work with local authorities (and sometimes schools) this overriding requirement to put the needs of a child first, is not very apparent. I believe that my background in Family Law means that I want to ensure that this objective is seen throughout every draft issued, meeting attended, mediation attended, or tribunal grounds submitted. I want to humanise the procedure to ensure each child or young person is seen, their voice and needs heard and that decisions are made whilst putting them at the very heart and centre of the process. After all, they are our future, and their education that at the most basic level is able to fully meet their needs should be at the forefront of meeting their welfare needs.
Written by Shauna Lyttle, Parent Advocate.
Shauna has over 10 years of legal experience within various legal sectors, with a specific focus on child welfare, family law and SEN law.
“I have seen first-hand that any encounter within the legal system can be a daunting and overwhelming one - be it attending mediation, tribunals or the courts. My aim within this role is to advise and assist you to be fully equipped and empowered, to advocate on your behalf and ensure that your child can access one of the most basic and fundamental human rights - Article 2 of the First protocol ECHR: the right to education.”
Along with obtaining level 1-3 IPSEA (SEN Legal) qualifications, Shauna is a member of the Educational Law Society, is also currently training to become a barrister- with the aim of specialising in family and education law. In her spare time, she volunteers for SEN and social welfare charities in order to continue to support and advise those encountering the complex SEN and tribunal systems. Want to get in touch with Shauna? Click here.
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