Education vs Social Care
The Law Of... successfully securing a £230k placementIn appeals to the First-Tier Tribunal (Special Educational Needs and Disability) disputes often arise as to whether or not the young person's need is an educational or social care one.
Sam Hale, Education Law Solicitor
, explains how a recent case has highlighted how issues arise.
Getting The Right Provisions
When a Local Authority incorrectly identifies a need to be in the remit of social care when in fact it is an educational need – the battle between the two is a really important one as it directly impacts on what provisions and what placement a young person is given.
The case in question was an appeal against the provision allocated to one 7-year-old boy – D – in his Statement of SEN and the school named in it.
As part of the Tribunal’s deliberations they had to consider whether or not D’s needs were educational or social care.
The legal definition needed consideration, which was whether D had significantly greater difficulty in learning than the majority of children his age, or if his disability prevented him from making use of the educational facilities generally provided in schools within the Local Authority.
Important facts in D’s case were:
- The Local Authority considered D’s current placement at one of their special schools to be suitable to meet D’s needs with a package of social care to meet his needs outside of normal school hours.
- Our position was that all of D’s needs were in fact educational, primarily due to D’s significant sensory needs. D had started walking on his tip toes because his sensory needs were not being met, and required corrective surgery because of it.
- D’s needs were not being met either inside or outside of the normal school hours, requiring the parents to go above and beyond what any parent should be expected to provide (such as driving over 800 miles a week for 2 years), to try and manage D’s needs from one day to the next.
After much deliberation, the Tribunal decided his needs could only be met if he attended an independent special school, for 52 weeks a year totalling £230,000 a year.
A Complex Range Of Educational Needs
The original social care package was much cheaper, but it was not suitable to meet D’s needs outside of the normal school hours both in term time and during school holidays.
There were further complications in the package suggested by the Local Authority due to the complexity of D’s case; they were wholly unable to provide the appropriate staff to implement the social care package.
Sam comments:"To get the right level of educational provision, Simpson Millar's Education team worked tirelessly to obtain evidence to support the fact that D’s needs were educational needs, including evidence from one of the Local Authority’s own experts who later became a witness for the parents."
"Despite this, the Local Authority maintained D’s needs were social care needs, requiring the education vs social care need battle to be argued out."
"We had no choice but to take the case to Tribunal, where it was deliberated whether D’s needs were educational or social care. The Tribunal concluded that D’s sensory needs were so significant that they were a barrier to D’s learning and therefore were an educational need – not a social care need."
"Regardless of the cost difference between the 2 placements, they ordered that the parent’s preference of school should be named in the Statement of SEN, costing £230,000 a year."
Fulfilling His Potential
The parents of D were understandably overjoyed with the decision, which brought an end to a very long battle to get the support their child needed.
D's parents said:"We were delighted that the Tribunal agreed with us and all the independent professionals involved. Our son's extreme sensory processing difficulties were in fact educational needs and this meant he was awarded the residential placement."
"We are 100% certain it is the best and only option for him in order to meet his needs but have found the actions of the Local Authority to be unacceptable, making the process lengthy and arduous."
"The whole process has left us feeling that severely disabled children are denied essential therapy and education purely on the basis of cost – thankfully there are dedicated and skilled professionals like Samantha who are committed to helping parents through the process."
"We could never have been successful without her help and would offer this unsolicited recommendation of her. We can’t thank her enough for giving our son the chance of alleviating his suffering and fulfilling his potential!"