Legal Advice for Special Educational Needs and Disabilities (SEND) Cases

There are a number of situations where parents may find themselves requiring legal advice due to their child's Special Educational Needs (SEN). Our expert team of education law specialists have helped a number of families in cases where schools or academies have not fulfilled a child's SEND requirements.

Legal Advice for Special Educational Needs and Disabilities (SEND) Cases

In this guide we will highlight the areas of SEND cases that we specialise in. This includes:

Discrimination

Discrimination is one of the most serious issues facing SEND families. We have dealt with a number of cases where a school has unfairly discriminated against a child due to their special educational needs.

Under the Equality Act 2010, schools and academies have a duty to treat all pupils equally, however many educational institutions are unaware of their obligations and do not fully understand how their policies could adversely affect disabled students.

Discrimination against disable students can manifest itself in a number of ways, including:

  • Lack of access to resources, as more able students are favoured for school funds
  • A slow response to refurbishments, which could be required for a child's special educational needs
  • Ignoring SEND children in the classroom, as some employees at schools do not know how to deal with a child's needs
  • Placing SEND children on lower exam papers, because of an assumption that they cannot perform at the same level as their peers

In each of these cases it is crucial that wrongdoing is highlighted, as it is important that schools and academies are aware of their discriminatory policies. Headed by Imogen Jolley, our team of solicitors have acted as an intermediary between families and schools in a variety of discrimination cases to deal with the barriers to educational progress caused by discriminatory schools and academies.

The main goal in every discrimination case is to ensure that any restrictions to a child's learning are removed.

For example, if a child is not getting the support from a class teacher because of what can be challenging behaviour, it is important that this issue is addressed and the child receives an education plan that encourages their development.

Most discrimination cases do not stem from an intentional or systematic negative attitude to SEND pupils, rather, the employees at schools and academies are not aware that their actions could be conceived as discriminatory. It is for this reason that we open up a dialog with schools and academies when they've discriminated against SEND pupils, so that they are made aware of the issues and retrain staff where necessary.

Of course, discrimination in education is not only faced by disabled students and we have dealt with a number of cases where race or religion can result in unlawful discrimination against pupils.

If your child, or a child you know, has faced discrimination at school for any reason please refer to our education services page to see how our fixed fee services could help you.

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Admissions and Exclusions

Children that have an Education, Health and Care (EHC) plan – formerly known as a Statement of Special Educational Needs (SEN) – have different admissions and exclusions processes within schools and academies.

If your child has an EHC plan in place it is important that you are aware of the admissions and exclusions processes that apply to your child, as we see many cases where SEND pupils are unfairly judged on admission or exclusion:

  • With an EHC plan, your child should not go through the normal admissions process, even if you are trying to place them in an oversubscribed mainstream school
  • Special admissions arrangements are in place for SEND children, so that they can obtain a place at a school that suits their EHC plan. The arrangements are in place to reduce the amounts of complaints
  • Unlike for other admissions and exclusion appeals – SEND appeals go to the Special Educational Needs Tribunal (instead of the Independent Appeal Panel)

The admissions process for SEND pupils requires that parents receive an updated EHC plan by February 15, which should outline the school that your child will attend the following September. If you have not received such information you will need to act quickly and contact our education team, as a tribunal will not be able to help in cases where there is genuinely no spaces for new pupils.

We recognise the long-lasting effect exclusion can have on children, with ramifications often extending into later life.

  • A recent Government Inquiry has exposed that more than two thirds of all permanently excluded children have some form of special educational needs
  • Children with EHC plans are seven times more likely to be excluded than those with no needs
  • The Prisons Inspectorate has also revealed that nine out of ten young people in prison were excluded from school

These statistics underline why we are so passionate about this area of education law and why we are so keen to help families with SEND children.

Exclusions are almost always a sign that a child's needs are not being met - a sign that they need more support, greater therapy input, or even a different school. If children facing exclusion do not have an EHC plan in place, they often need one. If they have an EHC plan, it may be that the provision in it is lacking.

These are all issues that we can help you tackle.

Tribunals

SEND Tribunals are designed to enable parents to conduct their own case in any situation where they feel their child has been unfairly treated. Many parents find the tribunal process extremely difficult, particularly at a time when they are emotionally vulnerable.

While the tribunal hearing is designed to be informal, the process leading up to it can be quite focussed on legal proceedings, requiring a great deal of preparation. Our team of education law specialists can provide you with a full package of support to take you through the tribunal process.

If you would like to appeal against your child’s EHC plan yourself, we can advise you on the relevant procedures and can inform you on whether you need any additional reports on your child.

Our service includes:

  • The contacting of relevant experts - who are experienced not just in your child’s specific disability, but also in giving evidence at tribunal hearings
  • The option to have us present cases on the behalf of our clients at the tribunal itself, which is recommended in cases where parents may be too nervous to present their own case.

We offer this service to parents in any part of England or Wales.

Over the last five years, we have obtained independent educational provisions worth over £18million on behalf of over 100 children, as well as helping many other parents to successfully appeal at tribunals to obtain the education their children needed.

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Case Studies

Kosi

Kosi had recently been diagnosed as being autistic and was allocated a place at a school two bus journeys from his home. His mother suffers from visual impairment and is registered blind; as such, she was unable to help him with the bus ride to school.

As it was judged that Kosi did not have the independent skills to make the bus journey on his own his mother applied for a place in a local school, just a ten minute walk from the family home.

The school rejected the application, as they claimed there were no spaces for Kosi.

We lodged an appeal to the independent appeal panel, putting forward all of the difficulties faced in this case. We pointed out the fact that Kosi's mother could walk him to school if was given a place at the school she wanted.

It was decided that Kosi's need to attend the school was greater than the school's difficulties in coping with an extra child so the appeal succeeded and Kosi was given a place.

Jake

Jake was due to start primary school and due to his difficulties walking, his mother decided that only one school would be suitable for him. Unfortunately this was not their local school, so Jake's mother asked that he be considered for a place due to his health and physical difficulties.

As the school did not receive a letter from the family doctor stating that this was the only school suitable for Jake, his application was judged solely on their location – as a result he was not given a place.

We helped lodge an appeal against this decision, and during the case it became clear that even if Jake had been put in the right category, he still would not have been given a place.

It was revealed that Jake was below a number of criteria, particularly religious requirements – as the school in question was a faith school. Due to the admissions process at faith schools children like Jack had little chance of being given places at the schools they really needed.

We argued that the order of the local authority criteria for deciding which child got a place was unfair, and did not deal properly with his disability.

The independent appeal panel agreed that the decision not to give the place that Jake needed so badly was wrong and ordered the local authority award a place at the school. Jake has since started and his mother says that the placement is working out exactly as they hoped and he is making excellent progress.

Martin

Martin, aged eight, had severe autism. He attended a Local Education Authority (LEA) school for children with severe learning difficulties, which was very caring but had little idea of how to handle his distress over communication difficulties, or how to help him apply his learning in different settings.

Although Martin was becoming increasingly difficult at home and at school, the LEA considered that the problems were home-based and that he was receiving an adequate education.

Martin’s parents had appealed earlier to the SEND tribunal but did not have legal representation at that stage and had not been advised on the expert reports they would need to prove their case. When they came to Simpson Millar, they had just lost the tribunal, although they had won an increase in the level of provision at Martin’s school.

We arranged for Martin to be assessed by a Speech and Language Therapist specialising in autism and an Educational Psychologist who assessed him in his learning environment. The psychologist was able to show that regardless of how caring the staff were, they were not equipped to deal with autism.

With these experts’ help, we were able to show that the LEA needed to reassess Martin and to issue a new EHC plan.

Following a successful appeal to the tribunal, we obtained an order naming the school of the parent’s choice, which had specialist provision for autism, as well as the full range of speech and language and occupational therapy. After taking a little time to settle in, Martin has blossomed and is communicating for the first time in years.

Brian

Brian, aged 16, had Asperger’s syndrome. He had been helped through his compulsory education by attending an independent specialist school.

It was generally agreed that on leaving school he would benefit from continuing his education at college. Brian chose a college some distance from his home, where he could pursue his interest in horticulture while receiving support for his special needs.

Brian needed transport to attend college, but his parents could not afford this. Despite months of negotiation and discussion with his parents, Brian’s LEA refused to pay for the transport, arguing that Brian should attend a nearer college on a different course.

Following correspondence from us, threatening legal action, the LEA made proper transport arrangements in time for Brian to start college at the beginning of term.

Contact us now

For more on how we can help you and your children meet the challenges of SEN, phone us on freephone: 0808 129 3320 or complete our no-obligation online enquiry form.


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Imogen Jolley - Education Law Solicitor | Simpson Millar| Lancaster

Imogen Jolley
Partner, Head of Education & Community Care

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