Statutory Assessments/Statements prior to September 2014
Whilst special educational needs law is due to change with effect from September 2014, it is still important that parents of children with SEN are familiar with the current regime, as this will remain in place:
- for parents that request a statutory assessment of their child's needs prior to September; and
- for those with statements, until their statements transfer to an education and healthcare plan.
When should a local authority agree to carry out a statutory assessment?
The Special Educational Needs Code of Practice currently states that local authorities should agree to carry out a statutory assessment:
If there is convincing evidence that despite the school, with the help of external specialists, taking relevant and purposeful action to meet a child's learning difficulties, those difficulties remain or have not been remedied sufficiently and may require the local authority to determine the special educational provision that is needed.
Put simply, if the school appear to have done all they can and difficulties still remain, the local authority should agree to carry out a statutory assessment.
What if my local authority carries out their own test?
Despite this clear legal test, many local authorities apply their own test
, which is different to that set out in law.
My local authority said:
We are aware of parents being told things such as:
- We only offer statements if a child has already been seen by the local authority educational psychologist
- We only carry out assessments for children with certain disabilities
- Statements are only needed for children who require over 15 hours a week of 1:1 support
It is Unlawful
Applying such arbitrary tests is unlawful as the only question the local authority should ask when receiving a request from a parent (or school) is as set out above, ie is there convincing evidence
that despite the school doing all they can problems still remain. If the school have taken steps and difficulties remain, an assessment should be carried out.
Statutory Assessment Request Denied
Despite this, many local authorities often turn down requests for statutory assessment
in cases where there is convincing evidence that an assessment is needed.
You should Appeal
In these cases, parents are advised to register an appeal with the Special Educational Needs and Disabilities Tribunal
. Maxwell Gillott are highly experienced in advising and helping parents with such appeals and parents are advised to take legal advice if they have concerns with a decision they have received from the local authority.
We have also recently come across local authorities who suggest that full time 1:1 support can be provided without having a statement
and are using this as a way to justify refusing to carry out a statutory assessment.
We are concerned with this approach as the Special Educational Needs Code of Practice states that if pupils require daily individual support from a learning support assistant, a statement is likely to be needed
. Taking this into account, it is likely that any children that receive full time 1:1 without the benefit of a statement are likely to be eligible for statutory assessment
of their needs and, following this, a statement should be issued.
Don't lose the right to enforcement
Only through ensuring that provision is quantified and specified in a statement will it be possible to enforce the provision. Children without a statement that receive 1:1 support could have this reduced or stopped at any point
and parents would have no legal recourse unless they have a statement that specifically states this support is to be provided.
Ensuring Your Child Receives the Speech and Language and Occupational Therapy Provision They Require
Therapy services across the country are very stretched, particularly in light of the cuts being made to many local authority budgets
and NHS budgets. This can negatively impact on children with SEN
as many local authorities are reducing the amount of therapy services provided
It is therefore important to check the wording contained in your child's statement
if you consider they need such services (i.e speech and language therapy or occupational therapy) at school.
You will only be protected from this provision being cut or reduced if the support is properly specified and quantified in your child's statement
. For example, if your child regularly receives speech and language therapy, part 3 of their statement should state how often this is provided, for how long and whether this is provided on a 1:1 or group basis. This is because the Special Educational Needs Code of Practice states that educational provision should be specified and quantified in a child's statement.
Beware of vague phrases
Despite this clear legal obligation, local authorities will often use vague phrases such as a child "requires access to speech and language therapy" or that "an occupational therapist should advise teachers on a regular basis". Phrases such as this are vague and therefore unenforceable in court
. It is for this reason that they are often used by local authorities as this is a way of ensuring they have flexibility to reduce services
if required due to a change of circumstances such as budget cuts or long term staff illness.
The only way to be protected against this is by ensuring your child's statement properly specifies and quantifies the support they are to receive as this places a clear legal duty on the authority to provide this support. Vague phrases such as 'access to' and 'regular support' are not good enough and further specification will be needed.
If your child's statement does not do this, you should consider appealing against the contents of the statement to ensure that the support they need is properly specified and quantified. We have significant amounts of experience in helping parents with these types of appeals and parents should therefore seek legal advice if they have any concerns.