Support for Children with Special Educational Needs - Without a Statement of SEN or Education, Health and Care Plan (EHCP)


Samantha Hale, our Solicitor specialising in Education, Community Care and Public Law, answers your questions about the support you can access for your child with special educational needs (SEN), and what you can do if you think your child isn't receiving the right level of support.

Children at School

What support is my child entitled to if they have special educational needs but do not have a Statement of SEN or EHCP?

Children with SEN are supported in school through 'SEN Support'if they don't have a Statement of SEN or an EHCP. This replaced School Action and School Action+ which some children will have previously had.

What is 'SEN Support'?

'SEN Support' should focus on a cycle which requires the school to assess, plan, do and review, to ensure they understand the child's needs and the support needed to help them make good progress. This is therefore likely to differ according to the individual needs of each child.

Assess - To assess, the class teacher must work with the special educational needs co-ordinator (SENCO for short) to carry out a clear analysis of the child's needs, and this should include taking seriously any concerns raised by the parents. This should be reviewed regularly and should include input from professionals working with the child and school.

Plan - If the school decides to provide 'SEN Support', they must plan the support and interventions the child needs based on the assessment. The school must make sure the parents are fully aware of the planned support and interventions.

Do - The school should then 'do' the planned support and interventions and should also review the effectiveness of them and the impact of these on the child's progress. The school should also seek the views of the child and their parents. Any changes to the plan following the review should then be done in consultation with the pupil and parent.

Can 'SEN Support' include provision from professionals outside of the school?

Yes, so long as it is decided that provision from an outside professional is needed as part of the 'SEN Support'. Parents should always be involved in the decision to use professionals outside of the school and any agreed support should be provided as soon as possible after assessing it is needed.

What can I do if the 'SEN Support' is not provided as set out in the school's plan?

As the school is responsible for 'SEN Support' you should contact the school and discuss this with them. You may want to contact the class teacher or the SENCO first and if you don't receive a satisfactory response you could consider making a complaint to the school. The school will have a complaints policy, which sets out the process you will need to follow. This should be provided on request.

What can I do if the school's plan does not include provision needed, or if my child is not making progress under 'SEN Support'?

You could raise your concerns with the school as set out above. If you remain unhappy it is unlikely you will be able to take legal action against the school in relation to the 'SEN Support', unless you think the school are discriminating against your child in relation to this. If you have these concerns I recommend you seek legal advice.

You should consider whether or not you feel your child's special educational needs can be met under 'SEN Support' or if they need an EHCP. An ECHP is a higher level of support than 'SEN Support' for children with special educational needs and not all children will be entitled to one.

EHCPs have many benefits, but there are two key benefits that 'SEN Support' doesn't have regarding provision for meeting the child's needs. Firstly, the EHCP will set out what provision is required to meet the child's educational needs and if this is not provided as set out in the EHCP, there is a legal remedy that can be pursued against the Local Authority, who has a legal duty to ensure it is provided. Secondly, if an EHCP does not include all the provision a child needs, the parents or the child (if they are over compulsory school age) can appeal to the First-tier Tribunal (Special Educational Needs and Disability) and ask for further provision to be included in it. You can also use this right of appeal to ask for the provision included to be more specific and quantified as EHCP's are not always clearly written in relation to this.

How do I get an EHCP?

You or the school can request an Education, Health and Care Needs Assessment from the Local Authority, which is the start of the process of trying to get an EHCP. The Local Authority could refuse to carry out the assessment, or after assessing they could refuse to issue an EHCP. If either of these happens to you, I recommend you seek legal advice about your right of appeal. Likewise, if you are successful in obtaining an EHCP I would recommend seeking legal advice regarding your right of appeal in relation to this to make sure it is a good Plan.

Samantha Hale is a Solicitor with Simpson Millar and specialises in Education, Community Care and Public Law.

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