As the start of a new academic year approaches, we would like to send our very best wishes to all the children and young people we have had the privilege of supporting over the last year as they return to education.
Special mention goes to those who are beginning a new chapter, whether that is starting at a new school, college, specialist provision, or transitioning into further education. We hope the year ahead goes well.
For parents, and carers, supporting children and young people with Special Educational Needs and Disabilities (SEND), September can also bring uncertainty and challenges. We therefore wanted to highlight some important legal rights and practical considerations.
Is the provision in the EHCP being delivered?
Where a child or young person has an Education, Health and Care Plan (EHCP), the Local Authority has a legal duty to secure all the special educational provision specified in Section F of the plan.
This provision should be in place from the start of term. A lack of funding, staffing difficulties, or administrative delays do not remove the Local Authority’s responsibility to ensure that the specified support is delivered.
If you believe that the provision detailed within the EHCP is not being provided, it is important to act promptly and take action.
If things are not going as planned
The beginning of a new school year can sometimes highlight difficulties that were not anticipated.
In the first instance, consider arranging a meeting with the school, college, or educational setting to discuss your concerns and explore whether matters can be resolved informally and collaboratively.
Open communication can often lead to practical solutions and provide clarity about the support being delivered.
When informal resolution is not enough
If concerns cannot be resolved informally, there are several options available:
Submit a formal complaint
A formal complaint can be made to the Local Authority where there are concerns regarding the provision set out in an EHCP or how educational support is being delivered.
Consider legal action
In some circumstances, particularly where there is a failure to secure the provision specified in Section F of an EHCP, it may be appropriate to seek legal advice regarding a Judicial Review and the possibility of sending a pre-action protocol letter.
Request an Emergency Annual Review
If your child’s needs, placement, or provision require urgent reconsideration, you may wish to request an Emergency Annual Review.
It is important to ensure that a representative from the Local Authority is invited to the meeting and encouraged to attend so that decisions can be made effectively and without unnecessary delay.
Ombudsman complaints
A complaint can also be made to the Local Government and Social Care Ombudsman. While this can be an effective route for investigating concerns, families should be aware that it is unlikely to provide an immediate solution and investigations can take time to conclude.
What if there is no EHCP?
For children and young people who do not currently have an EHCP, it may be appropriate to consider requesting an Education, Health and Care Needs Assessment.
The key question is whether there is evidence that the child or young person may have special educational needs for which special educational provision may be necessary through an EHCP. If this legal threshold is met, the Local Authority must carry out an assessment.
Families should also be mindful of the statutory timescales that apply throughout the assessment process and be prepared to consider mediation or an appeal to the SEND Tribunal if an application is refused.
How we can help
Navigating the SEND system can be complex and overwhelming, particularly when a child or young person is struggling to access the support they need.
Our specialist Education Law team advises and represents children, young people, parents, carers, and educational settings on all aspects of SEND law, including:
- Education, Health and Care Needs Assessments
• EHCP appeals and SEND Tribunal proceedings
• School and college placement disputes
• Annual Reviews and Emergency Annual Reviews
• Complaints against Local Authorities
• Judicial Review proceedings
• Disputes regarding the delivery of EHCP provision
If you have concerns about the support your child or young person is receiving, our education team is here to provide clear, practical advice and help you understand your options.
