You need to go through your advices and see what advice you have from professionals and make sure ALL of that is in the statement and provided for.
Have a read through this:
PP are good for some things but yes they are LEA lapdogs in Lancs
INTRODUCTION TO THE STATUTORY FRAMEWORK
- Education Act 1996 Part 4
- SEN Consolidation Regulations 2001
- Code of Practice (2002): Section 313/314 ? Code of Practice on SEN ? 2002. Per W ?v- Blaneau Gwent [2003] EWHC 2880 (Admin), an LEA/Tribunal must thus identify and correctly understand the relevant provisions of the Code and apply them unless it has and states clear reasons for not doing so
- Section 312 - Definitions
(1) Special Educational Needs ? learning difficulty which calls for special educational provision
(2) Learning difficulty ? significantly greater difficulty in learning than the majority of his age, or disability that hinders access to the education generally provided (NB Exceptional ability cannot be a ?learning difficulty? and thus give rise to SEN: S ?v- Oxfordshire [2005] EWHC 196 (Admin), although an LEA may be able to give an educational grant to support such a child outside the SEN regime: CES ?v- Oxfordshire [2004] ELR 489)
(3) Special Educational Provision ? provision which is additional to, or different from, provision made generally for children of that age maintained by the LEA
- Section 321 ? Responsible LEA
(1) LEA responsible for child who has SEN and it is necessary for the LEA to determine the required SEP; and
(2) Registered at a maintained school, or LEA pays for place at private school, or registered at a school, or over 2 but below compulsory school age and has SEN.
(3) Wakefield ?v- Evans [2001] EWHC Admin 508: LEA generally not ?responsible? for person over compulsory school age who is attending a college (rather than school).
- Stages:
(1) School Action ? school from within its resources albeit with external advice
(2) School Action Plus ? school with advice and provision from external professionals
(3) Statement
- Section 323 ? Statutory assessment
(1) Where a child might need a Statement
(2) Schedule 26
(3) SEN Regulations 2001
- Section 324 ? Statements of SEN ? when required
(1) 324(1) ? if, in the light of assessment, it is necessary for LEA to determine the required SEP, then make and maintain a statement of SEN
(2) But note also, the Code of Practice, para 8.2 ? when the SEP needed to meet the child?s needs ?cannot reasonably be provided within the resources normally available to mainstream schools ? in the area?
(3) Note: the Provision of Information by Local Education Authorities (Education) Regulations 2001 require LEAs to publish details of what schools are funded to provide from within their budgets
- Section 324 ? Content etc of Statements
(1) 324(2)-(4) ? format of statement ? see below
(2) 324(5) ? unless parents have made suitable alternative arrangements, LEA must arrange the SEP and may arrange the non-educational provision; named maintained school must admit
(3) Schedule 27 ? process for consultation on draft with parents and potential schools ? see below on para 3 of Schedule 27
- Section 328 ? Review
(1) Regulations
(2) Where phase transfer due, review and new statement must take place before 15 February
(3) No appeal against refusal to amend Statement following review
(4) Schedule 27 paras 9-11 ? Cessation of Statements - W ?v- Blaneau Gwent [2003] EWHC 2880 (Admin) ? requiring strict application of the provisions of paras 8.117-8.119 of the Code:
STATEMENTS OF SPECIAL EDUCATIONAL NEEDS
- A Statement of Special Educational Needs under Part 4 of the Education Act 1996 is the document which ensures that:
(1) a child with special educational needs receives the special educational provision he or she requires;
(2) the school that child attends knows what it is required to do and secures the funds/provision it requires to do so from the LEA; and
(3) the responsible LEA discharges its duty to arrange the provision and oversee the delivery of the provision.
- Statements have a key role as being the outcome of the assessment (and if necessary, appeal) process; and they provide the benchmark for the annual review process.
THE FORMAT OF A STATEMENT
- The format of a statement is prescribed by:
(1) section 324(1) of the 1996 Act,
(2) the schedule to the Education (Special Educational Needs) Regulations, and
(3) the Code of Practice.
- Statements have 6 ?parts?:
(1) introduction ? describes the child
(2) ?special educational needs? ? a description of the child?s needs arising from a ?learning difficulty? which require the making of special educational provision (section 312(1) 1996 Act)
(3) ?special educational provision? ? specifies the special educational provision the child needs ? being ?provision which is additional to or otherwise different from the educational provision made generally for children of his age in schools maintained by the [LEA]?)
(4) ?placement? ? the school at which the authority think it is appropriate to make the provision in question
(5) ?non educational needs? ? needs for which provision is required if the child is properly to benefit from the provision in part 3
(6) ?non educational provision? ? provision which the authority propose to make available or which they are satisfied will be made available by another body.
- They also have appendices which set out the evidence which has been accumulated as part of the assessment process:
(1) A: parental representations
(2) B: parental evidence
(3) C: advice from child?s parent
(4) D: educational advice
(5) E: medical advice
(6) F: psychological advice
(7) G: social services advice
(8) H: other advice.
Note that: the Statement should actually specify the relevant matters, as taken from evidence in the appendices, with conflicts resolved. It is not acceptable simply to cross refer to the appendices.
Substantial amendments to a Statement should be supported by up to date evidence.
- Statements have to be intelligible to people who have to read them and not just their authors. The parties have to be able to reach a good understanding of what the words mean. It is no good if they are ambiguous: T ?v- Hertfordshire [2003] EWCA Civ 1893
GENERAL
17. The LEA/SENDIST is under a duty to secure provision which meets the child?s SEN but is not:
?under an obligation to provide a child with the best possible education. There is no duty on the authority to provide such a Utopian system, or to educate him or her to his or her maximum potential. ??: R v Surrey CC ex p H (1984) 83 LGR 219
Also:
The duty is to select ?an appropriate school ?. There is nothing in the statutory scheme which requires the local education authority to specify the optimum available provision?.?: R v Cheshire CC ex P C (1996) 95 LGR 299
Also:
?? this does not oblige the local education authority to make available the best possible education, Parliament has imposed an obligation to meet the needs of the child and no more.? S v SEN Tribunal [1995] 1 WLR 1627
18. But note: resources is not an issue in deciding what SEP a child needs.
19. When considering what is ?appropriate? (for Parts 3 or 4), the LEA/Tribunal must, where it arises as an issue, have regard to the curriculum presently being followed by the child and the impact of disrupting that curriculum: W ?v- Gloucestershire [2001] EWHC Admin 481
20. The LEA/Tribunal should not simply look at the short term needs of a child in drawing up a Statement: Wilkin & Goldthorpe ?v- Coventry [1998] ELR 345 (error in only looking at the one term the child had at primary and not at what would happen at secondary too); Southampton ?v- G [2002] EWHC 1516 Admin (error in not looking at cost of whole GCSE course).
PARTS 2, 3 AND 4 ARE ENFORCEABLE; PARTS 5 AND 6 ARE NOT
21. Accordingly, Parts 2 and 3 and 4 (special educational needs, provision and placement) go together; likewise Parts 5 and 6 (non educational needs and provision).
22. Part 2 can be considered to be the ?diagnosis?; Part 3 is the ?prescription?; and Part 4 is where the prescription is to be administered. One follows from the other. The courts have held that:
(1) each need in Part 2 should be met by provision specified in Part 3: R ?v- Secretary of State for Education ex parte E [1992] 1 FLR 377, CA (follows from the definition of special educational needs)
(2) per R -v- Kingston upon Thames -v- Hunter [1997] ELR 223 at 233C:
?.... part 4 cannot influence part 3. It is not a matter of fitting part 3 to part 4, but of considering the fitness of part 4 to meet the provision in part 3.?
The decision-maker (LEA or Tribunal) must thus develop Part 2, then Part 3 then Part 4: A ?v- Barnet [2003] EWHC 3368 (Admin);
Note para 2(3) Schedule 27 proposed draft statement must say nothing in Part 4 (i.e. neither type nor name of school) (See also, section 316 below.)
cf Part 3 (provision) can be informed by Part 4 (placement), the provision to be made must still be set out in proper detail in Part 3: S ?v- Swansea [2000] ELR 315 ? wrong.
(3) Where Part 2 identified an educational need for a ?behaviour management programme ?. Applied rigorously by all care givers? that necessitated specification in part 3 of 24 hour provision (as it happens need for a specialised and structured curriculum outside school hours). The Tribunal was entitled to compare the independent boarding school and the LEA special school+respite placement and conclude that only the former could make the provision: Oxfordshire ?v- M [2002] EWHC 2908, [2003] ELR 718
23. The relationship between Part 5 and 6 is essentially the same. Needs in Part 5 should be matched by Provision in Part 6.
24. The key difference between Parts 2/3 and 5/6 is that, by section 324(5)(a)(i), an LEA is under a statutory duty to arrange the special educational provision set out in Part 3 (unless the parent has made suitable alternative arrangements); but it is not under a duty in relation to the non-educational provision in Part 6.
25. The duty in relation to Part 3 can be enforced through judicial review proceedings in the High Court (for which the child is likely to get ?legal aid?): R ?v- Harrow ex parte M [1997] FCR 761, VA ?v- Cumbria [2003] EWHC 232 (Admin).
26. In such proceedings, where the Statement was the subject of an appeal to the SENT, the court can and will look at both the statement and the Tribunal's decision to ascertain the detail of the provision which must be made: E ?v- Flintshire [2002] EWHC 388 (Admin) (in which the Statement specified only "small groups" but the Tribunal had clearly been proceeding on the basis that the group size was a maximum of 3; held: although the group could lawfully be 2 staff to 6 children, the ratio of 1:3 had to be maintained by reference to the SENT decision).
THE BOUNDARY BETWEEN ?EDUCATIONAL? AND ?NON EDUCATIONAL?
27. This can lead to substantial debate over what might otherwise appear to be semantic questions. Thus, for example, the question arises as to whether, say, speech therapy is ?educational? provision (i.e. to be included in Part 3 and enforceable) or ?non educational? provision (i.e. to be included in Part 6 and unenforceable); similarly, residential accommodation. Accordingly, parents will generally want provision to be in Part 3; while LEA?s will want it in Part 6.
28. In terms of what is a ?special educational need? being, for example, Jewish, does not amount as such to a special educational need for which special educational provision must be made: G ?v- Barnet [1998] ELR 480; but, where the child had emotional needs which were undoubtedly educational and which required her (for example) to be with Jewish peers, they were special educational needs requiring special educational provision in the form of an appropriate peer group and school environment: A ?v- Barnet [2003] EWHC 3368; also R ?v- Secretary of State for Education ex p E [1996] ELR 312
29. It is well established in terms of what is ?special educational provision? that:
(1) speech therapy can be ?educational?: R ?v- Lancashire ex parte M [1989] 2 FLR 279, CA.
(2) likewise occupational therapy: B ?v- Isle of Wight [1997] ELR 279
(3) physiotherapy B ?v- Isle of Wight [1997] ELR 279
(4) and residential provision G v Wakefield Metropolitan District Council & Anor 96 LGR 69 Laws J
(5) but not nursing care and medical oversight City of Bradford -v- A [1997] ELR
(6) nor supervision at night in relation to a sleeping difficulty: W v Leeds City Council [2004] EWHC 2513 (Admin)
30. In Bromley ?v- SENT [1999] ELR 260, the Court of Appeal held that the question of whether any particular provision is educational or non-educational (or a mixture of both) is not a question of law; rather, it is a matter for the LEA and, on appeal, the Special Educational Needs Tribunal.
31. Accordingly, there is no judicial guidance on how to decide in any particular case whether provision is educational or non-educational for this child. See thus, B -v- Isle of Wight, McCullough J:
?All that anyone can do when judging whether a ?provision? is educational or ?non educational? is recognise that there is an obvious spectrum from the clearly educational (in the ordinary ?schools? sense of the word) at one end to the clearly medical at the other, take all the relevant facts into account, apply common sense and do one?s best.? [underlining added]
32. But note the Code of Practice (January 2002) states that speech therapy should be treated as educational unless there are ?exceptional reasons for not doing so? (para 8.49).
33. Note that the fact that, say, speech therapy, is normally the domain of the health service is irrelevant. If the child has an educational need for speech therapy, then it must be specified in Part 2 and provision to meet the need specified in Part 3. If it turns out that health is prepared to make the provision then all the better. But if it decides not to (as it lawfully can), then the LEA must make the provision, by, for example, purchasing provision from health, or privately.
34. See also the logic of the analysis in X ?v- Caerphilly CC [2004] EWHC 2140 (Admin):
?Since the form of therapy recommended by Ms Kelly related to Y?s poor social interaction, independence and self-help skills, and since those skills were regarded by the LEA as learning skills for which educational provision had to be made (see Part 2 of the statement), the Tribunal should have held that the therapy which was needed to improve those skills should have been included in Part 3 of the statement, and not Part 5.
PART 3 MUST ?SPECIFY? THE SPECIAL EDUCATIONAL PROVISION
35. In the light of the ?enforceability? of Part 3, the law requires the provision described in Part 3 to ?specify? the provision which is to be made. A high degree of specificity is required.
36. ?The real question ? is whether [the statement] is so specific and so clear as to leave no room for doubt as to what has been decided and what is needed in the individual case? (per L ?v- Clarke and Somerset [1998] ELR 129).
37. Examples: M ?v- Brighton and Hove City Council [2003] EWHC 1722 (Admin): condemning as impermissibly ambiguous (especially the last sentence)
?Opportunities for individual an/or small group support within class and a withdrawal basis as considered appropriate to target literacy difficulties and specific areas of the curriculum. J needs to be in a class setting with others who have similar severity of specific learning difficulty and work across the curriculum. He needs to be taught by specialist teachers trained in teaching pupils with severe specific learning difficulties.?
38. The requirement to specify is "not a bureaucratic purpose?. by that provision, local authorities ? and tribunals? are required to give full and adequate specific consideration to the needs of the child? the requirement for specificity outlaws ? a general statement ?. in such broad terms that it could lead to specific needs being ignored or inadequately focussed upon?. the second purpose is that, once made in terms which are specific the purpose of the provision can be furthered and effected by enforceability?.": E ?v- Flintshire [2002] EWHC 388 (Admin). The legislative purpose is "to require focussed and express consideration to be given to the specific needs of a child and then to provide for them in terms which will further and effect its enforceability as a provision?" IPSEA Ltd ?v- Secretary of State for Education [2002] EWHC 504 (Admin).
39. Provision should be quantified except, exceptionally, by reference to the ?changing needs of the child? (per para 8.37/8.38 Code of Practice). A child?s needs may be ?changing? in that way because the child itself is changing or because of the interaction between the child and its environment: IPSEA ?v- Secretary of State [2003] EWCA Civ 07; but not because of external factors or changes.
40. Part 3 should thus describe all aspects of the provision which differs from the provision normally made in mainstream schools. Thus:
(1) class sizes: H ?v- Leicestershire[2000] ELR 471
(2) staff qualifications/experience: eg ?"teacher who is experienced in working with pupils who have significant learning difficulties and autism/communication disorders": R ?v- Wandsworth ex parte M [1998] ELR 424
(3) where small group work is involved, the size of the group, the length and frequency of the sessions: L ?v- Clarke and Somerset[1998] ELR 129
(4) likewise for 1:1 work: L ?v- Clarke and Somerset [1998] ELR 129
(5) likewise for input from other professionals, such as sessions of speech therapy: R ?v- Harrow ex parte M [1997] FCR 761
41. Part 3 also specifies the extent of any disapplication from the National Curriculum.
42. Arguably, Part 3 can also specify that a child is placed in a different year group to that indicated by their age: C ?v- Lambeth [2003] EWHC 1195
CAN PART 3 LEAVE THE SPECIFICATION OF PROVISION TO A FUTURE ASSESSMENT?
43. Note, in general, that the Statement must actually set out what has been decided. It cannot leave matters over for future assessment, such as:
(1) the extent of disapplication from the National Curriculum: C ?v- SENT and Greenwich [1999] ELR 5.
(2) the nature of other provision (say speech therapy) which is to be provided: Re A [2000] ELR 639.
(3) E ?v- Rotherham MBC [2002] ELR 266, [2001] EWHC Admin 432 condemning a statement which provided for SALT as follows:
? The programme is to be established by a therapist and delivered by teaching and child support assistants.
? ? delivered by a combination of individual and small group activities, but to include no less than 15?20 minutes daily of individual support from a child support assistant.
? ? monitored at least weekly by a speech and language therapist and [C] is to be seen at least monthly by a speech and language therapist for an individual session lasting at least 30 minutes.
? formally reviewed every 6 months by a speech and language therapist.
? Any change in the level [of] support will require a formal discussion between the LEA, the NHS Trust and one or both of [C]?s parents, but the above level of support is to remain at no less than the present level until June this year.?
44. The problem with not specifying/quantifying is that:
(1) a parent cannot appeal against the outcome of such an assessment; and
(2) the provision identified as being needed as a result of the assessment is not legally enforceable (because it is not actually specified in the Statement)
45. But note E ?v- Newham [2003] EWCA Civ 07 in which the CA held as lawful a Tribunal which left it to therapists to decide how much therapy the child should receive following a future assessment. But the court made clear that this was an exceptional course justified by the exceptional facts (child to attend special school but having been out of school for a long time and urgently needing to return). But that appears contrary to the decision in R ?v- Secretary of State for Education ex parte E [1992] 1 FLR 377, CA (namely that the LEA must determine the provision in Part 3 and cannot delegate it to e.g. a school)
PARENTS (OR ANOTHER AGENCY) CANNOT BE REQUIRED TO MAKE EDUCATIONAL PROVISION BY A STATEMENT
46. By section 324 of the 1996 Act, the LEA is under a duty to arrange the provision in a statement unless parents have made suitable alterative arrangements.
47. Accordingly, a Statement cannot lawfully specify (in Part 3 or 4) provision which is to be made by parents: A ?v- Cambridgeshire [2002] EWHC 2391 Admin, [2003] ELR 464. For example, a Statement which specified a programme for autistic children which the parents required to deliver on behalf of the LEA (i.e. not simply organise with funding from the LEA) was unlawful: DM & KC ?v- Essex [2003] EWHC 135 Admin.
48. On appeal, the Tribunal should look at what a statement requires of parents and ask whether it is ?educational? or ?special educational provision?: KW ?v- Rochdale [2003] EWHC 1770 (Admin). See thus Tottman ?v- Hertfordshire [2003] EWHC 1725 Admin [2003] ELR 1725 ([2003] EWCA Civ 1893) in which the Tribunal lawfully found that there was no need for educational provision out of school hours (there was merely a need for ?consistency of approach?).
49. Note thus that Statement which specified a ?24 hour curriculum? (or equivalent) could thus not lawfully specify only a day placement. DR ?v- Sheffield [2002] EWHC 528.
50. Similarly, where it was accepted that the child required the educational provision set out in Part 3 on a out of hours basis, that could not lawfully be achieved by simply a reference in Part 6 to a social services ?package of care? (especially where that was unparticularised): HW ?v- Bedfordshire [2004] EWHC 560 (Admin).
PART 3 CAN REFER TO RESOURCES BUT THE LEA REMAINS REPONSIBLE FOR ARRANGING PROVISION
51. Part 3 can make reference to the arrangements for funding the provision which is set out (eg the balance between school and LEA or health and LEA): R ?v- Cumbria CC ex parte P [1995] ELR 337.
52. But the LEA remains ultimately responsible for making the provision if the other party fails to do so: R ?v- Oxfordshire ex parte C [1996] ELR 153; R -v- Hillingdon ex parte Queensmead School [1997] ELR 331.
53. See also para 8.6 of the Code of Practice.
PART 4: PLACEMENT
General
54. Note that the decision as to whether a particular child should be placed at a particular school must be based on the particular child and their particular needs. The fact that there are other children with greater SEN whose needs are being met by the school is irrelevant: MMB ?v- Hillingdon [2004] EWHC] 513 (Admin)
Type/Name
55. Part 4 must set out the ?type of school? which is considered appropriate (eg mainstream, special, residential, MLD, EBD, etc). (But see below in relation to the designation of special schools.)
56. But, unless para 3(3) of Schedule 27 compels it, there is no absolute legal obligation to name a particular school: Richardson ?v- Solihull [1998] ELR 319. However, where the LEA/Tribunal has identified ?mainstream? as the ?type?, then it should normally name a particular school: MH ?v- Hounslow [2004] EWCA 770 (see further below).
57. Note, however, that an appeal lies against a refusal to name a school: section 326(1A)(c) (unless the Statement is produced pursuant to an order of the Tribunal ? s326(2)(a)).
Evidence/procedure
58. The choice of placement must be informed by appropriate evidence and with due notice to all concerned. Thus, the Tribunal erred when naming a PRU which had first been suggested in the course of the hearing and in relation to which there was very little evidence: T ?v- Islington [2001] EWHC Admin 1029 [2002] ELR 1029. See recently. See recently Southwark ?v- Animashaun [2005] EWHC 1123 (Admin):
?I have to say that I should expect a Tribunal normally to require, at the very least, to have the prospectus of the schools named in a statement of special educational needs; if not, then a written statement from a member of staff or the proprietor, or oral evidence from a member of staff or proprietor. The inexpert evidence of a parent will rarely be sufficient.?
59. Tribunal should consider adjourning before naming an unnecessarily expensive provision where other, less costly, provision may be suitable: Richardson ?v- Solihull [1998] ELR 319 (see Hereford & Worcester ?v- Lane), but note: Rhondda Cynon Taff ?v- V [2001] EWHC Admin 823, [2002] ELR 290: the LEA should have drawn the Tribunal?s attention to the possibility of alternatives (and thus invited an adjournment)
Para 3(3) of Schedule 27 ? parental request for maintained school
60. If (per para 3(3) of Schedule 27 of the 1996 Act) the parent has requested that a particular maintained school should be named, then Part 4 must name that school as long as it is:
(1) suitable to meet her or her needs;
(2) his/her attendance would be compatible with the provision of efficient education for the children with whom he/she would be educated and the efficient use of resources
61. Note, in relation to the ?efficient use of resources? that:
(1) the mere fact that the parentally-preferred provision is a bit more expensive is not an automatic barrier under para 3(3) as above to placement; the LEA/SENT must balance the ?parental factors? against any extra cost: C ?v- Lancashire [1997] ELR 377
(2) It is only if the extra cost is ?significant? that the parentally preferred placement is automatically displaced Surrey CC -v- P [1997] ELR 516
(3) the ?efficient resources? are those of the LEA responsible (not LEA?s generally): B ?v- Harrow (No 1) [2000] ELR 109 such that:
(a) the LEA can take into account the cost of an out-of-area placement if that is requested; and
(b) the LEA can take into account ? in a special school funded on a place-led basis ? the ?wasted? cost of not placing the child at the school.
Section 9 ? parental request for independent school
62. There is no equivalent obligation if the parent does not request a particular school, or asks for an independent or non-maintained school or in relation to elements of expenditure beyond those of the LEA.
63. In those cases, parental preference comes into play under section 9 of the 1996 Act (regard to be had to the principle that education in accordance with parental wishes unless that involves unreasonable public expenditure) and there is no obligation (as such) to give effect to such preference: C ?v- Buckinghamshire [1999] ELR 179, CA.
64. Under section 9, it seems that the ?public expenditure? in play is that of the LEA, and not the public purse generally: S ?v- Somerset CC [2002] EWHC 1808, [2003] ELR 78. But there are good arguments to say that decision is wrong: B ?v- Harrow (No 1) [1998] ELR 351 in the Court of Appeal (overturned in the House of Lords but not on this point; also the Court of Appeal in S ?v- Somerset CC [2003] EWCA Civ 195), Simon Brown LJ observed that the language of section 9 referred to ?public resources generally?. Also HW ?v- Bedfordshire [2004] EWHC 560 Admin and G ?v- Harrow [2004] EWHC 237 (Admin)
65. For example: see Oxfordshire ?v- M [2002] EWHC 2908, [2003] ELR 718 (Tribunal compared the cost of the independent boarding school with the cost of the LEA special school+respite placement cost)
66. Under section 9, it is only the marginal (i.e. additional) cost of the placements under consideration which is relevant; thus, if the taxi is already provided, or the LSA could look after a second child at no extra cost, then there is no additional public expenditure: Oxfordshire ?v- GB [2001] EWCA 1358, [2002] ELR 8, CA
67. When considering the cost balance, the LEA/Tribunal should look at the effect over time of the choice of placement ? thus the Tribunal erred in not taking into account the fact that, at the parentally preferred school, a year extra would be needed to complete GCSEs: Southampton ?v- G [2002] EWHC 1516 Admin.
68. As to what is ?unreasonable?, note Wardle-Heron ?v- Newham [2002] EWHC 2806 (Admin) in which the judge remitted back to the Tribunal for it to consider whether the extra cost was ?unreasonable? a case in which the LEA package would cost £5,641 and the parental package £12,286, thus recognising that the difference need (nearly £7k) was not necessarily ?unreasonable?.
Human Rights
69. By virtue of Article 2 Protocol 1 ECHR (via s6 Human Rights Act 1998), parental religious or philosophical convictions (if raised at the time: S ?v- Hackney [2002] ELR 45) must in choice of school must be ?respected? ? which implies a positive obligation going beyond treating them as being merely material.
70. Note that a philosophical conviction in favour of ?inclusive education? seems not to be a ?philosophical conviction?: T ?v- Wiltshire [2002] EWHC 1474, [2002] ELR 704 (but not central to the case and doubtful correctness; but see also section 316 1996 Act ? presumption in favour of mainstream).
71. A statement naming a residential school where parents want a day school is not in violation of Art 8(1) ECHR (right to respect for family life) ? because any violation would only come if a school attendance order was made ? but, in any event, such interference can be justified (on the facts) under Article 8(2): CB ?v- Merton [2002] ELR 441
Section 316 ? Presumption in favour of Mainstream Inclusion
72. Note the ?new? section 316 of the 1996 Act: statutory presumption in favour of mainstream (unless parents object) as explained by the Court of Appeal in MH ?v- Hounslow [2004] EWCA 770
73. DFES Guidance 0774/2001, para 22:
?The starting point is always that children who have statements will receive mainstream education. The new section 316 states that a child who has special educational needs and a statement must be educated in a mainstream school unless this would be incompatible with ?
(a) the wishes of the child?s parents;
(b) or the provision of efficient education of other children.
These are the only reasons why mainstream education can be refused outright.?
74. Paragraph 24
?Mainstream education cannot be refused on the grounds that the child?s needs cannot be provided for within the mainstream sector. The general duty assumes that with the right strategies and support most children with special educational needs can be included successfully at a mainstream school. The local education authority should be able to provide a mainstream option for all but a small minority of pupils. Local education authorities should look across all of their schools and seek to provide appropriate mainstream provision where possible. ?.?
75. Where either the parent has not expressed a preference under para 3(3) of Schedule 27, or their preference has been rejected by the criteria under that paragraph (suitability, compatibility with education of others, compatibility with efficient use of resources), then the LEA/Tribunal nonetheless goes on to give effect to section 316.
76. First consider ?type? of school: ?suitability? is no longer an issue when considering whether to specify mainstream as a ?type? in Part 4.
77. The only issue is whether the placement would be incompatible with the education of other children (section 316(3)(b)) and that incompatibility cannot be removed by the taking of ?reasonable steps? (section 316A(5)/(6)).
78. In effect, the statute deems that, for all children, mainstream is suitable or can (and thus must) be made suitable, unless that results in incompatibility with the education of others. That requires the LEA/Tribunal to consider (and include in Part 3) the additional support the child requires to make the placement suitable.
79. The burden of showing incompatibility with the education of others (or the unreasonableness of the steps required to remove the incompatibility) is on the school/LEA.
80. Once the LEA/Tribunal has concluded ?mainstream? as type, then, by virtue of paras 30 and 32 of the Guidance, it should ?normally? exercise its power identify and name particular school for naming (even though not under an absolute legal obligation to do so, as above).
81. When it does so, there is no role for para 3(3) Schedule 27 or the factors which arise under it.
82. On appeal, having identified mainstream as the type the Tribunal must thus consider all candidate mainstream schools suggested to it by the LEA and/or parents; and assess them only against the section 316 criteria (incompatibility with the education of others); the parents cannot insist on their preference being met (only para 3(3) of Schedule 27 allows them to do that) although section 9 of the 1996 Act remains in play.
83. Accordingly, if the parent wants mainstream:
(1) If they have expressed a preference under para 3 of Schedule 27, consider it by reference to that paragraph first.
(2) Unless one of the disqualifiers applies, they have a right to that placement.
(3) If one of the disqualifiers bites, the consider the type of placement under section 316.
(4) Unless incompatible with the education of others and the steps to remove the incompatibility are unreasonable, then must specify mainstream as a type in Part 4.
(5) Should then try and identify a particular placement.
(6) All mainstream schools put forward by either parent or LEA are candidates including the school put forward by the parent under para 3 (and rejected under para 3).
(7) But the parent does not have a right to have that same school named, only a right to have it considered as a candidate, albeit helped by section 9 (the general duty to educate in accordance with parental preference subject to unreasonable expenditure)
(8) It may thus be necessary (to comply with section 316) to prescribe additional provision to make ?suitable? that which was considered ?unsuitable? (per para 3 of Schedule 27).
84. Note that section 316 does not apply when considering a parental request under Schedule 27 to change the name of the placement in Part 4: Slough ?v- SENDIST [2004] EWHC 1759 (Admin)
Multiple schools in Part 4
85. Part 4 can name more than one school. For example:
(1) where there are several which would be appropriate, the LEA may wish to name them all;
(2) the parents have placed the child, at their own expense, at an independent or non-maintained school, the LEA may wish to record that fact in part 4 and name in part 4 the school at which the LEA would place the child if the parents were to cease to make alternative provision. See also section 324(4A). (Note that parents cannot compel the LEA to pay the extra SEN provision element of an independent school place while paying the basic fees themselves: section 348; also Aladay ?v- Richmond [2004] EWHC 1290 Admin.)
Provision out of school (including home programmes)
86. By section 319 1996 Act, LEA can make provision out of school if appropriate provision cannot be made in school. The first question to be asked is what does the child need (i.e. decide on Part 3) then decide if that can be provided in school: S ?v- Bracknell Forest [1999] ELR 51. If the provision can be made in a school then there is no power under section 319 to provide it ?otherwise?: Shirley C ?v- Brent [2003] EWHC 1590 Admin, [2003] EWCA Civ 1773. Parental view (e.g. in support of a home programme is not relevant in deciding whether the school can indeed make appropriate provision: T ?v- Wiltshire, [2002] EWHC 1474, [2002] ELR 704; M ?v- Brent [2003] EWHC 482 Admin (but both arguably wrong: A ?v- Birmingham [2004] EWHC 156 (Admin)
87. Where a ?home programme? is identified (e.g. Lovaas) that should be described in Part 3 and can also be described in Part 4: Wandsworth ?v- K [2003] EWHC 1424 Admin, [2003] ELR 554
Maintained School must Admit
88. Where maintained school is named in Part 4, then that school must admit the pupil (section 324(5)(b) 1996 Act; R ?v- A&S School ex parte T [2000] ELR 274)
Special School designation
89. For placements at maintained special schools, note that, since 1st September 1999 (when the maintained special school regulations were replaced), the child?s needs do not have to correspond to the ?designation? of the school by the Secretary of State (eg ?MLD?, ?EBD?, etc) as long as the child is placed pursuant to Statement.
90. Also, that in relation to such designations, in law the question of whether a child has SLD (severe learning difficulties) or MLD (moderate learning difficulties) is not to be determined by reference to IQ: E ?v- Hampshire [2000] ELR 651, CA.
91. Note also that there is no requirement for all of a child?s needs to be met exclusively at the school in question itself. Per section 319 1996 Act, an LEA can make provision (or part provision) out of school.
Fees of independent placements
92. Where a Statement names an independent school, the LEA must pay the whole of the fees as well as the costs of boarding where boarding is necessary (i.e. part funding is not lawful) ? 1996 Act s517; although an LEA may make grants towards an independent school placement for a child without a statement and is not bound by the Part IV gateway of ?learning difficulty? in deciding to do so: 1996 Act s18: Southern ?v- Oxfordshire 23rd January 2004
PART 6 - TRANSPORT
93. LEA is under a duty to provide transport where they consider it necessary for facilitating attendance at school: 1996 Act s509(1).
94. In deciding what is necessary must look a the age, route, etc: s509(4).
95. Parents under a duty to ensure their child receives suitable education: Education Act 1996 s7
96. Offence not to secure attendance at school at which pupil is registered: 1996 Act s444(1)
97. But not an offence if the nearest available school is more than 2 (or 3 ? for over 8s) miles away.
98. Accordingly, in effect, an LEA must provide transport for a child beyond the specified distances: R (Jones) Ceredigion County Council [2004] EWHC 1376 (Admin)
99. Applies equally to children with SEN/statements.
100. Transport must be ?non-stressful?: R ?v- Hereford & Worcester ex p P (1992) 2 FCR 732.
101. For a child with a Statement, the transport would be ?non-educational? ? i.e. Part 6. And even then, per 8.89 of the Code it would only exceptionally be put into the Statement (where child has particular transport needs). But, of course, the LEA remains under a s509 duty to provide.
102. And, of course, for a child with special educational needs (particularly mobility difficulties) even if the school is less than 2/3 miles away, the LEA may still have to provide the transport; and its cost would be a factor in a costs comparison as part of the LEA?s expenditure. (And not to do so could be a breach of the child?s right not to be discriminated against in contravention of Article 14 ECHR in relation to its educational rights under Article 2 of Protocol 1 ECHR).
103. Where a placement is agreed in the light of a parental commitment to transport, that should be clearly recorded in the Statement.
Education otherwise
104. Education Act 1996 - Section 19
105. LEA must provide suitable education for children for whom it is not otherwise available by reason of ?illness, exclusion from school or otherwise?
106. ?or otherwise? covers any situation (other than illness or exclusion) in which it is not reasonably possible for a child to take advantage of any existing suitable schooling; the parents? unreasonable objections to a particular school do not make it unavailable; but if, for example, 3 children at the school were facing criminal charges of sexually assaulting the child, it might not be ?reasonably practicable? for the child to attend the school: G ?v- Westminster City Council [2003] EWCA Civ 45; see also S ?v- West Sussex [2003] EWHC 2319 (Admin) ? not irrational to serve a school attendance order where there has simply been a breakdown of relations in respect of what is otherwise a suitable school
107. LEA resources cannot be taken into account in deciding what is suitable?: Tandy ?v- East Sussex County Council [1998] 2 WLR 884 (HL); nor is lack of resources an excuse for not providing suitable exudation to the child and the LEA must use its best endeavours to provide suitable education: R ?v- Worcestershire [2005] ELR 48.
108. LEA required to provide ?suitable? education ? but it is for the LEA to decide what is suitable: T -v- East Sussex County Council, 23 April 1997, Keene J (point not revisited on appeal)
109. Circular 11/99 ? sick children should be enabled to benefit from as much education as their illness allows ? para 4.5; excluded pupils should receive suitable full time education ? para 5.1 (being 5 hours supervised education or other activity a day ? para 5.18).
110. Note potential DDA claim if a disabled child is provided with less ?education otherwise? than a child without a disability without justification: VK ?v- Norfolk [2004] EWHC 2921 (Admin)
SPECIAL EDUCATIONAL NEEDS AND COMMUNITY CARE
111. Children?s special educational needs rarely arise in isolation. Often they arise alongside medical or ?community care? needs. Unsurprisingly, the legal regimes are also linked and, to some extent, overlap.
112. By section 324(5)(a)(ii) of the 1996 Act, an LEA may arrange (but is not obliged to arrange) any non-educational provision specified in (Part 6 of) a child?s Statement.
113. Under the 2001 Special Educational Needs Regulations, Part 6 of a Statement specifies any non-educational provision which the LEA proposes to make or which they are satisfied will be made available by a health authority (now through a Primary Care Trust (PCT)) or social services authority.
114. The provision which an LEA can make includes:
(1) residential provision (made under section 18 and/or Part IV of the 1996 Act). But note section 517 of the Education Act which only allows an LEA to pay the boarding fees at independent schools if education cannot be made with "reasonable convenience" at a maintained school; and which precludes "fee sharing" arrangements; and
(2) transport provision under section 509 of the 1996 Act.
115. By section 322(1) of the 1996 Act, an LEA may request the help of a health authority or social services authority in the exercise of their functions.
116. By section 322(2), the requested body must comply unless they consider that the help is not needed or, having regard to the resources available to them, they consider it not reasonable to comply. (See R ?v- Brent HA ex parte LB Harrow [1997] ELR 187 a health authority can lawfully have a policy under which it provides only limited ?therapy?.)
117. Health Authorities will typically be involved in the provision of matters such as speech therapy, occupational therapy and physiotherapy.
118. By section 47 of the National Health Services and Community Care Act 1990, a social services authority is required to assess a person?s need for ?community care services?.
119. Such services include services under section 29 of the 1948 which are provided by virtue of section 2 of the Chronically Sick and Disabled Person?s Act 1970 which are, in turn, applicable to disabled children and children in need by virtue of section 28A of the 1970 Act.
120. The overall effect is a duty on the social services authority to assess the need for, and then provide as needed, provision including:
(1) assistance at home
(2) assistance in attending recreational and educational facilities outside the person?s home;
(3) assistance with travelling (including to educational establishments);
(4) assistance with works of adaptation to the home;
(5) assistance with taking holidays;
(6) assistance with the provision of meals.
121. Once the social services authority have assessed a person as needing such provision, they are under a duty to set it out in a "care plan" (cf a Statement of Special Educational Needs) and provide it. Provision cannot be refused on resources grounds, but "needs" can be assessed by reference to criteria which are informed by the resources available to the authority: R v Gloucestershire ex p Barry [1997] AC 584
122. Social services authorities also have obligations under section 17 of the Children Act 1989 to assess children ?in need? (including disabled children) with a view to providing services (including respite care, accommodation and other services) under that Act.
123. Note that a social service authority's duty to provide accommodation under section 21 of the 1948 Act does not apply to persons under 18. However, they have a power (but not a duty) to make such provision under section 17 of the 1989 Act (section 17 provides merely a target duty): A v Lambeth (2001) 4 CCLR 487 and W v Lambeth[2002] EWCA Civ 613 3rd May 2002.
124. In deciding whether to make community care provision, a social services authority is entitled to take account of the provision other bodies are likely to make: Spink ?v- Wandsworth [2005] EWCA Civ 302.
125. Note the special position of children in care ? the social services authority is under a duty to provide accommodation (such that it may be that both education and social services are under a duty).
126. Note thus the overlaps between:
(1) residential provision ? pursuant to the 1996 Act (LEA) and the 1989 Act (Social Services); and
(2) transport provision ? pursuant to the 1996 Act (LEA) and the 1948/1970 Acts (Social Services)
127. In accordance with the decision in Bromley ?v- SENT [1999] ELR 260 the distinction between whether particular provision is educational or non-educational is not a sharp one; see thus, for example: Oxfordshire ?v- M [2002] EWHC 2908 (court upholding Tribunal ordering LEA to provide a residential placement as educational).
128. Where Part 2 identified an educational need for a ?behaviour management programme ?. Applied rigorously by all care givers? that necessitated specification in part 3 of 24 hour provision (as it happens need for a specialised and structured curriculum outside school hours). The Tribunal was entitled to compare the independent boarding school and the LEA special school+respite placement and conclude that only the former could make the provision: Oxfordshire ?v- M [2002] EWHC 2908, [2003] ELR 718
129. Note also those things which have been expressly said to be for social services and not education, such as supervision at night in relation to a sleeping difficulty: W v Leeds City Council [2004] EWHC 2513 (Admin)
130. Note Section 9 of Education Act ? as above.