Hi nickminiink
As Agnes says, the Statement of Educational Need is a legal document which sets out both your child's strengths and weaknesses (in Part 2) and the provision which must be actioned in order to ameliorate the weaknesses and enhance the strengths (in Part 3).
Although a Local Authority can delegate the actioning of the provisions stated in Part 3 of a Statement, they ultimately remain responsible:
"1:30 Whatever arrangements are made for meeting the needs of children with SEN in a particular setting, the general duty to identify and make provision for children with SEN remains with the LEA." SEN Code of Practice (SEN CoP) Pg. 30
Even if a school has been delegated funds as part of a formula (usually for children who have a 'high incidence' SEN such as general Learning Difficulties, Dyspraxia; Specific Learning Difficulties Behavioural and Social Difficulties etc.) as opposed to being given specific ring-fenced funding for the needs of a particular child (usually for 'low incidence' SEN such as hearing loss, Moderate/Severe Autisms, Physical Disability, Genetic abnormalities, etc.), if the school does not act on the provisions in Part 3 of a Statement, the LA can step in and make arrangements for the necessary provisions themselves and bill the school:
"8:6 However resources are provided, schools and LEAs have specific duties in relation to children with special educational needs which funding for SEN should support. Community, foundation and voluntary school governing bodies are required under section 317 of the Education Act 1996 to use their best endeavours to see that pupils with special educational needs receive the help their learning difficulties call for. They are accountable through their reports to parents for how resources are allocated to and amongst pupils with special educational needs and the effectiveness of their provision for SEN. LEAs have a duty under section 324 of the Education Act 1996 to arrange the special educational provision in a child?s statement. LEAs may provide the facility in their funding arrangements to intervene where a pupil is not receiving the provision in their statement and make the arrangements themselves, charging the costs to the school?s budget." (SEN CoP pgs. 95-96)
A Note in Lieu, however, does not share the same legal status as a Statement of SEN. A note in Lieu is a declaration by the LA that the school should be able to manage and meet the needs of the child in question, from within their own budget.
"8:15 ...They [the LA] may conclude that the child?s special educational needs can be met from within the school?s own resources, with or without the intervention of a professional service from outside the school ? that is special educational provision can be made through School Action or School Action Plus....
8:16 The decision not to issue a statement may be disappointing to parents and be seen as a denial of additional resources for their child. The LEA should ensure that the parents (and the school) are aware of the resources available within all maintained schools to meet special educational needs; that the parents fully understand school-based provision for SEN; and understand too that there are monitoring and review arrangements in maintained schools which will ensure that their child?s needs are met by the school, with external support if necessary, in an appropriate way." (SEN CoP pg 98)
That isn't to say that a Note in Lieu is not a useful document. In fact, it can be as detailed as a Statement of Special Educational Need, and is often formatted in the same manner. In other words, it sets out the child's difficulties (needs) and the provision that, in the view of the LA, would meet those needs:
"8:18 ...[T]he writing of a comprehensive and useful note in lieu will very often require as much thought and time as the drafting of a proposed statement.
8:19 It may be appropriate for the format of a note in lieu to broadly follow the statutory format of the statement, although it will always be essential to make clear the different legal status of the two documents." (SEN CoP pgs. 98-99)
The crucial difference is that the Note in Lieu does not bind the school to make the provision advised in the Note in Lieu. In fact, whereas a Statement of Special Needs is subject to an annual review for accuracy of needs, progress made and appropriateness of provision (including whether the statement is still needed and whether the current school [or 'placement'] is still appropriate), the Note in Lieu is the termination of the LA's focus on the child in question:
"8:21 The statutory assessment process ends when the LEA decides whether or not they will make a statement...." (SEN CoP Pg. 99)
In order to 'review' your child's needs, you would need to apply for a new Statutory Assessment.
A Note in Lieu isn't always a bad thing. If , and you either:
a) you genuinely think that your child would benefit from the provision indicated.
b)have confidence that the school will put into place the measures suggested AND
c) that they will monitor progress in a meaningful way, with proper data
OR
c) agree that there isn't sufficient data at the current time to prove your child needs a Statement AND
d) are confident that the provision suggested will not provide the progress that would be needed to be deemed effective
e) are confident that the school will either i) keep no data to prove any progress OR ii) keep sufficient data to show inadequate progress
then you can see the Note in Lieu as preparation for your case in 6 months time:
"7:21 Parents may ask the LEA to conduct a statutory assessment under section 328 or 329 of the Education Act 1996. The LEA must comply with such a request unless they have made a statutory assessment within six months of the date of the request or unless they conclude, upon examining all the evidence provided to them, that a statutory assessment is not necessary." (SEN CoP pg. 78)
It would be very difficult for a LA to justify concluding that a statutory assessment wasn't necessary, if they have previously conducted a statutory assessment and the interventions listed in the Note in Lieu was either a) unssuccessful or b) not implemented by the school, leading to an unsatisfactory rate of progress.
In any case, you could then appeal again. You can also, as Agnes stated, continue with your appeal in the meantime, while reviewing the situation.
There are only three times that it would be unwise to accept a Note in Lieu without appeal (in my view):
- When your child is under the Statutory age of education. Before they reach school age, the LA is urged to accept an 'over-arching report' as evidence of difficulties:
"7:14 For some very young children with complex needs the LEA should accept as evidence one over-arching report from the lead professional involved with the child...." (SEN CoP pg. 76)
- If your child has suddenly had a change in their condition either through accident or ill health:
"7:14 ...This approach might also be appropriate for an older child who through an accident or ill health suddenly acquires easily identifiable complex needs that require the LEA to assess and make provision. (SEN CoP pg. 76)
Both of these situations allow for a much reduced burden of 'proof' by the parents/ carers. Rather than relying on a set of assessments, a single report which identifies the difficulties of the child, and the need for specialist provision, will suffice.
Once in school, the focus shifts from 'showing there is a complex or severe need' to 'showing that the resources of the school can't cope with the need of the child'.
- If your child is in their late teens:
"8:121 A statement will generally remain in force until and unless the LEA ceases to maintain it. A statement will lapse automatically when a young person moves into further or higher education. Therefore, if the young person, the parents, the LEA and the further education institution are all in agreement about the young person?s transfer, there is no need to formally cease the statement since the young person will cease to be a pupil for whom the LEA is responsible after leaving school, and so the statement will lapse.
8:122 By contrast, where there is agreement all-round that the pupil should stay at school post-16, and the LEA or other LEAs, have appropriate school provision, the LEA should normally continue to maintain the statement.
8:123 Where parents want their child to remain at school post 16, but the LEA considers that the young person?s special educational needs would be better met in a further education institution, the LEA cannot know whether the child still requires a statement until it has contacted the FE institution in question and confirmed that it is both able to meet the young person?s needs and has offered a place. The LEA should satisfy itself on both counts before taking formal steps to cease to maintain the young person?s statement. At that time, the LEA must also notify the parents of their right of appeal to the Tribunal and the time limits for lodging the appeal, the availability of parent partnership and disagreement resolution services, and the fact that the parent?s right of appeal cannot be affected by any disagreement resolution procedure. It is not sufficient for LEAs to have a general expectation that an FE institution should be able to meet a young person?s needs.
8:124 Where the young person?s present school does not cater for children aged 16 plus, the LEA should consider whether to amend the statement to name another school or cease the statement if an appropriate FE course is identified. The LEA should formally propose to amend the statement to name the alternative school or formally propose to cease the statement. In both cases the LEA must also notify the parents of their right to appeal to the Tribunal and the time limits for lodging the appeal. (SEN CoP pg. 118)
If your child is in their mid to late teens, you really don't want to waste time 'seeing if the LAs ideas make a difference with the school.' If you do that, you might find that you don't get a Statement in time for it to be maintained after the age of 16. It will be interesting to see what happens with the shift of compulsory education to age 18, though.
Of course, all of this is just my opinion from reading the SEN CoP (ie. I have no legal training in education law). You could probably get a more qualified opinion from IPSEA or SOS SEN.
Anyhow...I hope it is useful.