Special educational needs provision: Legal Update

A recently published Local Government and Social Care Ombudsman report has criticised the actions of Cornwall Council that led to a boy with special educational needs, who had been excluded from his primary school because of behavioural problems, missing out on full-time education for 12 months. The ombudsman found this was because the relevant teams in the council did not communicate adequately with one another, and too high a threshold was used for deciding whether or not to assess the boy for an education, health and care (EHC) plan.

An EHC plan assessment had been requested by the boy's family, a social worker, an autism needs adviser, and an educational psychologist, but the council's education panel decided there was insufficient evidence that the boy met the threshold. It was only after a year, and two further requests for assessment, that one took place. The final EHC plan established that a significant amount of help was needed to allow the boy to receive an education and manage his emotions and behaviour.

Suitable education

Under section 19 of the Education Act 1996, councils have a duty to make arrangements for the provision of suitable full-time education at a school or elsewhere for children of compulsory school age who, "by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless arrangements are made for them". "Suitable education" means efficient education appropriate to a child's age, ability and aptitude and to any special educational needs he may have. Statutory guidance on "alternative provision" states that, while there is no statutory requirement as to when suitable full-time education should begin for children placed in alternative provision for reasons other than exclusion, councils should ensure children are placed as quickly as possible.

There are two stages of support for meeting the needs of children with special educational needs (SEN): additional SEN support and an EHC plan. "Additional SEN support" is designed to help remove any barriers the child has to learning and put in place additional provision. If a child fails to make progress at the "additional SEN support" stage, a request can be made to the local authority, by either the parents or the child's school, for them to carry out an EHC needs assessment. This would be with a view to the child being placed on an EHC plan, which sets out the child's SEN and the provision required to meet them.

Needs assessment

The Special Educational Needs and Disability (SEND) Code of Practice Statutory Guidance provides that the process of EHC needs assessment and EHC Plan development "must be carried out in a timely manner" and the whole process, from the point when an assessment is requested until the final EHCP is issued, must take no more than 20 weeks. The guidance sets out that a council should take into account "a wider range of evidence" when considering a request for an assessment while the case of Cambridgeshire County Council v FL-J [2016] UKUT 0225 clarified that "the authority or tribunal does not have to decide at this initial stage whether special educational provision ‘is necessary'… it is only when an assessment has been made that a definitive decision has to be made". As part of the investigation into this case the ombudsman made clear that "the threshold for deciding an EHC plan assessment is low - a council only needs to be satisfied a child may have special educational needs and may require provision. In this case there was ample evidence the boy met this".

The council agreed to pay the family £3,500 to recognise the injustice caused and to fund additional activities for the boy to suit his needs, and to produce guidance for its children's services and education departments about information sharing and responsibilities around children with SEN who are either out of education or not receiving full-time education. It also committed to amending its guidance on children eligible for an EHC plan assessment.

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