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Gareth D Morewood

Mythbusting SEND: why the law still trumps all

Variability in local practice continues to cause upheaval for schools at the heart of the SEND system. Here are some of the misconceptions we need to address now.

Previously I have written about how the law trumps all as far as SEND is concerned. As we near the end of the reforms implementation period, I continue to hear first-hand accounts from practitioners of legal inaccuracies, abdicated responsibilities and convoluted processes in the SEND system.

With a number of charities and individuals offering valuable advice, I think it useful to clarify, in one place, some of the common misconceptions that keep coming up time and time again!

Myth 1: It is the responsibility of the school to arrange the provision specified in a child’s EHCP.

This is a very popular misconception, owing to differences in local policies and procedures. The local authority is legally responsible for arranging provision, not the school. There is no ambiguity here, despite what some may tell you.

Only the LA can carry out an EHC needs assessment to identify SEND. A parent/carer may have privately commissioned reports (EP/SALT for example) that they wish the LA to consider as part of the needs assessment, and can submit these as part of their views during the assessment process.

School, parents/carers, young people and professionals (including social care and health, if appropriate) should all have their voices heard as part of the needs assessment.

To quote the Education Act 1996: 'the authority shall arrange that the special educational provision specified in the statement is made for the child'. This is true not only for statements but also for EHCPs.

Myth 2: An EHCP cannot specify a particular type of therapy if it is not available from the local health service.

A therapy can be included even if that specific local service doesn’t provide it. Evidence for the requirement of said therapy would be part of the EHC needs assessment that informs the plan.

Once a child’s needs have been identified, it only matters that they are being met, not who’s meeting them.

The landmark case of R v The Secretary of State for Education and Science, ex parte E [1992] 1 FLR 377 CA ruled that ‘the statement must specify in part 2 the authority’s assessment of the special educational needs of the child ... and in part 3 the special educational provision to be made for the purpose of meeting those needs’.

This is true not only for statements but also for EHC Plans, see paragraph 9.69 of the SEN and Disability Code of Practice 2014, ‘Provision must be specified [in Section F] for each and every need specified in Section B’.

Section 21 (5) of the Children and Families Act 2014 says: ‘Health care or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision).’

Full reference from IPSEA

Myth 3: Special educational provision (SEP) can be generic and unspecified.

An EHCP needs to contain a high level of specificity in relation to Section F; this particularly means, whether or not the young person attends a special school, the special educational provision in an EHCP needs to be very clearly detailed. It cannot be a collection of generic statements such as ‘access to’, ‘opportunities for’, ‘regular’, ‘where necessary’ and so on.

Parents/carers will receive a draft plan, which they should comb through for any ‘woolly’ statements. Local parent/carer forums and Independent Supporters should support parents/carers in responding to the draft plan.

Myth 4: Schools can send a child home to ‘cool off’, or ask parents/carers to collect their child from school.

No, this cannot happen lawfully and is a common myth. Even if the parent or carer agrees to collect their child, unofficial or informal exclusions are illegal. We need to take share this very clear message and take action if we are to prevent the unlawful exclusion of young people with SEND. This cannot be clearer.

Clarity and lawful action

Anyone working in the SEND system has a duty to aspire for the best possible outcomes for young people. Volunteering for IPSEA was an invaluable opportunity to consolidate my own understanding of the law.

Drawing on that experience, and my regular discussions with SENCOs and families, I hope I’ve drawn you to some of the common areas that come up time, and time again. Hopefully together we can keep banging that drum, and remember that the law trumps all!

Further reading

More from Optimus

SEND: the E is not for exclusion

Even for governors, the law still trumps all!

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