Statutory Assessments And Statements Of SEN

Statements explained

'My number one piece of advice would be to review every SINGLE word in a statement every year. I did not realise how important it was to quantify help and so we had a very woolly document where the LEA could wriggle out of most provisions.'

- A parent.

Statements are unusual in law in that, if properly drafted, they provide for the most comprehensive rights for disabled people in any area of social welfare law.

A statement should be drafted by reference to a child's needs and not directly by reference to resources, though the necessary provision to meet those needs should be set out in the statement.

With thanks to David Ruebain, education and disability lawyer (England) for compiling this article.

Assessments

The process of obtaining a statement through a statutory assessment may be commenced by an LA of its own volition, or following a request from the child's parents or school.

An assessment involves the LA obtaining reports from a number of individuals, including the parents themselves, the child in question, an LA educational psychologist, the school or early years provision, the local health and social services authorities and others.

At the conclusion of the assessment the LA will consider whether or not the evidence gathered indicates that the child requires a statement (in other words, whether the child's needs are such as to require the LA to arrange the additional or different provision - the SEP).

If so, the LA will produce a draft statement for consideration by the parents. The LA will invite comment on the contents of the statement, including which school the parents consider appropriate for the child. The LA will then consider the representations, including which school the parents have requested, and will issue a final statement. It is at this point that the statement comes into force.

Time limits for assessments

The assessment process - from first consideration by the LA to production of a final statement - should not exceed six months in total (although there are exceptions which permit that period to be exceeded in certain limited circumstances). Within this six-month period, the following specific time limits apply:

6 weeks to consider whether to conduct a statutory assessment
10 weeks to undertake the assessment
2 weeks to produce a draft statement of SEN
8 weeks to finalise the statement.

Contents of a statement

Contents of a statement The contents of statements are prescribed in law as follows:

Part 1: This must contain basic details about the child, including the name, date of birth, address, religion, home language and telephone number, together with the names and contact details of the child's parents. This part will also list the advice and evidence which the LA has obtained in the assessment and which has been considered in drafting the statement.

Part 2: This should contain details of all of the child's SEN.

Part 3: This should describe all of the SEP required to meet the needs identified in Part 2. Part 3 is often defined as being analogous to a 'prescription' to meet the 'diagnosis' of needs which has been set out in Part 2. The law requires that, usually, the provision should be particularised and detailed to a high degree, so that everyone involved in the child's education is clear as to exactly what must be arranged for them. (For example, it is not usually lawful for statements to have phrases such as 'regular speech and language therapy' since 'regular' is unclear and vague, and could mean weekly, monthly, yearly etc). Part 3 is itself subdivided into three subsections, dealing with objectives, educational provision and monitoring.

Part 4: This part should describe the school (or, exceptionally, a type of school or other provision) the child will attend.

Parts 5 and 6: These parts deal respectively with non-educational needs and non-educational provision. They are, therefore, analogous to Parts 2 and 3. However, whereas the SEP set out in Part 3 must be 'arranged' (in other words, secured) by the LA, the non-educational provision set out in Part 6 need not be.

Educational provision and non-educational provision

As a result of the above framework, there is a fair amount of law as to what should be in Part 3 of a statement (and therefore must be arranged by an LA) and is covered by Part 6 of a statement (and therefore needn't be arranged by a LA) - in other words what is, and what is not, educational. Various court cases have established that:

Most teaching and related provision is educational (Part 3).
Most speech and language therapy that a child requires is educational (Part 3).
Some (but not all) occupational therapy and physiotherapy may be educational (depending on the circumstances) (and, if so, Part 3).
Nursing support or other medical provision is unlikely to be educational (Part 6).
Transport is unlikely to be educational (although a child may still be entitled to it under another part of the Education Act 1996) (Part 6).
Shelter, warmth, nourishment and clothing are unlikely to be educational (Part 6).

Choice of school

The law relating to which school should be named in Part 4 of a statement (and therefore which school the child should attend) is complicated, with sections 9, 316 and 316A of, and Schedule 27 to, the Education Act 1996 all applying.

Where a parent seeks a state school

If a parent requests that a state school (this may be refererred to as a maintained school, whether it be mainstream or special) be named in the statement, the LA must agree to that request unless one of the following three conditions apply:

The school cannot meet the child's needs.
Other children would be adversely affected by the presence of the child at the school.
It would be an inefficient use of the LA's resources for the child to attend the school.

Where a parent seeks an independent or non-maintained special school

If a parent wants an independent or non-maintained school (in other words, not a state school), the LA must agree to this providing that it does not conflict with the duty on the LA to have regard to the efficient use of resources. In practice, this usually means that it will only agree an independent or non-maintained special school if local maintained schools cannot meet the child's SEN.

Where a parent seeks a mainstream school

statements of Special needs school choice Quite apart from state/independent consideration, if a parent wants a mainstream school (in other words, an ordinary school or a school which is not a special school) named, then in addition to the above provisions, separate parts of the 1996 Act provide that the LA must agree to this (although not necessarily the specific school that the parent has asked for). This is unless the presence of the child at a mainstream school would be incompatible with the provision of efficient education for other children and there is nothing that the school or LA can do to overcome that difficulty.

If the parent is happy with what is set out in a statement (particularly with the description of SEN in Part 2, the SEP set out in Part 3 and the school or other placement named in Part 4) nothing further need happen and the LA must arrange the SEP and the school named in the statement must admit the child.

However, if the parent does not agree with any decision of the LA regarding the assessment and statementing process, they may have a right of appeal to the Special Educational Needs & Disability Tribunal.

Reviews and reassessments

Once a statement of SEN has been made, it must be reviewed at least once a year (although a review will not necessarily lead to any changes to the statement). If a child with a statement is due to transfer to a different phase of education (for example from primary education to secondary education), their statement must be amended by 15 February preceding the September transfer (to give parents time to conclude any appeal to the tribunal before the actual transfer, should they wish). In addition, a child with a statement may be reassessed at any time a reassessment is felt necessary.

LAs are only responsible for children up to the age of 16, or up to the age of 19 so long as they remain on the roll of a school. For young people otherwise, responsibility lies primarily with their college or with the Learning and Skills Council.