Children with special education needs (SEND) who don't have an EHCP (Education, Health and Care Plan) should have provision made for them in school through ‘SEN Support'.
What is SEN support?
SEN Support should focus on a cycle which requires the school to Assess, Plan, Do and Review, to ensure they understand the child’s needs and the support required to help them make good progress. This is therefore likely to differ according to the individual needs of each child.
Assess
To assess, the class teacher must work with the special educational needs co-ordinator (SENCo) to carry out a clear analysis of the child’s needs, and this should include taking seriously any concerns raised by the parents and should include a description of the pupil’s profile, with the pupil’s own voice and aspirations. This should be reviewed regularly and should include input from professionals working with the child and school.
Plan
If the school decides to provide SEN Support, they must plan the support and interventions the child needs based on the assessment in the form of SMART (specific, measurable, achievable, realistic and time-bound) targets. The school must make sure the parents are fully aware of the planned support and interventions and they have the parents’ consent.
Do and review
The school should then do the planned support and interventions and should also review the effectiveness of them and the impact of these on the child’s progress. The school should also seek the views of the child and his/her parents. Any changes to the plan following the review should then be done in consultation with the pupil and parent.
What should I do if the school cannot meet my child’s needs?
There may be circumstances where SEN support is not provided or does not meet your child’s needs:
What if SEN support is not provided by the school?
As the school is responsible for SEN Support you should contact the school and discuss this with them. You may want to contact the class teacher or the SENCo first, and if you don't receive a satisfactory response, you could consider making a complaint to the school. The school will have a complaints policy, which sets out the process you will need to follow. This should be provided on request.
What if the school’s plan doesn’t include the provision needed?
You could raise your concerns with the school as set out above. If you remain unhappy it is unlikely you will be able to take legal action against the school in relation to the SEN Support, unless you think the school is discriminating against your child. In this case you should seek legal advice.
What if my child is not making progress under SEN Support?
You should consider whether your child’s special educational needs can be met under SEN Support or whether they need an EHCP. An ECHP is a higher level of support than SEN Support for children with special educational needs, determined by a formal assessment (EHC Needs assessment). Not all children will be entitled to an EHCP.
Can SEN Support include provision from professionals outside of the school?
Yes, so long as it is decided that provision from an outside professional is needed as part of the SEN Support. Parents should always be involved in the decision to use external professionals and any agreed support should be provided as soon as possible after confirming it is needed.
When should I request an EHCP?
If you are not happy with the support provided by your school or if your child does not seem to be making progress despite receiving support, you may need to investigate getting an EHCP. Read our article on Education, Health and Care Plans for a detailed explanation and information on how to qualify for one.
Local authority Refusal to Assess for an EHCP
As local authority budgets are squeezed ever tighter, there are more and more cases where schools are telling parents there is no point in applying for an EHC needs assessment, or authorities are refusing a parent’s request to be assessed.
Do not be deterred. It is worth knowing that more than 90 per cent of parents who take a local authority (LA) to tribunal over refusal to assess are partly successful. Most appeals on refusal to carry out an assessment are held on papers alone so you don’t even have to go to hearing. So given the high success rate it is well worth appealing.
However the EHC needs assessment is not usually the first step in providing support for a child with SEND, but should follow previous planning for SEN Support with the family and setting.
Appealing a Refusal to Assess
When local authorities send out the letter refusing an assessment, they should include with it details on how to appeal to the SEND tribunal. It is the parents rather than the school who trigger an appeal, so you will need to take the lead. Hopefully school will support your appeal, but again do not be deterred if they won’t. Privately some despairing SENCos have told us that they have been instructed by their head not to support the parents as that would be going against the local authority.
The documents you can supply in evidence include school reports; professional diagnoses and reports; educational assessments; and SEN support plans. Reports you have commissioned privately are also valid.
What is the local authority looking for?
Your local authority will want to see that despite having taken relevant and purposeful action to identify, assess and meet the needs of the SEN child, the child has not made expected progress. This will involve information on academic attainment and rate of progress, as well as proof of action already being taken by the setting. The local authority will require evidence of the nature and context of the special need as well as information from any clinicians, health and social care professionals. However,
‘Many local authorities have policies and criteria before you can apply for an EHC needs assessment, but these are not legal decisions. The tribunal can only apply the law,’ says Judge Jane McConnell, lead tribunal judge.
Mediation before tribunal
There is now a requirement to consider mediation before launching a tribunal case. You are not obliged to go to mediation, you can simply consider it and then say no thank you. But you must have a mediation certificate to submit with your tribunal paperwork (which can be supplied on request from your mediation advisor).
With thanks to Samantha Hale, a solicitor specialising in education, community care and public law.
With thanks to Samantha Hale, a solicitor specialising in education, community care and public law.