What duties do local authorities have towards children and young adults with special educational needs?

A child or young adult has special educational needs if they have a learning difficulty or disability which requires special educational provision to be made for them. Children/young adults have a learning difficulty if they:-

(a) Have a significantly greater difficulty in learning than the majority of the children of the same age; or

(b) Have a disability which prevents or hinders them from making use of educational facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions; or

(c) They are under compulsory school age and fall within the definition of a) or b) above, or would do so if special educational provision was not made for them.

Children must not be regarded as having a learning difficulty solely because their home language is different from the language in which they are taught.

Local authorities have a legal duty to identify and assess the special educational needs of children and young people for whom they are responsible. Once a local authority becomes aware that the child/young person in their area has or may have special educational needs, the local authority must ensure that those children/young people receive support to help them in “achieving the best possible educational and other outcomes”.

Each local authority is required to publish a Local Offer detailing relevant information about all the services and support it expects to be available for children/young people with special educational needs and/or a disability for whom they are responsible. The Local Offer must set out what the local authority expects in terms of support provided by schools/colleges, educational health and care provision, training provisions, transport arrangements from home to school/college and support for preparing the young person for adulthood and independent living.

If a school (or parents) are concerned that the educational needs of a child are not being met, in spite of the child receiving extra support, the child may be placed on School Action or School Action Plus. School Action is used when there is evidence that the child is not making adequate progress at school and there is a need for action to be taken to meet learning difficulties. This could involve providing the child with additional teaching support, specialist equipment and/or different learning materials. If the child does not make adequate progress through School Action, they may then move on to School Action Plus. This will involve the school obtaining external advice from education support services, the local health authority, social services and/or specialist advisory services. This could include advice from an educational psychologist, occupational therapist and/or speech and language therapist. If the child is receiving support through School Action or School Action Plus their progress should be reviewed at least twice a year and an Individual Education Plan should be written for the child.

A local authority must carry out an Education Health and Care Needs Assessment if a child/young person needs or may need more support than their school can give them. If the child meets the criteria for an Education Health and Care Plan, the local authority has a legal duty to provide the support included in the plan to meet the child’s educational needs. If the local authority unreasonably refuses to carry out an Education Health and Care Needs Assessment and/or fails to deliver the support provided in the plan, they can potentially be challenged by way of judicial review proceedings.

It is important to stress that not all children will require special educational provision to be made for them, even if they have special educational needs. In addition to this, only a small percentage will meet the criteria for an Education Health and Care Plan, as a result of the complexity of their needs. However, when special educational needs cannot be met in a mainstream setting, a specialist provision needs to be considered.

In the Court of Protection department, we support clients who lack capacity to ensure that their educational needs are being met. We also challenge the local authority, where appropriate, if they refuse to carry out relevant statutory assessments and/or fail to provide support that our clients are entitled to.

Nicola Gunn is a partner in the Court of Protection and Family department. If you need any assistance, please contact Nicola on 020 7940 4057 or email Nicola Gunn.