This House of Commons Library briefing sets out the system of support for children and young people in England aged 0-25 with special educational needs (SEN). The briefing provides an overview of the new system introduced in 2014, the transitional arrangements, and how the new system differs from that which preceded it. It also includes a brief history of the movement towards reform that preceded the 2014 changes, and information on the impact of the new system available to date.
This information should not be relied upon as legal or professional advice. Read the disclaimer.
This article is mainly concerned with children and young people who have complex special educational needs and who have (or who are trying to obtain) an Education, Health and Care (EHC) plan.
For more general information see Special Educational Needs: support in England
Where can parents, carers and young people get help if they are experiencing problems?
There are a number of specialist charities that offer online or telephone help on SEND issues:
- Independent Parental Special Education Advice (IPSEA)
- ACE Education
- Coram Children’s Legal Centre
Every area also has an independent advice and support service (IASS) that is independent from the local authority:
- Link to Council for Disabled Children/ National Children’s Bureau search tool to find local IASS services.
Anyone who is considering making a formal appeal to the Tribunal (more on which below) should get specialist individual advice.
What can parents or carers do if they feel their child is not getting the special educational provision they need?
There is statutory guidance on resolving disagreements on SEND provision and the contents of EHC plans in part 11 of the Department for Education’s SEND Code of Practice: 0-25 years.
There are several pathways for parents and carers who haven’t been able to resolve a SEND issue by talking to the school or college:
- Asking the local authority to carry out a statutory EHC needs assessment, re-assessment or early review
- Complaining to the local authority
- Bringing an appeal to the First Tier Tribunal on Special Educational Needs and Disability (sometimes known as SENDisT)
- Complaining to the Secretary of State for Education
- Complaining to Ofsted (if there is a wider problem with SEN provision at a school or other provider)
- Complaining to the Local Government Ombdusman (LGO)
- Judicial Review
The most appropriate route(s) will depend on the details of the case; there’s more in the section below about what the Tribunal can consider.
For some types of appeal to the Tribunal, parents, carers or young people will be required to show proof of having contacted a mediation adviser before appealing.
The charity, IPSEA, has a range of resources and template letters for addressing problems with SEND provision.
What can be appealed to the Tribunal?
Only certain SEND decisions can be appealed to the Tribunal. These are:
- Refusal to carry out an EHC needs assessment or refusal to carry out a reassessment
- Refusal to issue an EHC plan following an assessment;
- Refusal to amend an EHC plan after a review or reassessment;
- A local authority deciding to cease to maintain an EHC plan.
Appeals can also be made about the contents of an EHC plan, specifically:
- The child or young person’s special educational needs and how they are described in the plan;
- The special educational provision (but not the health or social care provision) set out in the plan to meet the child’s needs;
- The school or setting that the local authority believes the child should attend (the ‘named’ school or placement school).
- Failure to name any school or setting in the EHC plan.
Who can appeal to the Tribunal?
- For children of compulsory school age, the parent or carer will have the right of appeal.
- Young people who are over compulsory school age may bring their own appeal, provided they have mental capacity.
What are the timescales for Tribunal appeals?
Tribunal appeals must usually be registered within 2 months of the local authority sending the relevant decision notice, or within one month of the date of a certificate which has been issued following mediation or the parent or young person being given mediation information, whichever is the later. The Tribunal can exceptionally extend this deadline, if there were compelling reasons why the case couldn’t be brought in time.
The SEN appeal process is time-limited to 12 weeks from the point of lodging the appeal, in most cases.
What powers does the Tribunal have?
Decisions of the First Tier Tribunal are binding, although the Upper Tribunal can consider appeals on points of law.
The First Tier Tribunal has specific powers under the Children and Families Act 2014, as amended. It may:
- Dismiss the appeal.
- Order the local authority to carry out an assessment.
- Order the local authority to make and maintain an EHC plan.
- Order the local authority to maintain a plan with amendments.
- Order the local authority to reconsider or correct a weakness in the plan.
Can schools exclude children because they can’t meet their special education needs?
Statutory guidance for schools and local authorities on school exclusion can be found in the following document:
- DfE, School exclusion, September 2017.
Children and young people can only be excluded from school for disciplinary reasons. DfE statutory guidance is that schools should avoid, as far as is possible, permanently excluding children with EHC plans.
The statutory guidance further says:
It is unlawful to exclude or to increase the severity of an exclusion for a non-disciplinary reason. For example, it would be unlawful to exclude a pupil simply because they have additional needs or a disability that the school feels it is unable to meet, or for a reason such as: academic attainment / ability […] (p9)
- DfE/ DoH, statutory SEND Code of Practice:0-25 years
- House of Commons Library, Special Educational Needs: support in England, SN 07020
The Commons Library does not intend the information in this article to address the specific circumstances of any particular individual. We have published it to support the work of MPs. You should not rely upon it as legal or professional advice, or as a substitute for it. We do not accept any liability whatsoever for any errors, omissions or misstatements contained herein. You should consult a suitably qualified professional if you require specific advice or information. Read our briefing for information about sources of legal advice and help.
This note outlines arrangements for students with learning difficulties and disabilities in post -16 education in England. It gives an overview of policy in this area and current funding arrangements. It also discusses the proposals in the 2011 SEN and Disability Green Paper, Support and aspiration: A new approach to special educational needs and disability.
What type of support should be available for children who might have special educational needs (SEN)?