7   CHILDREN WITH SPECIAL EDUCATIONAL NEEDS AND OTHER VULNERABLE CHILDREN

CHAPTER SUMMARY

           This chapter deals with the responsibilities of mainstream schools for providing education and learning activities for pupils with special educational needs (SEN). Governing bodies have important responsibilities towards children with special educational needs, whether or not they have a statement. These responsibilities are summarised in this chapter.

OVERVIEW OF LEGISLATION ON SPECIAL EDUCATIONAL NEEDS (SEN)

Special education has never been a matter just for special schools. The needs of the majority of pupils with special educational needs will be met in mainstream schools. Many of the provisions in present legislation can be traced back to the 1981 Education Act, and to a Government Committee of Enquiry under Baroness Warnock, which reported in 1978. Essentially this has been that children with special educational needs should normally be educated in mainstream schools unless their parents disagree. The Education Act 1996 sets the framework for this.

The 1993 Education Act, which was replaced by the 1996 Act, enabled the Secretary of State to issue a Code of Practice on identifying and assessing SEN. The Code (current version issued in 2001) sets out detailed guidance on all aspects of providing for special educational needs in mainstream and special schools. All schools, Local Authorities (LAs) and other providers must take account of the Code. In addition, the Special Educational Needs and Disability Act 2001 strengthened the right to a mainstream education for pupils with special educational needs and introduced statutory support for parents of children with SEN and informal dispute arrangements.

Schools and their governing bodies have an important role in supporting LAs to discharge their duty under Section 22 of the Children Act 1989 (inserted by Section 52 of the Children Act 2004) to promote a looked after child's educational achievement.

DEFINITIONS

1.         Legally, a child is defined as having special educational needs (SEN) if he or she has a learning difficulty which calls for special educational provision to be made for him or her.  A learning difficulty means that the child has significantly greater difficulty in learning than most children of the same age, or it means a child has a disability which prevents or hinders him or her from making use of educational facilities of a kind generally provided for children of the same age in schools within the area of the LA. The children who need special education are not only those with obvious learning difficulties, such as those who are physically disabled, deaf or blind. They include those whose learning difficulties are less apparent, such as slow learners and emotionally vulnerable children. Many school children may need special educational help at some stage in their school careers.

2.            Special educational provision can be made in many different ways. It can mean extra help for a child being taught in an ordinary class or it can involve teaching the child in a specially resourced unit attached to a mainstream school, or in a special school. In a few cases the needs of a child may be very complex or severe and require the LA to make a statutory assessment based on specialist advice.

ASSESSMENTS

3.         The LA retains overall responsibility for SEN provision and is responsible for formally assessing children in their area with special educational needs who may need a statement of SEN. A child can be referred to the LA for assessment by the child’s parents. Schools may also ask the LA to assess a child whom they think may need a statutory assessment. The LA has six weeks from referral to consider whether a statutory assessment is necessary. At the end of this period it must inform the parents of its decision.

4.         Guidance for carrying out a statutory assessment is given in chapter 7 of the SEN Code of Practice. Parents must be closely involved, and their views carefully considered at all stages of the assessment process. Guidance on working with parents is set out in chapter 2 of the SEN Code. The LA must also seek advice from educational, medical, psychological and social services, and from any other source it considers appropriate. The views of the child should also be sought. The LA must complete the assessment within ten weeks of the date on which it agreed to assess the child and must then decide whether to make a statement of SEN for the child.

STATEMENTS OF SEN

5.            The statement identifies all the child’s special educational needs and the arrangements needed to meet those needs, either in a mainstream school, or in a community special or foundation special school. The LA must first, within two weeks of deciding to make a statement, send a proposed statement to parents. The statement is in six parts:

6.         All advice received and taken into consideration during the assessment, including parental, educational, medical, psychological and that supplied by social services, must be attached to the proposed statement.

7.         The proposed statement must be completed, except for Part 4, which should be left blank. Parents can then say which school in the maintained sector they prefer their child to go to. LAs must meet the parents’ preference unless:

·               the school is unsuitable for the child’s age, ability, aptitude or special educational needs;

·               the placement would affect the efficient education of other children;

·           the placement would affect the efficient use of resources.

8.            The governing body must admit a pupil whose statement names their school. Before naming a school in a statement the LA must consult the governing body of that school.

9.         Parents can make representations for a placement outside the maintained sector. The LA must consider parents’ representations before making a decision on whether to name the school on a pupil’s statement.

10.       Within eight weeks of issuing the proposed statement, the LA must serve the parents with a copy of the final statement. The process of making an assessment and statement should take no longer than six months.

11.       Each statement must be reviewed at least once a year. Chapter 9 of the Code of Practice gives detailed guidance on carrying out a review. The annual review in Year 9 will involve other agencies such as the Connexions Service and the social services that are likely to play a major role when the child leaves school. A Transition Plan will be prepared, drawing together information from a range of individuals within and beyond the school, in order to plan coherently for the young person’s transition to adult life.

12.       As part of the review process, the LA must keep reviewing what they provide for teaching children with special educational needs. LAs have a general duty to educate a child in a mainstream school, as long as this is consistent with the parents’ wishes and the child receives the appropriate special educational provision. The child’s inclusion should also be compatible with the efficient education of other children.

APPEALS

13.       The Special Educational Needs and Disability Tribunal (SENDIST) considers parents’ appeals against the decisions of LAs about children’s special educational needs if parents cannot reach agreement with the LA. It also hears claims of disability discrimination in education. SENDIST is an independent tribunal, part of the Tribunals Service.

SEN appeals

14.       SENDIST can hear parents’ appeals against LA decisions about children’s special educational needs. Parents can appeal to the tribunal if the LA:

·              refuses to carry out a statutory assessment of their child’s special educational needs;

·               refuses, having carried out an assessment, to issue a statement of their child’s special educational needs.

            If the LA has made a statement, or changed a previous statement, parents can appeal against:

·               the parts which describe their child’s special educational needs (Part 2) and set out the special educational help (Part 3) the LA will provide;

·               the school named in Part 4 of the statement;

·               the LA not naming a school in Part 4.

            Parents can also appeal if the LA:

·              refuses to change the school named in their child’s statement if the statement is at least a year old, (but parents can only ask for an LA maintained school and cannot ask for a change to the type of school named)

·               refuses to reassess their child’s special educational needs if the LA has not made a new assessment for at least six months;

·               decides not to maintain a statement for their child;

·               decides not to change their child’s statement after carrying out a reassessment.

15.       SENDIST’S booklet Special Educational Needs: How to appeal provides full information on when and how parents can appeal, about decisions that can be appealed and the whole appeals process. A copy can be obtained by telephoning 0870 241 25555.

Disability discrimination in schools

16.       SENDIST can also hear parents’ claims about disability discrimination in schools. For all types of schools the Tribunal handles discrimination claims about fixed­term (temporary) exclusions, and education and services linked to education in all schools. The Tribunal also considers disability discrimination claims regarding admissions and permanent exclusions in the independent and non­maintained sectors.

17.       SENDIST produces a further booklet, Disability Discrimination in Schools: How to make a claim. This provides information about when and how parents can make a claim. A copy can be obtained by telephoning 0870 606 5750. Information about SENDIST is also available on its website, www.sendist.gov.uk

RESPONSIBILITIES OF THE GOVERNING BODY

18.       The governing body should, with the headteacher, decide the school’s general policy and approach to meeting children’s special educational needs, for those with statements and those without. It must set up appropriate staffing and funding arrangements and oversee the school’s work. The general duties of governing bodies and the “responsible person” are set out in full in paragraphs 1:16 to 1:22 of the SEN Code of Practice.

19.       For mainstream (non­special) schools, the governing body may also appoint a committee to monitor the school’s work for children with special educational needs.

20.       In summary, governing bodies of mainstream (non­special) schools have legal duties under the 1996 Act to:

·               use best endeavours in exercising their functions that the necessary special arrangements are made for any pupil who has special educational needs;

·               ensure that parents are notified by the school when SEN provision is being made for their child;

·               make sure that the “responsible person” makes all staff who are likely to teach the pupil aware of those needs;

·               make sure that the teachers are aware of the importance of identifying pupils who have special educational needs and of providing appropriate teaching;

·               consult the LA and the governing bodies of other schools when it seems necessary to co­ordinate special educational teaching in the area;

·               make arrangements to allow pupils with special educational needs to join in the everyday activities of the school as far as is practical;

·               report each year to parents on their policy for pupils with special educational needs;

·               take account of the SEN Code of Practice when carrying out their duties towards all pupils with special educational needs.

N.B. The “responsible person” is generally the headteacher, but may be the chair of the governing body or a governor appointed by the governing body to take that responsibility. If the “responsible person” is the headteacher, it may be helpful for one other governor to have an interest in SEN.

21.       In summary, governing bodies of special schools have legal duties under the 1996 Act to:

·                use best endeavours in exercising their functions that the necessary special arrangements are made for any pupil who has special educational needs;

·               make sure that the “responsible person” tells all staff likely to teach the pupil in question about his or her special needs (the person can be the headteacher, but may be the chair of the governing body or a governor appointed by the governing body with that responsibility);

·               report each year to parents on their policy for pupils with special educational needs;

·               take account of the Code of Practice when carrying out their duties towards all pupils with special educational needs.

22.       Under the Education (Special Educational Needs) (Information) (England) Regulations 1999 governing bodies of all schools must publish information about their SEN policies. These policies must be made freely available to parents.

 ADMISSION OF PUPILS WITH SPECIAL EDUCATIONAL NEEDS:

DUTIES OF ADMISSION AUTHORITIES (INCLUDING GOVERNING BODIES)

23.       The SEN Code of Practice makes clear that all schools should admit pupils with already identified special educational needs, as well as identifying and providing for pupils not previously identified as having special educational needs. Admission authorities may not refuse to admit a child because they feel unable to cater for their SEN pupils. Pupils with special educational needs, but without statements, must be treated as fairly as all other applicants for admission. Admission authorities must consider applications from parents of children with special educational needs, but no statement, on the basis of the school’s published admissions criteria. Such children should be considered as part of the normal admissions procedures. Admission authorities cannot refuse to admit children on the grounds that they do not have a statement or are currently being assessed.

Admission of SEN pupils with statements to mainstream schools

24.       Schedule 27 of the Education Act 1996 determines whether a parent’s preference for a particular maintained school is met. Parents may express a preference for a particular maintained school they may wish their child to attend. LAs must comply with a parental preference unless the school is unsuitable to the child’s age, ability, aptitude or special educational needs, or the placement would be incompatible with the efficient education of the other children with whom the child would be educated, or with the efficient use of resources. Once a maintained school is named in a child’s statement, the governing body must, under Section 324(5) (b) of the Education Act 1996, admit the child.

25.       Parents have the right of appeal to SENDIST if they disagree with the school named in Part 4 of the statement, or with the parts of the statement describing the child’s special educational needs (Part 2) and the special educational help the LA thinks the child should get (Part 3). Governing bodies do not have a right of appeal to SENDIST. Parents can also use the informal disagreement resolution arrangements to resolve issues about the ways LAs and maintained schools carry out their responsibilities towards their child.

26.       If no parental preference for a particular maintained school has been expressed, Section 316 of the Education Act 1996 (as amended by Section 1 of the SEN and Disability Act 2001) is relevant to the selection of a school. There is a clear expectation under that section that pupils with statements will be included in mainstream schools. LAs have a general duty to ensure that a child is educated in a mainstream school unless that is incompatible with the efficient education of other children or with parental preference. A parent’s wish to have their child with a statement educated in a mainstream school should only be refused in the small minority of cases where the child’s inclusion would be incompatible with the efficient education of other children.

27.       If an LA considers that the education of a particular child in its mainstream schools generally would be incompatible with the efficient education of others, it must consider whether there are any reasonable steps it or another LA could take to prevent that incompatibility. If there are such steps, it may not rely on this incompatibility to rule out a placement in a mainstream school. In relation to a particular maintained school, it must consider the reasonable steps that it or another LA could take to prevent the incompatibility. If there are such steps, it may not rely on this incompatibility to rule out a placement in that school. LAs must consult the governing body of a mainstream school before naming it in Part 4 of a statement and send them a copy of the statement. LAs and governing bodies should respond to consultation in good time, normally within 15 working days. The LA that maintains the statement should consider carefully any representations it receives from governing bodies or other LAs, but the final decision rests with the LA.

Further information on admissions is given in the SEN Code of Practice, paragraphs 1:33 to 1:36, and in chapter 12 of this Guide (Admissions).

Admissions to special schools

28.       Most admissions to special schools not established in a hospital are determined by statements of SEN and will reflect parental preference. Once a maintained special school is named in a statement, governors are under a duty to admit the child. Regulation 12A of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 (as inserted by the Education (Special Educational Needs) (England) (Consolidation) (Amendment) Regulations 2006) specifies the circumstances when a child without a statement of SEN may be admitted to a special school – namely for the purposes of assessment, or following a change in circumstances.

29.       Before naming a special school in a statement, LAs must consult the school’s governing body (and the home LA, where the school is maintained by another LA). LAs and governing bodies should respond to consultation in good time, normally within 15 working days. The LA that maintains the statement should consider carefully any representations it receives from governing bodies or other LAs. When finalising statements, LAs should consider whether or not the admission of the child would be in keeping with the school’s arrangements, i.e. the number, age, sex and special educational needs of day and boarding pupils for whom the school is organised to make provision.

30.       Pupils may only be admitted to a special school established in a hospital where there is a need for hospital treatment.

Special School Organisation

31.       The number of pupils for which a school is organised to make provision can be increased by the lesser of 10 per cent or the relevant number of pupils (5 where the school only makes boarding provision and 20 in any other case), without the need for publication of statutory proposals (see chapter 18 of this Guide on Organisational Changes to the School). It is not intended that LAs should routinely name schools that are already admitting pupils up to their organised number in statements. The provision is intended to offer a degree of flexibility that will allow the occasional additional pupil to be placed at a special school when it is decided that this is the most appropriate way forward.

TEACHERS IN MAINSTREAM SCHOOLS WITH RESPONSIBILITY FOR SEN

32.       Section 317 of the Education Act 1996 (as amended by Section 173 of the Education and Inspections Act 2006) says that the governing body of a community, foundation or voluntary school or a maintained nursery school shall designate a member of staff at the school – to be known as the special educational needs co-ordinator (SENCO) – as having responsibility for co-ordinating the provision for pupils with special educational needs. Section 317, as amended, allows for regulations to be made regarding qualifications and other functions relating to SENCOs. The SEN Code of Practice says the SENCO is responsible for;

·              the day-to-day running of the school’s SEN policy;

·              working with and advising teachers;

·              co­ordinating the teaching provided for children with special educational needs and overseeing the records on all pupils with special educational needs;

·               keeping in touch with parents of children with special educational needs;

·               contributing to the in-service training of staff;

·               working with external agencies including the educational psychology service and other support agencies, medical and social services and voluntary bodies.

33.       In a small school, one person acts as the SENCO and is possibly the headteacher or deputy headteacher. In larger schools, in addition to the SENCO there may be a wider learning support team. Governing bodies and headteachers must think carefully about the SENCO’s timetable in the light of the Code of Practice and the resources available to the school. The Training and Development Agency (TDA) has published national standards for SENCOs. These set out the knowledge, skills and understanding that SENCOs should have to carry out the role effectively.

34.       All initial teacher training courses cover meeting the needs of children with special educational needs and disabilities. The TDA has published national standards for new teachers that expect all newly qualified teachers (NQTs) to be familiar with the Code of Practice, to be able to identify pupils who have special educational needs and to know where to get help to give these pupils the support they need. In-service training is available covering many aspects of special education and governing bodies may wish to encourage teachers to take such training.

NATIONAL CURRICULUM

35.       The national curriculum applies to pupils with special educational needs, but may be changed or not applied in specific cases. This is explained in chapter 6 of this Guide (The Curriculum). All teachers must, as part of the General Teaching Requirements of the national curriculum, have due regard to a set of principles (the Inclusion Statement) which requires them to:

·             set suitable learning challenges for all pupils

·             respond to pupils’ diverse needs

·          overcome potential barriers to learning and assessment for individuals and groups of pupils.

FINANCE

36.       Pupils with special educational needs may require extra help. For pupils attending mainstream schools who require extra help, but do not have a statement, costs are normally met from the schools’ delegated budgets. The LA should take account, in setting school budgets, of the fact that some schools will have more pupils with special educational needs than other schools. The LA should indicate what part of the school’s budget is assumed to be for SEN, although the governing body may choose to spend more or less than this amount on meeting special needs. The governing body should be clear about the LA’s policy on providing any extra funding for the extra teaching and support of pupils with statements as well as pupils who do not have statements, but who need support from outside the school.

37.       In November 2001, the Department published guidance called The Distribution of Resources to Support Inclusion, covering approaches to the delegation and distribution of resources, or meeting the needs of pupils with special educational needs and those with other additional needs in mainstream schools.

38.       LAs are required under the Special Educational Needs (Provision of Information by Local Education Authorities) (England) Regulations 2001 to publish an explanation of their provision for children with special educational needs (but without statements). The explanation should state what proportion of provision the LA expects to be met from maintained schools’ budget shares and what proportion it expects to be met from funds that it holds centrally.

EDUCATION OF LOOKED-AFTER CHILDREN (CHILDREN IN CARE)

School admissions

39.         Under Section 106 of the Education Act 2005 the government has introduced regulations (the Education (Admission of Looked After Children) (England) Regulations 2006) which require admission authorities, with some limited exceptions, to give priority to looked-after children over other children in their oversubscription criteria. The practical effect of this is that in a school’s published admission arrangements the first and highest oversubscription criterion must be looked-after children.

40.          Because looked-after children often move outside the normal admission round, Section 50 of the Education and Inspection Act 2006 amends the School Standards and Framework Act 1998 to give the LA looking after them the right to direct the admission authority of any maintained school to give them a place, even where the school is full, or it is in another LA area.

Looked-after Children Framework

Promoting the educational achievement of looked-after children

41.         Section 52 of the Children Act 2004 places a duty on LAs to promote the educational achievements of children looked after by them, wherever they are placed. This means they must give particular attention to the educational implications of any decision about the welfare of those children.

42.          Statutory Guidance on the Duty of Local Authorities to Promote the Educational Achievement of Looked-After Children describes the essential actions LAs are expected to take in order to comply with their duty. The purpose of the duty and accompanying statutory guidance is to tackle the serious underachievement of looked-after children by bringing their attainment closer to their peers.

43.         The government expects schools to take a proactive approach to co­operating with and supporting LAs in discharging the duty, so that looked-after children receive the support they need to achieve and succeed. Schools and governors should ensure that school policy and procedure are consistent with measures set out in the statutory guidance on the duty. DfES booklet Supporting Looked After Learners provides practical guidance to governing bodies on the policies and procedures that will help their looked-after children achieve their potential. (A summary of the looked-after children framework is given prior to paragraph 41.)

44.          Many schools have appointed a designated teacher for looked-after children. The designated teacher is responsible for raising the attainment of looked-after children by leading the work of colleagues to ensure that provision is in place to aid continual progress. It is therefore important that the LA ensures that designated teachers have an up-to-date copy of the looked-after child’s Personal Education Plan (PEP). The PEP forms part of his or her education record under the Education (Pupil Information) (England) Regulations 2005. 

45.         Subject to Parliamentary approval, the forthcoming Children and Young Persons Bill will make it a statutory requirement for all maintained schools to appoint a designated person for looked-after children. Given the central importance of the quality of teaching and learning provided to all children in care and its impact on their achievement, the Government intends to specify that this role should be carried out by a teacher.

SICK CHILDREN

46.          LAs have a duty to provide suitable education for children of compulsory school age who cannot attend school due to illness or injury. This education might be provided in a number of ways, for example in hospital schools, in pupil referral units, at home, or through a combination of these. Mainstream schools have a vital part to play in supporting the education of sick children on their roll.

47.          In November 2001 the Department for Education and Skills (DfES), jointly with the Department of Health, published statutory guidance called Access to Education for Children and Young People with Medical Needs, which sets out national minimum standards of education for children who cannot attend school because of illness or injury. A four­page summary is also available. The guidance states that all mainstream schools should have a written policy and procedures for dealing with the education of children with medical needs.

48.          Governors need to ensure that such a policy is in place and that there is close liaison between teachers and the LA/hospital and home tuition service, so that programmes of work are available to pupils, social contacts are maintained and the school is able to assist successful reintegration.

49.          The Department has also published the research report Access to Education for Children and Young People with Medical Needs – A Map of Best Practice, which includes tools to help mainstream teachers evaluate their practice in this area. These documents and further information are available at www.dfes.gov.uk/sickchildren

MENTAL HEALTH IN SCHOOL SETTINGS

50.         There is increasing evidence that schools can promote mental health for all children and intervene effectively with those children experiencing problems. In June 2001, the Department issued the guidance Promoting Children’s Mental Health Within Early Years and School Settings which is designed to help teachers and others working alongside mental health professionals to promote children’s mental health and to intervene effectively where necessary. Governors should be aware of and promote this guidance, which also includes case studies. The guidance and a summary are available on the children and young people’s mental health pages on the TeacherNet website.

DISABILITY DISCRIMINATION

51.         The definition of disability used in the Disability Discrimination Act 1995 is wide and could include a significant proportion of, although not all, children with special educational needs (see chapter 17, Equal Opportunities and School Governors).

52.         The Special Educational Needs and Disability Act 2001 amended the Disability Discrimination Act 1995 to include education in schools. The new duties on LAs and schools came into force on 1 September 2002. The amendments placed a duty on schools not to discriminate against disabled pupils or prospective pupils on the grounds of disability. They also placed a duty on LAs and schools to plan to increase access to education for disabled pupils over time (see chapter 17, Equal Opportunities and School Governors).

53.         The Disability Rights Commission, now part of the Equality and Human Rights Commission (EHRC), produced the guidance Code of Practice for Schools, explaining their duties under Part 4 of the Disability Discrimination Act 1995. Copies may be obtained from the EHRC on 08457 622 633 or via the website at www.equalityhumanrights.com

THE LAW

N.B. As legislation is often amended and Regulations introduced, the references made in this Guide may be to legislation that has been superseded. For an up-to-date list of legislation applying to schools, please refer to the GovernorNet website, www.governornet.co.uk

Education Act 1996: Part 4

Disability Discrimination Act1995: Part 4

Special Educational Needs and Disability Act 2001

Education (Special Educational Needs) (England) (Consolidation) Regulations 2001: SI 2001/3455

Education (Special Educational Needs) (England) (Consolidation) (Amendment) Regulations 2006: SI 2006/3346

Education (Special Educational Needs) (Information) (England) Regulations 1999: SI 1999/2506.

Special Educational Needs (Provision of Information by Local Education Authorities) (England) Regulations 2001: SI 2001/2218

The Education (Pupil Information) (England) Regulations 2005: SI 2005/1437

            GUIDANCE

Special Educational Needs Code of Practice (DfES 2001, Ref: DfES/0581/2001) SEN Toolkit (DfES, 2001, Ref: DfES/0558/2001)

                        Access to Education for Children and Young People with Medical Needs (DfES 2001, Ref: 0732/2001). The document and further information is available at www.dfes.gov.uk/sickchildren

Promoting Children’s Mental Health within Early Years and School Settings (DfES 2001, Ref: 0112/2001). This and other information on children’s mental health is available on the TeacherNet website

Special Educational Needs: A Guide for Parents and Carers, (DfES 2001, Ref: DfES/0800/2001)

Other useful SEN information can be found on the special educational needs and disability webpages on TeacherNet

Special Educational Needs: How to Appeal (Ref: TRI 022)

Disability Discrimination in Schools: How to make a claim (Ref: HTC 001)

Answering a claim of disability discrimination: a guide for responsible bodies (Ref: DIS 2). This and further information can be found on the SENDIST website at www.sendist.gov.uk

Statutory Guidance on the Duty on Local Authorities to Promote the Educational Achievement of Looked After Children under Section 52 of the Children Act 2004 (Ref 2083-2005DOC-EN). Copies can be downloaded from the Education Protects website at www.dfes.gov.uk/educationprotects

Supporting Looked After Learners: A practical guide for school governors (DfES 2005, Ref:1929-2005DOC-EN. Copies can be downloaded from the Education Protects website at www.dfes.gov.uk/educationprotects

Accessible Schools: Planning to increase access to schools for disabled pupils (DfES 2002, Ref: LEA/0168/2002)

The Distribution of Resources to Support Inclusion: Ref: LEA/080/2001

Copies of guidance listed above (unless otherwise indicated) can be obtained from DCSF Publications (tel: 0845 602 2260 or email: dcsf@prolog.uk.com). Please quote the document reference.