SEN update for schools and colleges

There have been a number of important decisions regarding children with Special Educational Needs "SEN" likely to be of interest to schools and colleges.

Education law expert, James Betts provides a helpful summary.

Cuts to SEN funding 

In KE v Bristol City Council the High Court quashed a local authority decision to set a schools’ budget at a rate which amounted to a reduction of approximately £5 million in the high needs block budget (the amount set aside for special educational needs provision).

The claim was brought by the parents of children with SEN who were concerned the reduction would limit the council’s ability to pay for the support their children needed. They successfully argued that the local authority had failed to properly consult with those that might be impacted upon by the reduction (namely children with special educational needs and their carers). The Court found that  the council had failed to properly consider the duties owed to eliminate discrimination under the Equality Act 2010.

This case highlights that all public bodies (including schools and colleges) must   consult with service uses when making decisions that are may impact on them.

Ceasing to maintain Education, Health and Care Plans

In B&M v Cheshire East Council, the Upper Tribunal provided important guidance on what factors have to be considered when deciding whether to cease to maintain a young person's EHC plan.

The case concerned a local authority's decision to cease to maintain an EHC Plan for a severely disabled young person. The decision was challenged by the young person’s parents but the First Tier Tribunal upheld the council’s decision. The case was then brought to the Upper Tribunal who found in the parents favour on the basis that the First Tier Tribunal had failed to properly consider the matter and in doing so had made errors of law.

The Upper Tribunal confirmed that:

• Achievement of outcomes in an EHC plan does not automatically mean that it is appropriate to cease to maintain an EHC plan and the decision makers must consider whether the outcomes remain appropriate. This will depend on  a number of factors such as the young person’s aspirations, why the outcomes were achieved and whether the person’s SEN has altered.  Before deciding to cease a plan decision makers should think about whether the outcomes in the plan should instead be amended.
• By the same token, a failure to achieve outcomes does not inevitably mean an EHC plan should continue. Consideration must be given as to whether the young person wishes to remain in education or training and, even if they do, the reasons why the outcomes were not achieved, the type of education proposed and the young person’s particular SEN are all factors that may show it is no longer necessary to maintain an EHC plan.
• The test for ceasing to maintain a plan is similar to the test for deciding whether an EHC plan should be prepared and maintained in the first place – i.e. whether it is necessary for SEN provision to be made in accordance with an EHC Plan? If the answer is yes, the EHC plan must continue.
• Local authorities should not make a decision to cease to maintain an EHC plan without up to date information about the young person.  In many cases, this will mean that updated assessments of the young person’s educational needs should be completed prior to any decision being made. In practice this means that such evidence should be collected as part of a formal re-assessment of the EHC plan or in advance of an Annual Review meeting.

Is school transport a SEN provision?

In Birmingham City Council v KF  the Upper Tribunal confirmed that school transport is capable of being special educational provision if it "educates or trains"  the child or young person.    

Those inputting into EHC assessments and Annual Reviews should therefore consider whether transport to and from school is provision that is needed to educate or train the young person. 

Whilst the judgment does not give examples we consider this may be the case if the journey is a learning opportunity of itself (for example if the young person has needs which require them to learn how to access transport or develop their social skills). If it is, local authorities should specify the transport to be provided in Section F of a person’s EHC plan.

What is special educational provision?

As with the Birmingham case referred to above, in East Sussex County Council v JC the Upper Tribunal  was asked to consider whether there is any limit to what is capable of being special educational provision. 

It found that a powered wheel chair was capable of being special educational provision if it "educates or trains" the young person. The judgment explains that this may be the case if, for example, learning to use the wheel chair and developing and applying that learning amounts to education in itself.  This means that relevant equipment (not just wheel chairs), can be classed as special educational provision.

This judgement is important as special educational provision must be set out in Section F of an EHC plan and parents and young people are entitled to appeal to the First Tier Tribunal if they disagree with the plan issued by the local authority. If a local authority fails to list the equipment in Section F, and subsequently does not provide it, the  parent or young person can then challenge this through the Tribunal. This may be a way of securing funding for  particular equipment when no other funding is available.

Child’s wishes when determining school placement 

In St Helens BC v TE and another the Upper Tribunal confirmed a child’s opposition to attending a school is a relevant factor and must be taken into account when assessing the suitability of a school if such opposition arises as an aspect of the child’s special educational needs.

The case concerned a seven year old boy with autistic spectrum disorder. The First Tier Tribunal had ordered that the independent placement sought by parents should be named in the boy’s EHC plan. In making this decision the First Tier Tribunal concluded the school proposed by the local authority would not be suitable because the child had formed  "an entrenched and currently intractable opposition to attending [the local authority school] or any mainstream provision". 

The LA sought to challenge this decision as they argued the boy’s views should not override what would otherwise be a suitable placement. The Upper Tribunal rejected this argument and confirmed that the opposition stemmed from the boy’s special educational needs and was therefore a relevant factor when considering the overall suitability of the placement.

Need more information?

Please contact James Betts;  james.betts@irwinmitchell.com  or +44 (0)370 1500 100.