Over the past couple of years, when speaking to parents of children with autism, specialist charities and attendees at advice centres, the following issues have repeatedly arisen:
- Is autism a special educational need?
- Is my child getting the right support?
- Does my child need a Statutory Assessment?
- Is my child’s Statement/EHC Plan appropriate?
Below, I have outlined these issues and provided general advice on how to deal with them. Where possible, I have also discussed the impact of the new Children and Families Act 2014 (which will come into force from 1st September 2014), the draft regulations and the Special Educational Needs Code of Practice (which should be in place by 1st September 2014), on these issues.
In short, the main changes relevant to this article include: the Statement of Special Educational Needs being replaced by the Education, Health and Care Plan (‘EHC Plan’), which will last until a pupil is 25 (although will not cover university or full-time apprenticeships); Learning Difficulty Assessments being abolished and a new option being made available for parents to request a Personal Budget (although note this is not considered in this article).
Additionally, local authorities are required to set out the special educational provision provided in the local area in a document called the Local Offer; schools are required to provide a SEN policy in which it is outlined how they identify, assess, address and facilitate the accommodation of special educational needs.
The right of appeal to the SEND Tribunal is only referenced in this article and is not covered in any detail. Parents should be aware that, under the Children and Families Act 2014 and the draft regulations, their child will also have a right to appeal to the SEND Tribunal. A duty will now be placed on parents to consider mediation as part of an appeal to the Special Needs Tribunal. However, only the education element of EHC Plans can be appealed to the Special Needs Tribunal.
Is autism a special educational need?
The definition of a special educational need can currently be found under Section 312 of the Education Act 1996 (replaced by Sections 20 and 21 of the Children and Families Act 2014 (the definition remains largely the same)); in which ‘special educational needs’ are defined as a “learning difficulty” which requires “special educational provision”.
A child has a “learning difficulty” if he/she:
a) Has a significantly greater difficulty in learning than the majority of children of the same age; or
b) Has a disability which prevents or hinders him/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 local authority; or
c) Is under compulsory school age and falls within (a) or (b), or would do so if special educational provision were not made for them.
Definition of special educational provision
Special educational provision means:
a) For a child aged two or over: educational provision which is additional to, or otherwise different from, the educational provision made generally for children of their age in schools maintained by the local authority, other than special schools, in the area.
b) For children under two years old: educational provision of any kind.
The definition of ‘special educational needs’ is very wide and covers most learning difficulties/disabilities. Autism has many different definitions; the current definition outlined on the National Autistic Society’s website being:
“Autism is a lifelong developmental disability that affects how a person communicates with, and relates to, other people. It also affects how they make sense of the world around them.
It is a spectrum condition, which means that, while all people with autism share certain difficulties, their condition will affect them in different ways. Some people with autism are able to live relatively independent lives but others may have accompanying learning disabilities and need a lifetime of specialist support. People with autism may also experience over- or under-sensitivity to sounds, touch, tastes, smells, light or colours.
Asperger syndrome is a form of autism. People with Asperger syndrome are often of average or above average intelligence. They have fewer problems with speech but may still have difficulties with understanding and processing language.”
From this definition, autism is clearly established as a learning difficulty requiring special education provision, and therefore falls in line with the above mentioned definition of ‘special educational needs’. From experience, I have never come across a case where a school or a local authority has challenged autism as a special educational need. In fact, in most cases I have come across, autism has been one of a number of difficulties impacting on learning (such as reading and writing difficulties, issues with speech, language and motor skills and sensory needs etc). The main issue which arises is not whether autism is a special educational need but whether the support an autistic child is receiving is appropriate.
Is my child getting the right support?
It is your local authority’s duty to identify pupils with special educational needs and provide them with the support necessary to meet their learning needs. In practice, it is usually NHS specialists or schools who will identify pupils with special educational needs and bring them to the attention of a local authority. Sometimes, this communication does not always happen or is ignored by the local authority in question. As will be explained below, where this happens, parents must take an active role in bringing their child to the attention of the local authority and ensuring appropriate provision is provided.
Autism is a vast spectrum; where a child sits on the spectrum will often dictate how early they are identified as having autism and how quickly specialist provision is provided. In some cases, it will be clear from birth or early development that a child has a severe difficulties including autism—which will mean that they will require substantial support in their development and education.
A child with severe difficulties/disabilities will usually be identified by NHS professionals working with them, who should refer their cases on to the relevant local authority’s education department. The nature and severalty of the child’s learning difficulties should mean that their local authority should fast track their case and undertake a Statutory Assessment view a view to issuing a Statement of Special Educational Needs (to be replaced with an Education Health and Care Plan (EHC Plan) from 1st September 2014).
In most other cases where, the current SEN Code of Practice 2001 (which, as mentioned, is to be replaced with a new Code in September 2014) provides guidance on how schools should identify and meet learning needs, including autism. The fundamental ethos of the current Code is that most children identified as having special educational needs can have their learning difficulties met within the resources available in local authority-maintained mainstream schools or academies.
The code outlines a gradual approach to identifying and addressing a child’s special educational needs in a mainstream setting; before deciding that a child’s needs are too great to meet without a Statement of Special Educational Needs or within a mainstream setting.
The starting point is in-class support; where a child has failed to make progress their case should be referred to the school in question’s Special Educational Needs Co-ordinator (SENCo) who will usually place the child on a ‘School Action’ programme. This usually involves providing extra support (like extra tuition) and guidance. Strategies used to help a child make adequate academic progress should be recorded in an Individual Education Plan (IEP). If a child has still failed to make adequate academic progress on a School Action programme, they should be placed on School Action Plus.
School Action Plus normally involves the school’s SENCo contacting their relevant local authority and obtaining external support. Help from external agencies, usually through a local authority, comes in many different forms. With children with autism or children suspected of being autistic, it often comes in the form of assessments from local authority educational psychologists or advice from specialist autism advisory teachers. There may also be some involvement from NHS speech and language and occupational therapy services as well as Child and Adolescent Mental Health Services (CAMHS). These services will advise on new IEPs, new targets and the use of specialist strategies or materials; where appropriate they will also advise on further assessment.
If a child is still failing to make adequate progress on School Action Plus then a Statutory Assessment, to determine the child’s special educational needs and the provision they require (whether within the school’s resources or within a Statement of Special Educational needs), should then be considered by the school and a request should be made.
The new Code of Practice has removed School Action, School Action Plus and the need for IEPs. It will now be up to schools to determine how they identify, assess and monitor special educational needs; although the Code does provide that they should the same ‘gradual approach’ ethos as before. Schools and academies will, from September, have a legal duty to publish SEN report information on their websites and in a hard-copy form. This report must be reviewed annually. It should outline how a school will identify, assess, meet and review special educational needs and should identify what facilities are available for such pupils to assist their access to education.
Where a school cannot meet need, it should refer to the relevant local authority’s Local Offer for external support and outside advice. If a child still fails to make adequate progress and the support they require is over and above the level of provision reasonably provided by a mainstream school, a request for a Statutory Assessment should be made with a view to obtaining an EHC Plan.
Parents should treat SEN reports and Local Offers with caution; schools and local authorities have always had similar documents in the past and they often do not comply with the law. They should be used by parents as an indication, rather than an authority, of whether a school is meeting a child’s special education needs. If you are unsure then you should seek external advice.
The main underlying issue under either Code will remain the same; with the support in place, is the child making ‘adequate progress’? Is provided support suitable? Is it necessary for the child’s special educational needs and the provision required to meet those needs to be specifically identified in a Statement/EHC Plan?
‘Adequate progress’ is defined at Paragraph 5.42 of the SEN Code of Practice 2001; Below is the non-exhaustive list, therein provided, of what amounts to ‘adequate progress’—in the majority of cases the most relevant factors are whether a child is:
- Closing the attainment gap between them and their peers;
- Preventing the attainment gap growing wider;
- Matching or bettering previous rates of progress;
- Being able to access the full curriculum;
- Demonstrating an improvement in self-help, social or personal skills; and
- Demonstrating improvements in behaviour.
‘Adequate progress’ is defined at Paragraph 6.5 of the Draft SEN Code of Practice 2014; which again provides a non-exhaustive list of features thereof; namely, progress which:
- Is similar to that of peers starting from the same baseline;
- Matches or betters the child’s previous rate of progress;
- Closes the attainment gap between the child and their peers; and
- Prevents the attainment gap growing wider.
This section in the new Draft Code remains broadly the same as the corresponding section in the previous Code. If a child has failed to make ‘adequate progress’, then it will be necessary for the school, the child’s parents and other professionals involved to consider what additional or different action should be taken to ensure progress. In doing so, the level and extent of the child’s learning difficulties, current attainment levels and the support they have already been provided with, including support independently provided by their parents (such as extra specialist teaching, speech and language and occupational therapy) should be taken into account.
If, after considering all these factors, it becomes clear that a child requires support over and above that provided within the school’s resources in order to make “adequate progress”, it will be “necessary” to apply for a Statutory Assessment (see below).
Once a child has a Statement or EHC Plan, the question of whether he/she is making ‘adequate progress’ will still be at the heart of the issue of suitability of provision (including the child’s school setting). When education/NHS professionals review a Statement/EHC Plan—which a local authority is required to mandate on a yearly basis, to see whether a Statement/Plan needs amending—‘adequate progress’ should be in the forefront of their minds.
Tips for parents:
- Always ensure you take an active role in the decision-making process regarding your child’s special educational needs.
- Prepare to question and challenge the provision your child is receiving.
- Remember: a child’s support should allow him/her to make ‘adequate progress’; some schools and professionals will rely on any progress, no matter how small, as evidence of progress—regardless of whether it falls short of being ‘adequate’.
- Be wary of readily relying on National Curriculum Levels (or any equivalents) as evidence of progress; these levels are very broad and children are often over-familiar with material used; they will also be assessed subjectively by their class teacher, meaning that they can often mask the level of a child’s difficulties and the level of progress (if any) the child has actually made.
- Be cautious of the advice of local authority and NHS professionals. There are some excellent professionals working within these services, however, many of them will be service-led not needs-led (the legal requirement) in their recommendations for provision. Unfortunately, the fact that they are public sector employees can make them reluctant to do anything that runs contrary to their employer’s interest (which usually involves saving public monies). As a consequence, they often work on the basis of what provision is available within the school or local area and not on the basis of what is necessarily the legal requirement.
- If you can, seek independent expert advice regarding your child’s learning needs; independent experts (such as education psychologists) should give you an impartial view of your child’s needs and provision required. This will allow you to make an informed decision regarding your child’s needs and what provision is required.
- If you feel overwhelmed by any of the above (and many parents do) then seek professional legal advice and ensure that your child is receiving the right support (legal aid charities etc.).
- Finally, remember that your child only gets one education; if you do not review and challenge the education they receive, it can have an adverse effect on their whole future quality of life.
Does my child need a Statutory Assessment?
The legal threshold found at Section 323 of the Education Act 1996 (replaced by Section 36 of the Children’s and Families Act 2014 (the threshold remains the same)) that local authorities should follow, when determining whether to carry out a Statutory Assessment, is whether it is probably “necessary” for a local authority to determine the specialist provision required to meet a child’s special educational needs.
As stated above, in some cases, due to the severity of a child’s autism and associated difficulties, it may become clear—from birth or earlier development—that they will need a level of support not available within a mainstream school. Children falling into this category should be fast-tracked through the system and Statemented (or, from September, provided with an EHC Plan) with little difficulty; they will often be placed in specialist nurseries or schools. A parent of a child with severe difficulties should continue to question whether the support provided for their child’s Statement/EHC plan is adequate and can meet need—if not, they may need to question the professional providing the provision, regarding the effectiveness of the support; or to seek external advice.
In most other cases, the child will enter a mainstream setting and the level of support provided will be developed through the gradual approach outlined above. In some cases, this support will be escalated very quickly until the school cannot provide provision at a level to met need within its own resource and requires support at a level of a Statement/EHC Plan; either in the mainstream setting or in a specialist setting. In both situations, the school itself should decide it is “necessary” request a Statutory Assessment.
If the school does not do the above, it will be essential for the parent to monitor the level of support currently being provided to their child by the school and other professionals (as well as any support provided at home i.e. independent therapy); and review whether it is sufficient for his/her child to make adequate progress. The tips set out in the previous section will apply here; if your child is not making progress then you should request a Statutory Assessment—with or without the school’s support.
Please note: mainstream schools can be reluctant to support or make a request for a Statutory Assessment. This should not stop parents making requests, as many mainstream schools have a limited understanding of special educational needs and the relevant law involved and are often misinformed about when it is appropriate to carry out a Statutory Assessment.
All parents have a legal right to request a Statutory Assessment for their child. This right is the same for parents with children in local authority-maintained mainstream schools, academy schools, independent schools or home education.
Request should be made to the local authority responsible for the child. Each local authority will have a department which is responsible for the education of children with special educational needs. Details can be found on most local authorities’ websites; the name of the department will vary depending on each authority. If these details cannot be found on their website, you can telephone their general enquiries line.
The written request must be made by letter; it must state the child’s full name, date of birth and the school he/she attends. It should also outline the nature of the child’s special educational needs, how those needs are impacting on the child’s education and what support (including independent parental support) the child has received; giving reasons for why a Statutory Assessment is now necessary.
Top tip- I would suggest that, when making a request for a Statutory Assessment, parents send their request by special delivery or by recorded post. This is because local authorities have to comply with a legal time limit of 6 weeks when considering a request. From experience, some local authorities have delayed the consideration process by claiming that they have not received a request. By using special delivery or recorded post, a parent can prove service of a letter and hold a local authority to this 6-week deadline.
A local authority must consider a request made unless one has been made within the past 6 months. Whether a local authority agrees or refuses a Statutory Assessment it must provide parents with its decision within the 6 weeks. If it refuses, it must provide reasons and notify parents of their right of appeal to the Special Educational Needs and Disability Tribunal; and provide the Tribunal’s contact details.
Although an authority must consider a request, it is, regrettably, often the case that the authority wrongly turns it down—even if the request is strong. In such cases, it may be necessary to appeal to the Special Educational Needs and Disability Tribunal. If you believe that your and/or your child’s school request was wrongfully turned down, you may wish to seek external legal help in order to discuss whether or not the decision was correctly made and discuss the best strategy, going forward.
If your local authority agrees to a Statutory Assessment then, until September 2014, they should complete it within 10 weeks. This is when a variety of NHS and local authority professionals assess the totality of a child’s special educational needs and determine the specialist provision the child requires. The local authority must, within 2 weeks following the Statutory Assessment, determine whether a child’s special educational needs can be met within the provision available at their mainstream school, at a School Action Plus level. If it judges this to be the case, it should issue a Note-in-Lieu. If it does decide to issue a Note-in-Lieu, the parent(s) in question must be provided with a 2-month right of appeal to the SEND Tribunal against the decision not to issue a Statement.
If the local authority finds that the child requires support over and above that provided by a mainstream school at a School Action Plus Level, then it must issue a proposed Statement of Special Educational Needs. Within 8 weeks of issuing a proposed Statement, the local authority must negotiate the text of this document, before finalising it. This process is to be completed within a total of 26 weeks, from the original request for a Statutory Assessment.
From September 2014, this 26-week timetable for a Statutory Assessment to reach a conclusion will be condensed to 20 weeks in total. A response to a request will be mandatory within 6 weeks. Where an authority refuses a request, it must inform the parent(s)/young person of its decision and their right of appeal to the SEND Tribunal. When local authorities request information as part of the assessment process, those supplying the information must respond within a maximum of 6 weeks from the request for assessment. If an assessment is undertaken, and a local authority decides not to issue EHC Plan as a result, the parent(s)/young person must be informed within 16 weeks of the request and provided with a right of appeal to the SEND Tribunal.
If the authority decides to provide an EHC Plan, it must sent a draft to the parent(s)/young person in question, allowing them 15 days to comment on it and request an educational institution to be named; if they seek a personal budget, they must request it at this point. The local authority will then have 15 days to consult the education setting requested before naming them. Following consultation, the local authority must finalise the EHC Plan, within the 20-week window. If the parent(s)/young person is/are unhappy with the content of the final EHC Plan, they with have a 2 month right of Appeal.
Please note: local authorities often do not adhere to the deadlines within the timetable, despite the fact that it is a statutory timescale and can be legally enforced. This is unlikely to change with a condensed timetable.
Parents should always note down the date that the authority agrees to carry out a Statutory Assessment, to monitor the assessment timeline and ensure that the local authority complies with it. If a local authority does not follow this timeline and, after chasing, still fails to comply, it may be necessary to seek external advice as to resolving the situation.
Is my child’s Statement/EHC Plan appropriate?
Statements have to follow a prescriptive format; they must consist of 6 Parts. Only Parts 2, 3 and 4 of Statements are appealable to the Special Educational Needs and Disability Tribunal. Legally, Part 2 should outline all of a child’s special educational needs. Part 3 should include all the provision a child needs to make academic progress; it must fully outline this provision—its prescribed frequency (daily, weekly or monthly) and duration (minutes/hours) as well as the type of professional designing, monitoring and implementing it (i.e. a specialist dyslexia teacher, a speech and language therapist or an occupational therapist etc.). Part 4 should name a school capable of providing all the provision outlined in Part 3. All provision outlined in Part 3 and the school named in Part 4 of a Statement is legally enforceable. Local authorities are responsible for ensuring Statements are fully implemented (by funding the provision and ensuring it is being provided to the child in question by their school).
Under the current draft regulations and Code of Practice, the EHC Plan does not have to follow any standard format; it will be up to each local authority to determine the document’s structure. However, the principles outlined above remain the same (i.e. it should outline all of a child’s special educational needs; include all the provision a child needs to make academic progress; and name a school able to provide this level of support). The education sections remain the areas appealable to the SEND Tribunal.
It is envisaged that the issues regarding Statements will remain the same. The content of a Statement/Plan will depend upon the expert advice obtained by local authorities and NHS professionals during a Statutory Assessment or review of needs. A local authority, legally, must take into account independent expert advice obtained by parents in addition to the advice of its own professionals. Unfortunately, many local authorities fail to do so unless tribunal proceedings are brought against them.
The difficulty with local authority/NHS reports is that they are usually insufficiently detailed and will generally only provide provision that a local authority is willing to offer, which is usually a minimum standard of service. This is contrary to local authorities’ actual legal duty, which is to provide all support ‘necessary’ to meet a child’s learning needs.
Unfortunately, as a consequence, many Statements (or in the future, Plans) do not comply with the law. They often fail to fully note a child’s needs, fail to provide sufficient education provision and are vaguely worded when it comes to the provision required. As stated above, Part 3 (or its future equivalent) should state how frequently support should be delivered (daily, weekly or monthly), the duration of each instance of provision (minutes/hours) and the type of professional designing, monitoring and implementing any provision. Instead, Part 3 tends to be full of meaningless terminology like “access to” and “opportunities for”. Such terminologies make it very unclear to professionals implementing the Statement what they should be providing and it also makes it incredibly hard to legally enforce (i.e. how often is ‘regular’ specialist teaching?).
If the Statement fails to note all of a child’s learning needs in Part 2 and all the provision required in Part 3, it can lead to the school finally named in Part 4 of a final Statement being inappropriate. Again, although the format of an EHC Plan will be different, there is still the risk that the wrong school will be named, as a result of the child’s special educational needs being incorrectly detailed or the provision required being incompletely specified within the document.
If you feel that the content of your Statement or EHC plan (whether description, provision or school) is inadequate, it is suggested that you seek external advice regarding the necessity of appealing to the SEND Tribunal. You will have a 2-month right of appeal to the SEND Tribunal each time a Statement/EHC Plan is finalised. You will also, in the case of a local authority refusing to amend a Statement/EHC Plan following an Annual Review, have a 2-month right of appeal; this right of appeal should be provided within the letter from the local authority informing the parent(s)/young person of its refusal to amend. Details on appealing to the SEND Tribunal can be found of the SEND Tribunal website: please see http://www.justice.gov.uk/tribunals/send/appeals for further detail.