The most important decision you will make for your child is where to send them to school.
But what education is a child with special needs entitled to? And what are your rights when your local authority disagrees with your decisions?
Here Alex Rook, Associate Solicitor at legal firm Irwin Mitchell, answers some of the most commonly asked questions about children’s rights to education.
If you express a preference for a school while a statement of special educational needs is being prepared, then under the Education Act 1996, the local authority must abide by your preference.
The only exceptions are when the school is unsuitable for the child’s age, ability or aptitude, or if the placement would be incompatible with the education of other children, or if it would be incompatible with the efficient use of resources.
However, under the Equality Act 2010, the local authority should consider what reasonable steps could be taken to remove these incompatibilities, before it decides that a child should be schooled elsewhere.
The starting point is that any child of compulsory school age living beyond the legal walking distance to their school is entitled to receive from its local authority suitable school transport.
Walking distance is defined as two miles for children under eight and three miles for children aged eight and over. This applies whether or not your child has a disability.
For children with special needs (whether or not they have a statement of special educational needs (statement)) a local authority will be under a duty to provide suitable home-to-school transport if there are no other travel arrangements in place and your child is unable to walk to school because of physical disability.
The local authority should have a policy which provides more detail about how it will assess and consider applications for school transport, including the mode of transport that might be suitable for your child.
For children who are not of compulsory school age, the local authority does not have a legal duty to provide school transport, but the local authority’s policy may make provision for transport to be provided, particularly if the child has a statement which names the school your child is expected to attend.
You may wish to consider approaching the school to discuss your child being placed on the special needs register if that has not already happened.
This will enable your child to receive additional support in school under School Action, School Action Plus or an equivalent programme.
In some cases, it may be necessary to ask your local authority to intervene and do a formal assessment of your child’s special educational needs (otherwise known as a statutory assessment).
This may lead to a statement being made, setting out your child’s needs, the special educational provision for your child and the school where your child will attend to receive that education. The statement will be reviewed at least annually and kept updated.
If the local authority declines to do a statutory assessment or make a statement or makes a statement that you disagree with, you may be able to appeal to the First Tier Tribunal (Special Educational Needs and Disability). You can obtain further information from the Tribunal’s website at First-tier Tribunal (Special Educational Needs and Disability) – GOV.UK (www.gov.uk)
The relevant forms, rules and guidance notes in relation to attending the tribunal are available on this website: First-tier Tribunal (Special Educational Needs and Disability) – GOV.UK (www.gov.uk)
The Independent Parental Special Education Advice Organisation (IPSEA) also provides information, advice and assistance for those preparing for a tribunal.
Alternatively you could instruct a specialist education lawyer, who could advise you in advance of the tribunal. Public funding is available to parents who qualify for advice and assistance.
All children are entitled to a home education, whether they are disabled or otherwise. In addition, a local authority may decide to fund the home tuition of a child with special educational needs, because their identified needs cannot be met within a school.
S.319 of the Education Act 1996 envisages that all or part of a child’s special educational needs, as identified in their statement, might need to be provided otherwise than at school.
There is no automatic right to a statement. It is up to the local authority to decide whether a child should have a statement after it has carried out a statutory assessment, which is a process designed to gather all of the relevant information and evidence.
A statement will be issued when it is deemed to be necessary in order to determine the educational provision which the child’s learning disability calls for.
There may be children with special educational needs where it is not necessary for a statement to be issued. This might apply to your own child.
If you believe, however, that the local authority has made the wrong decision because, for example, it has relied on inaccurate information or evidence, or has not taken into account other matters, you may wish to consider making an appeal to the Tribunal.
