Is your LEA breaking the law?
If so, we'd like to know!

November 2004

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Many local education authorities (LEAs) are issuing fresh policies for children with special educational needs (SEN) often labelled 'Inclusion'.

In these policies, LEAs are often setting unlawfully high barriers as criteria for statutory assessment and for the issue, or maintenance, of statements of special educational needs for children attending their local mainstream school.

What the law says

The law says an LEA must assess a child for a statement if there is a 'probability' that ordinary schools cannot meet all the child's special educational needs from the resources normally available to them. If this probability is confirmed by assessment then a statement must be issued.

IPSEA is currently challenging Devon and Merton LEAs for planning to set unlawfully high criteria for assessment and statementing. Lambeth, already the subject of a formal complaint by us to the Secretary of State for issuing non-specific statements that devolve responsibility for arranging statemented provision to schools, is also in our sights for further complaint for similar reasons. We have also had information that Sunderland appears to be setting unlawful criteria for assessment and are questioning them on this.

Examples of unlawful criteria

The LEA will only assess children whose special educational needs are:

'severe';
'complex';
'long lasting';
'lifelong';
'low incidence';

or

where the child is four, five (or more) years behind in attainment.
where the child is 'within or below the lowest 2 per cent of ability level'.

All of the above are unlawful if used on their own to:

• refuse to assess a child,
• refuse to issue a statement for a child
• withdraw an existing statement

The only lawful test is the ability of an ordinary school to meet all of a child's needs without additional resources. If additional resources are required, then a statement must be issued.

Over to you

Is your LEA refusing to assess, refusing to issue statements, or deciding to withdraw statements using reasons such as those set out above?

If so we'd like to hear from you. Please contact:

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