Nurseries, schools and colleges have a range of legal duties to support their pupils.

They have legal duties to support children and young people with special educational needs (SEN), however those with medical needs should also be supported. All settings must make sure they do not treat children and young people worse than others, or badly, because of their disability. They must also change what they do (or were planning to do) to make sure a disabled child or young person is not disadvantaged.

There are many different types of early years settings, schools or colleges which a child or young person can attend. Our page on choosing a school or college has more information about the different types of setting (such as mainstream or special).

Some of the information in this section relates to all nurseries (and other early years settings), schools and colleges (and other post-16 institutions). Some duties only apply to certain types of setting, and we set this out below.

SEN Support

Nurseries, schools and colleges should identify and support children and young people with SEN and/or disabilities.

Children and young people in mainstream settings may be supported from within the school or other setting’s own resources. This means your child, or you as a young person, receive special educational provision (additional help or support) but without an education, health and care plan (known as an EHC plan). This additional support is called SEN Support.

The nursery, school or college should record what:

• SEN they have identified your child, or you as a young person, as having
• outcomes they expect to be achieved by your child, or you, and
• provision is being put in place to reach those outcomes.

This should be written down in an SEN Support record. For more information on what SEN Support looks like in nursery, school and college, see our FAQs page.

One of the key duties is for the nursery, school or college to use their ‘best endeavours’ to support children and young people with SEN. This means doing everything that could reasonably be expected of them. This duty applies to mainstream settings and alternative provision settings, but not special settings or independent schools.

If your child’s mainstream school cannot meet your child’s needs, or your college cannot meet your needs, then they should request an EHC needs assessment. This might be because they don’t have the expertise or funding to identify those needs fully or to identify the provision or support required. It could also be because school knows what your child’s needs are, or college knows your needs, but they cannot make the necessary provision from their own resources.

If the setting requests an EHC needs assessment, your local authority (LA) must agree to carry it out if there is evidence to show that:

• the child or young person has or may have SEN, and
• that they may need support through an EHC plan (because the setting cannot provide the support they need)

You can request an EHC needs assessment for your child yourself if you want to. If you are a young person, you can also request an assessment for yourself. After the assessment, your LA may issue an EHC plan.

The Code of Practice

The SEN and Disability Code of Practice 2015 (known as the Code) contains guidance on what nurseries, schools and colleges should be doing to identify and support children and young people with SEN. The Code applies to all settings except independent schools.

Nurseries, schools and colleges must “have regard” to the Code. This means that they should do what it says or be able to explain why they have not done so, and what alternative has been put in place instead.

Inclusive education

All children and young people have the right to an inclusive education in a mainstream school or college with their typically developing peers if they want it. This includes being included in the activities of the school.

Mainstream schools and maintained nursery schools (but not FE institutions) must make sure that children with SEN engage in the activities of the school together with children who do not have special educational needs.

The school can only exclude them from activities if:

• it is not reasonably practicable for them to be included
• being included would prevent them from receiving the support they need, or
• being included would prevent the efficient education of other children or the efficient use of resources.

These conditions are set out in law (section 35 of the Children and Families Act 2014). Therefore a child can only be excluded from activities if one or more of these conditions applies.

The Equality Act 2010 may also be useful if your child is, or you as a young person are, being excluded from activities. This could amount to disability discrimination, as could being stopped from attending or excluded from school or college. There is other law that applies to exclusions from some types of schools too.

Inclusion is a fundamental principle underpinning the Code, which can be seen from paragraphs 1.24 onwards.

Schools, education and training providers are required to have Accessibility Plans outlining how they intend to make their setting more accessible for disabled pupils. You can find out more information on this on Alliance for Inclusive Education’s (ALLFIE) website.

If a lack of resources is a barrier to inclusion then this may be evidence that more or better provision is required, for example through the issuing of an EHC plan or by changes to an existing EHC plan.

Illness

If your child goes to:

• a maintained school
• an academy (but not a 16-19 academy), or
• a pupil referral unit,

the governing body or proprietor (in the case of an academy) “must make arrangements for supporting pupils at the school with medical conditions”.

This is a legal duty on them under section 100 of the Children and Families Act 2014. 

All medical conditions must be supported, whether they are physical or mental health needs.  

The Government’s statutory guidance explains to schools, parents and carers how this duty should be carried out.

The guidance clearly says that schools should make sure that:

• reintegration back into school is properly supported so that children with medical conditions fully engage with learning and do not fall behind when they are unable to attend (paragraph 3)
• arrangements are in place to support pupils with medical needs so that they can access and enjoy the same opportunities at school as any other child (paragraph 5), and
• staff are properly trained to provide the support that pupils need (paragraph 7).

The school should agree an individual healthcare plan with you. This will set out how your child’s health needs will be met, including when and by whom, and whether any staff training is needed. If your child already has an EHC plan, the help they need because of their medical condition may also need to be set out in that. The table below explains when it should be included and in which section.

The school must also have a written policy regarding pupils with medical conditions and how they will be supported. This should be available on the school website or on request.

If your child’s medical condition amounts to a disability, all settings have duties under the Equality Act 2010 to make arrangements to make sure that they can access education without significant disadvantage. This is the case even if your child attends an independent school.  

If your child cannot attend school due to illness, then your child’s school (even if it is an independent school) may have a duty to tell let your LA know, and your LA may be required to put in place suitable, alternative education. Please see our illness page for more information. 

If your child has an EHC plan, and a medical condition or disability that means they require a certain kind of support in school, such as help with toileting or eating, it might be appropriate for the support to be included in the plan. This table explains where:

Question	answer	then
does the medical condition or disability represent: a significantly greater difficulty in learning than the majority of others of the same age, or a disability which prevents/ hinders them from making use of facilities of a kind generally provided for others of the same age in mainstream settings? and is the help they need because of this special educational provision?	Yes	the medical condition or disability should be considered a special educational need (SEN) and included in section B of their EHC plan. The help that they require because of this must be included in section F of their EHC plan. In addition, the setting might be required to provide the support as a reasonable adjustment to ensure it doesn’t discriminate against disabled people. You can read about disability discrimination in schools on our website.
	No, but: their medical condition or disability is a health need which relates to their SEN, or might need management in their educational setting and  the help that they need because of this is a type of health care provision.  This may include things like specialist support and therapies, such as medical treatments and delivery of medications, physiotherapy, a range of nursing support, specialist equipment, wheelchairs and continence supplies.	the medical condition or disability should be included in section C of their EHC plan and the help that they need should be included in section G. In addition, the setting might be required to provide the support as a reasonable adjustment to ensure it doesn’t discriminate against disabled people (please see below for more information on this).

Accountability and responsibility

The governing body, or trust, of your child’s school is the decision-making body and is accountable and responsible for what the school does. Guidance for governing bodies and trusts is clear that “It is vital that boards play an active role in providing support and challenge, to ensure schools are providing the best support for pupils with SEN and disabilities.”

Your child’s school board or trust should get appropriate and regular training to help it carry out its duties in relation to SEN and disability, and to help ensure the best possible outcomes for children and young people.

They should be asking questions of senior leaders to assure themselves that the school is providing the right support to children and young people with SEN and disabilities, not simply accepting the word of the headteacher.

They can use the checklist in the guidance for these bodies which helps them understand their role and responsibilities in providing appropriate support and challenge when those responsibilities are not being met.

If you feel your child’s school’s board or trust is not creating an environment in which all pupils can thrive and play a full part in the life of the school, you can refer it to the guidance and ask it to take action to ensure that it does.

Taking action

If your school or college is not following its legal duties, there are a number of ways in which you can challenge this.

Please note the situation is different for independent schools. Most of the duties on this page do not apply to fully independent schools and other institutions. However all schools (including independent ones) must:

• make a ‘sickness return’ to their LA when a pupil of compulsory school age is recorded in the attendance register as unable to attend because of sickness, and they have reasonable grounds to believe the pupil will miss 15 school days (either back to back or over the school year) because of sickness, and
• comply with the Equality Act 2010.

For more information, see our FAQ on independent schools and our page on illness.

If you haven’t been able to find the answer to your question on this page, see our FAQs.