Nurseries, schools and colleges have legal duties to support children and young people with special educational needs (“SEN”).

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.

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 they receive special educational provision (additional help or support) but they do not have an Education, Health and Care plan (an “EHC plan”). This additional support is called SEN Support.

The nursery, school or college should record what SEN they have identified a child or young person as having, what outcomes they expect the child or young person to achieve, and what provision is being put in place to reach those outcomes. This should be written down in a 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 duty applies to mainstream settings and alternative provision settings.) This means doing everything that could reasonably be expected of them. For more information about this, see our page on the best endeavours duty.

Where a mainstream nursery, school or college cannot meet a child or young person’s needs, 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 the child or young person requires. Alternatively, it might be because they know what the child or young person’s needs are, but they cannot make the necessary provision from their own resources. If the school can show that the child or young person has or may have SEN, and that they may need support through an EHC plan (because the school cannot provide the support they need), the local authority (“LA”) must agree to carry out an EHC needs assessment. (Parents or young people can also request an EHC needs assessment themselves if they want to.) This may lead to the child or young person being given an EHC plan.

The Code of Practice

Nurseries, schools and colleges have clear duties under the SEN and Disability Code of Practice 2015 (the “Code”). This contains guidance on what they should be doing to identify and support children and young people with SEN. The Code applies to all settings except wholly 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

A child or young person has a 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.

Find out more about the right for children and young people with SEN to attend a mainstream school here.

Mainstream schools and maintained nursery schools (but not FE institutions) must ensure 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 the 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 is also useful if a disabled child or young person is being excluded from activities. Their exclusion could amount to disability discrimination.

Inclusion is a fundamental principle underpinning the Code – see paragraphs 1.24 onwards.

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

Making a complaint

If your school or college is not complying with its legal duties, there are a number of ways in which you can challenge this. For more information see the section on making a complaint.

 

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