School Duties

What rights does a child or a young person with special educational needs (“SEN”) or disabilities have to education and/or training?

A local authority must carry out all its duties to children and young people with SEN or disabilities in its area under Part 3 of the Children and Families Act 2014 with a view to helping them “achieve the best possible educational and other outcomes” – section 19 (d).

A child is anyone from birth up to the end of compulsory school age (currently 16 years old) and a young person is anyone over compulsory school age (over 16 years old) and below 25.

There are many different types of early years settings, schools or colleges which a child or young person can attend.

Schools should identify and support children with SEN and/or a disability. Children may be supported from within the school’s own resources under SEN Support or they may have an EHC plan. Schools should record what SEN they have identified a child as having, what outcomes they expect the child to achieve with special educational provision, and what provision is being put in place to reach those outcomes in an SEN Support record. They should trigger an EHC needs assessment where they cannot meet a child’s needs. They should do so if they don’t have the expertise or funding to identify those needs fully or to identify the provision/support the child requires. They should also do so when they know what the child’s needs are and what provision should be put in place, but they cannot make that provision. In these circumstances, if the school has made them aware of the situation, the LA must agree to carry out an EHC needs assessment.

Further Education colleges should also identify and support young people with SEN and/or a disability. Young people may be supported from within the college’s own existing resources under SEN Support or have an EHC plan. The college must record what SEN they have identified a young person as having, what outcomes they expect to be achieved and what provision is being put in place to reach those outcomes in an SEN Support record. They should trigger an EHC needs assessment where they cannot meet a young person’s needs. They should do so if they don’t have the expertise or funding to identify those needs fully or to identify the provision/ support the young person requires. They should also do so when they know what the young person’s needs are and what provision should be put in place but they cannot make that provision.

Schools and other settings have clear duties under the SEN and Disability Code of Practice 2015 and must “have regard” to its contents. This means that they should do what it says or be able to explain why they have not done so and the alternative that has been put into place instead

Some children or young people cannot be educated in a school or college and may need to be educated at home or elsewhere.  If the LA is satisfied that it would be “inappropriate” for the child or young person to be educated at school or college, they can arrange for any special educational provision which the child or young person requires, to be delivered somewhere other than in a school, college or early years setting – and the LA would then be responsible for continuing to secure and fund that provision. (This is often known as “education otherwise”.)

This is different to the situation where a parent decides to Electively Home Educate (EHE) their child with SEN. This is a choice they are able to make if they want to home school their child.  However, in those circumstances, a LA would not have a legal duty to secure any special educational provision which was specified in the child’s EHC plan, because the parents would be making their own suitable alternative arrangements.

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 can only be refused by an LA in the most exceptional of circumstances. The right to a mainstream education does not prevent a parent/young person choosing a special school/college if that is the best choice for the child/young person.

The Children and Families Act 2014 brings in a new category of school, a “Section 41 school”. This is a new category of independent school or post-16 institution, specially organised to make provision for pupils with SEN, which have chosen this status. The effect is that parents or young people may request that such a school or college is named in an EHC Plan. It is therefore useful to know which schools and colleges have chosen to do so (not all have done so) and you can check by following this link to the Department for Education website:

https://www.gov.uk/government/publications/section-41-secretary-of-state-approved-list

Go to the top of the page and click the SCHOOL DUTIES RESOURCES tab for more detailed information about the following list:

  • Governors' duties;
  • SEN support for children and young people without plans in Schools and Colleges;
  • Different types of schools;
  • Inclusion in the mainstream for children and young people with SEN.

You can also click here to read our School Duties FAQs.

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This provides next step advice on: problems with schools, requesting statutory assessment, statements and Education, Health and Care Plans, annual reviews, disability discrimination and exclusion. Please click here to book an appointment to get one of our advisers to call you back.

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Our Tribunal Helpline Gives next step advice on SEN appeals and disability discrimination claims to the Special Educational Needs and Disability Tribunal. When you call we will also assess whether you need casework support. Please click here to book an appointment to get one of our advisers to call you back.

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