Legal Question – Inclusion Now 49

Q: My child has significant learning difficulties. The LA have now finalised her education, health and care plan (EHCP) and have named a mainstream school which I am pleased about. However it does not specify she must attend mainstream courses with significant curriculum differentiation, assisted by a specialist teacher (that the school does not have). My concern is that without any mention of participation in mainstream lessons the school will simply place her in the SEN unit full-time. What are my options, including going to the SENDIST (Special Educational Needs and Disability Tribunal), to help me secure a full time mainstream placement – one that goes beyond the minimum requirement that my child is on the roll of a mainstream school?

A: As the provision that your child needs isn’t in the final plan, I would recommend that you appeal to SENDIST to try and have the provision included in Section F and I would recommend you do this even if the Local Authority or school indicates that they can make this provision available without it being included in the EHCP. This is because unless the provision is clearly specified and quantified in the EHCP, the legal duty placed on Local Authorities to arrange provision does not kick in.

If you are appealing to SENDIST, you do not need to have legal representation; however, some parents prefer to. What you will need is evidence to support that the provision you are requesting is required to meet your child’s needs and ideally, if possible, you would want expert evidence to back this up. This is because the Tribunal determines cases on the basis of the evidence they have available to them and therefore if you do not have evidence to support that the provision is needed and the Local Authority produces evidence that it is not needed, this is likely to go in the Local Authority’s favour.

If the EHCP isn’t amended or your child starts attending the school whilst you are in the process of appealing and the school places your child in the SEN unit full-time, I would suggest considering pursuing a discrimination claim. This would be on the basis that they are segregating your child from their non-disabled peers. I think this would be grounds for a disability discrimination claim in particular if the EHCP just names the school and doesn’t specify that your child should be educated in the SEN unit.

Disability discrimination claims against schools are also made to SENDIST and you do not need legal representation to make a claim. However, some parents express a preference to have legal support, in particular as the arguments made in discrimination claims are more legal in nature than an EHCP appeal.

You, of course, have other options available to you such as making a complaint to the Local Authority for not putting the provision in the EHCP but I would recommend either appealing to SENDIST against the contents of the EHCP and/or making a discrimination claim.

Samantha Hale

Samantha is an Associate Solicitor with Simpson Millar and specialises in education, community care and public law.