Laura Robertson-Hayes navigates communication with LAs.

No parent should have to fight for their child to receive an education. Unfortunately, many parents are acutely aware that the special educational needs (SEN) of their children are simply not being met but when they try to secure adequate provision, they are faced with barriers.

Under the Children and Families Act 2014, all local authorities must support children and young people with SEN (up to age 25)
to help them achieve the best possible educational outcome. Government figures suggest that 14.9% or approximately 1.3 million pupils in England have SEN. Of that figure, 3.1% of pupils have an Education, Health and Care Plan (EHCP).

Not all children and young people with SEN require an EHCP. In some instances where special educational provision (SEP) is required, the school has the means to provide this within their existing SEN budget. However, with increasing cuts, schools can no longer afford to provide the same level of provision they once could. Recent figures from the National Education Union estimate an annual shortfall in SEND (Special Education Needs and Disabilities) funding of £2 billion. As parents have increasingly found that the provision their child requires is no longer available, they have turned to local authorities to apply
for additional support through an EHCP.

Common Hurdles

Before an EHCP can be issued, an Education, Health and Care (EHC) needs assessment has to take place. Where it is suspected that a child or young person has SEN, this assessment can be requested by the child’s parents, the young person themselves or a teacher on behalf of the school. The decision to perform this assessment falls to the local authority. The local authority will gather information to help them decide whether the child or young person requires SEP that needs to be set out in an EHCP. If the local authority decides not to carry out an assessment, they must notify the child’s parents of this decision and their rights to a mediation or an appeal.

Once an EHC needs assessment has been carried out, the local authority will decide whether to issue an EHCP. It is not uncommon for local authorities to decide not to issue an EHCP on the basis that in their view, the child or young person is already able to access the SEP they require in their school setting. When parents are notified of this decision, they should also be advised of their rights to mediate and appeal.

Steps to Take

Mediation is a non-adversarial process where attempts are made to resolve disputed issues. Mediation should be a useful tool for settling disagreements but as the local authority is able to instruct their choice of mediator, parents are often left feeling at an immediate disadvantage. Furthermore, in my experience when parents have legal representation, local authorities have refused to meet them in a mediation. This is in spite of the fact that the local authority is represented by their own legal team and often, a barrister specialising in education law. It is not an even playing field. Should mediation be unsuccessful, or should parents choose
not to mediate, the next step is to lodge an appeal with the SEND tribunal.

Although a daunting prospect, parents should not be put off appealing a local authority decision. Figures show that success rates are high; in 2019/2020, 95% of cases decided by the tribunal were found in favour of the person bringing the appeal on behalf of the child or young person.

Legal representation is advantageous but not a requirement. When bringing an appeal, the person representing the child or young person is known as the Personal Representative. The tribunal members are aware that many Personal Representatives do not have legal representation and a non-adversarial approach is adopted throughout the appeal process. That being said, it is always worth contacting a solicitor for advice to see whether legal representation is an option for you. Bringing an appeal is a complicated process with strict deadlines. Legal support would always be beneficial.

For parents and young people going at it alone, the focusshould be on building up the evidence to demonstrate the child or young person’s SEN and the provision they require to meet this.

The first step in gathering this evidence is to involve the child or young person’s school. Meet with the Special Educational Needs Coordinator (SENCO) and explain the situation. Ask them to write to the GP to request a referral for an Educational Psychologist’s assessment.

Request copies of your child’s educational records. Collate these into a format which demonstrates that your child is in need of additional educational support. Consider asking a teacher to provide a written report documenting your child’s needs and any recommendations for support they may require.

If the child is receiving NHS care, seek support from their NHS practitioners. Write to the doctors or therapists. Ask them to
document the reasons as to why this child or young person has SEN and requires assistance in an educational setting.

If you have the means, instruct a private Educational Psychologist to prepare a professional report documenting your child’s needs. If you have particular concerns about a certain area, for example, communication, instruct a therapist to prepare a report evidencing the need for provision.

Write down your own concerns as a parent or carer. If your child attends any extracurricular clubs, ask if club leaders would be
willing to write a short letter backing provision.

Finally, take advantage of the support services provided by specialist organisations such as IPSEA or Contact. IPSEA are able to offer telephone appointments and Contact also have an advice line.

Taking on a local authority might feel like an intimidating process but my advice to all parents and carers is to be bold and act
confidently. The steps are not insurmountable and ultimately, the difference that a successful appeal can make to a child’s
education is immeasurable.

Laura Robertson-Hayes
Bolt Burdon Kemp | + posts

Laura Robertson-Hayes is a Senior Solicitor in the Child Brain Injury Team at Bolt Burdon Kemp



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