What the law says about mainstream education (again!)


Douglas Silas looks again at what the law says about mainstream education for children and young people with SEN, bearing in mind also, the impact of Covid-19.

A couple of years ago I looked at the law on mainstream education. Although the law has not really changed, the world has now been turned upside down by the Coronavirus pandemic. I therefore thought that it may be a good idea for me to try and revisit the issue here.

What is the general law about mainstream education/inclusion?

The law says that local authorities (LAs) should usually provide a place within a mainstream school for children and young people with SEN. Mainstream schools include maintained schools, academies that are not special schools, maintained nursery schools, 16-19 academies, alternative provision academies, and PRUs. This is often referred to as mainstream ‘inclusion’.

Schools/colleges must also promote disability equality towards individual disabled children and young people, in line with the Equality Act 2010. This means that they must make reasonable adjustments, including the provision of auxiliary (i.e. supplementary) aids and services to prevent for disabled children/young people being put at a substantial disadvantage.

According to the SEND Code of Practice (CoP), mainstream placements must always do the following:

1. Use their best endeavours to make sure that a child/young person with SEN gets the support they need (i.e. do everything they can to meet children and young people’s SEN)

2. Ensure that children/young people with SEN engage in the activities of the school, alongside pupils who do not have SEN

3. Designate a teacher to be responsible for coordinating SEN provision (e.g. the SENCO) (although this requirement does not apply to 16-19 academies)

4. Inform parents when they are making SEP (special educational provision) for a child/young person with SEN.

Are pupils/students with SEN also considered to be disabled?

No, being said to have SEN does not always mean that you are disabled and vice-versa! Although it can often be quite a straightforward thing, this can sometimes be a bit of a tricky issue to determine. For example, even if a child has an Education, Health and Care Plan (EHCP), they are not automatically considered to be disabled.

However, if a child’s parent or a young person makes a request for a particular state-aided mainstream nursery, school or post-16 institution (e.g. maintained nursery schools, maintained schools, any form of academy/free school, a non-maintained special school, a state-aided further education/sixth form college (or independent school or specialist colleges which have been approved by the Secretary of State [called a ’section 41’ institution]), the LA must comply with that preference and name the school/college in the EHCP unless it can show that:

• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or

• the attendance of the child or young person there would be incompatible with the efficient education of others or the efficient use of resources.

If the LA considers a particular mainstream place to be incompatible with the efficient education of others, it must also show that there are no ‘reasonable steps’ that a mainstream nursery, school, or post-16 institution in its areas could take to prevent incompatibility.

What are ‘reasonable adjustments’/‘reasonable steps’?

There can be many reasonable adjustments that placements are already making for disabled pupils (such as the use of auxiliary aids, like coloured overlays for dyslexic pupils/students, pen grips, adapted PE equipment, adapted keyboards and computer software). Reasonable adjustments are often inexpensive and only sometimes involve a change in practice, rather than the provision of expensive pieces of equipment or additional staff.

There are also many examples of ‘reasonable steps’ to prevent a mainstream place from being incompatible with the efficient education of others, but there also may be cogent reasons why it may not always be possible to take reasonable steps in any given situation. However, any decision not to educate a child or young person in a mainstream setting against the wishes of the child’s parent or the young person should not be taken lightly.

How has Covid-19 affected things?

Where do I start! Covid-19 has really turned the world upside down these past couple of academic years hasn’t it? Between March 2020 and March 2021, it felt for schools/colleges to be a bit like the ‘hokey-cokey’ (‘in, out, in, out…). One thing that became increasingly clear though whilst schools/colleges were closed, was that children/young people with SEN were being affected disproportionately.

However, things seem to be getting back to a bit of normality as I write this. In terms of plans from the Government/Department for Education (DfE), I’m afraid that there seem to be new announcements regularly, so it would be foolish of me to try and say things here, as information may have changed during the time between my writing this and my article being published. However, one issue that has been agreed to is the need for ‘catch-up funding’

What is ‘catch-up funding’?

‘Catch-up funding’ is to support children/young people to catch up on missed learning caused by the Coronavirus/Covid-19.

It is said to be especially important for the most vulnerable pupils and pupils from disadvantaged backgrounds who have been most affected. In June 2020, the Government announced £1 billion of funding to support children/young people for a number of mainstream and special schools (including funding to LAs for pupils with EHCPs educated in independent special schools based in their area).

However, recently, the person asked by the Government to report on what was required, Sir Kevan Collins, estimated that over £15 billion was needed and he subsequently resigned from his position when the Government only said that £1.4 billion would be made available. Sir Kevan was quoted as saying that this funding for school recovery “does not come close” to what was needed.

Douglas Silas
Author: Douglas Silas

Douglas Silas
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Specialist SEN solicitor Douglas Silas is the Managing Director of Douglas Silas Solicitors.
W: SpecialEducationalNeeds.co.uk
T: @douglassilas
F: @douglassilas


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