Children's Law Centre ‘Rights House’ 127-131 Ormeau Road, Belfast, BT7 1SH

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Special Education Needs


What is a special educational need?
When a child needs help at school because of a learning difficulty, the child is said to have a 'special educational need'.
What is a learning difficulty?
The legal definition of 'learning difficulty' applies to a large variety of situations. The law says that a child with a learning difficulty has:

(a)  significantly greater difficulty in learning than the majority of other children of the same age;and/or

(b)  a disability which makes access to education difficult unless help is providedChildren below school age may also have a learning difficulty if they are likely to need assistance for the reasons at (a) or (b) above when they do go to school.
What kinds of problems fall into the definition of “learning difficulty”?
There is no limitation on the list of learning difficulties and each child should be looked at as an individual. Learning difficulties can be short-term or long-term. Some children may have a combination of different learning difficulties. The five Education and Library Boards in Northern Ireland as well local schools within those five Boards record the following categories of learning difficulties:
  •  Moderate learning difficulty, severe learning difficulty or dyslexia (specific learning difficulty)
  • Social, emotional and behavioural difficulties
  • Physical or medical difficulties (including syndromes)
  • Pre-school children with developmental difficulties
  • Sensory impairment (hearing/vision)
  • Speech and Language difficulties
  • Complex interaction of needs
What support are children with special educational needs entitled to?
Children with special educational needs are entitled to special educational provision to meet their identified needs. This is additional help that is not generally available to all children at school. For example, a child with dyslexia may access small group teaching in English and/or maths; a child with a visual impairment may receive handouts in larger print; a child with autism may require a classroom assistant; a child with communication difficulties may require speech and language therapy to enable him/her to learn.
What is the special educational needs register?
Children with special educational needs may be placed on the school’s special educational needs register which starts a process of providing individual support tailored to the child’s individual needs. By law, there is a five stage system of support which is explained in the Department of Education’s Special Educational Needs Code of Practice.
What is the “Code of Practice”?
The Code of Practice and supplement are booklets containing statutory guidance produced by the Department of Education which contain straightforward guidance about children’s legal rights to have their needs identified, assessed and met using the principle of early intervention. The Code and supplement also include useful practical examples.
What are the “Five Stages of the Code of Practice”?
Stages 1-3 may include access to school-based help and support where the class teacher and the school’s Special Educational Needs Co-ordinator (SENCo) provide help which is designed to meet the child’s individual needs.

At Stages 1, 2 and 3 the school is legally responsible for the child’s special educational provision.

Stage 3 may involve help from specialists outside the school such as an educational psychologist, speech and language therapist or occupational therapist.

At stages 4 and 5 the local Education and Library Board becomes more substantially involved in your child’s educational provision and has specific legal responsibilities regarding special educational support for children.

Stage 4 is a process called “statutory assessment” which aims to identify in detail the needs of the child using parental, school-based and professional information and assessment reports.

Stage 5 involves the making of a “statement of special educational needs” which sets out the child’s needs and the provision which will be made to meet those needs. Detailed information about these 5 stages is available in the special educational needs Code of Practice.
What is a statutory assessment?

A statutory assessment is a process of gathering full up to date information about a child’s needs and the impact of his/her learning difficulty on the child’s school experience. The Education and Library Board gathers information called “advices” from parents/carers, the child’s school, relevant professionals such as an educational psychologist, a child’s therapists, medical professionals involved with your child, social services and any other relevant persons. When the Board has collected all of the advices it will examine the findings and decide whether it is necessary for the Board to take the lead responsibility for the child’s special educational provision by making a statement of special educational needs.

When is a statutory assessment likely to be carried out?

Many children do not require a statutory assessment in order to ensure that their needs are met at school. This is because the school itself can take action to help the child to learn at school. On the other hand, when a child’s needs are significant and/or complex it may be necessary for the Education and Library Board to carry out a statutory assessment to find out whether extra support, provided directly by the Board is required e.g. a classroom assistant.

Often a child will already be on Stage 3 of the Code of Practice when a request for a statutory assessment is made. However the 5 stages are not “hurdles” which have to be crossed in turn and in some complex or serious cases it is appropriate to request a statutory assessment when no previous action has been taken at stages 1-3.

How do I get a statutory assessment for my child?

A parent/carer of a child can ask for a statutory assessment. This request should be made in writing and should be dated

Parental_Request_for_Statutory_Assessment_Template_March_2013.doc

There is a 6 week time limit for the Board to respond to this written request for a statutory assessment to say whether or not it will carry out the request.

A school can request a statutory assessment and will do so when it has tried all available teaching and learning strategies within the schools own resources and is of the opinion that the needs of the child cannot be met by the school alone and help from the Education and Library Board is required.

What can I do if I am refused a statutory assessment?

A refusal of a formal request for statutory assessment will result in a right of appeal to the Special Educational Needs and Disability Tribunal (SENDIST) for the parent/carer.The appeal must be made within 2 months of receipt of the letter notifying the parent/carer of the refusal to carry out a statutory assessment.

How long does a statutory assessment take?

A statutory assessment normally takes about 6 months to complete. There are legal time limits set for the Education and Library Boards to comply with but these have quite a bit of flexibility. However, if there are unnecessary delays in the process, free legal advice about how to deal with delay is available from the Children’s Law Centre.

If you have any questions about the statutory assessment process contact CHALKY on 08088085678.

What is a statement of special educational needs?

A statement of special educational needs is a written document which should detail a child’s individual special educational needs and the specific provision which the Board will arrange to meet those needs. The contents of a statement are legally binding. The wording of the statement should be clear and thorough. Parent’s/carers have a right to be involved in the drafting of the statement and to seek amendments before it is made final. This can be a complex process and parents/carers may wish to seek free legal advice from the Children’s Law Centre.

What details should be included in a statement of special educational needs?

Complete, clear, thorough statements are required by law. A statement which is not properly detailed does not comply with the law. The more specific and detailed the statement is, the more easily it can be legally enforced if provision is not properly arranged or carried out by the local Education and Library Board.

Part 1 of the statement sets out the child’s general details e.g. date of birth, parents details etc.Part 2 of the statement sets out a description of the child’s special educational needs.Part 3 sets out the special educational provision that will be made to meet these needs.

It is very important in order to create enforceable legal rights for the child that needs in Part 2 and the provision in Part 3 are clearly spelled out and are not open to more than one interpretation. For example the words “an appropriate level of adult assistance” could mean 25 hours of help per week or 1 hour per week. This is not clear enough to ensure the provision is properly carried out. Instead, it is usually in the child’s interests to spell out the exact number of hours of classroom/adult assistance.

Similarly, if a child needs therapies to access education such as speech and language therapy or occupational therapy these should be listed as educational needs in Part 2 and clearly set out in Part 3 as educational provision. In practice therapies are often inserted into a section entitled “non-educational needs” so that Education and Library Boards are not responsible for arranging these. If the therapies have a direct impact on a child’s ability to learn, then they should be listed under “educational” needs and should be included in Parts 2 and 3 of the statement. This secures the provision for the child and ensures that it is legally enforceable.

The process of spelling out the exact provision for the child within Part 3 of the statement is called “specifying and quantifying”.

“Specifying” means stating what the provision will be e.g. classroom assistance.

“Quantifying” means saying how provision is guaranteed e.g. 25 hours per week.

If the statement is too vague, parents/carers can write to the Education and Library Board and request that the provision is specified and quantified on the statement. This will ensure that if the child does not receive the provision, the parent/carer can insist on provision as a specific legal right.

Parts 5 and 6 of the statement record non-educational needs and provision e.g. transport. Beware that therapies may be included in the non-educational section when in fact they are educational needs. In order for the Education and Library Board to be held legally responsible for making provision for a child, the therapies or other provision must be placed in Parts 2 and 3 of the child’s statement.

If you have any questions about the statementing assessment process contact CHALKY on 08088085678.

What is the SENDIST?

The SENDIST is the Special Educational Needs and Disability Tribunal. It is an independent appeal panel which considers parental appeals against Education and Library Board decisions about special educational needs. There is no separate right of appeal to the SENDIST for a child.

SENDIST also considers parental disability discrimination claims against schools and/or Boards.

In what circumstances can I make a special educational needs appeal to the SENDIST?

The following circumstances may be grounds for appeal to SENDIST:

  •     Refusal to carry out a statutory assessment
  •     Refusal to carry out a statutory reassessment
  •     Refusal to make a statement of special educational needs
  •     Appeal against the contents of a statement – Part 2 (needs) and/or Part 3 (provision)
  •     Appeal against the school placement named in Part 4 of the statement
  •     Refusal of a request to change the school named on a statement
  •     Decision to cease to provide a statement
  •     Refusal to amend a statement after a statutory reassessment (note: this does not apply to a psychology “review” of a child – there must be a formal “reassessment”)

Free legal advice on whether a valid ground of appeal exists may be sought from the Children’s Law Centre.

Time Limits for Special Educational Needs Appeals to SENDIST

The time limit for appeals to SENDIST in relation to special educational needs is 2 months from the date of receipt of the letter from the Board to the parent/carer which outlines the disputed decision. This letter should also state that the parent has a right to appeal.

How do I lodge an Appeal with SENDIST?

A booklet entitled “How to Appeal” is available from the SENDIST, where staff can be contacted by telephone on 028 9072 4887 or 028 9072 4847.

The address of the SENDIST is as follows:

Special Educational Needs and Disability Tribunal
Tribunal Hearing Centre
3rd Floor
Bedford House
16-22 Bedford Street
Belfast
BT2 7FD

In order to make an appeal parent can call the SENDIST and ask to lodge an appeal. The booklet and forms will be sent out by post or e-mail.

The form asks for general contact details, the nature of the appeal and asks that you set out reasons for appeal.

Parents may seek free independent legal advice from the Children’s Law Centre to ensure all relevant reasons for appeal are included.

If you have any questions about the grounds of appeal to the SENDIST or how to draft your Notice of Appeal contact CHALKY on 08088085678.

How long does a SENDIST appeal take?

Currently, appeals take approximately 14 weeks from registration of the appeal to hearing of the appeal. It takes a further two to three weeks for the issue of the written decision of the tribunal.

Do I have to wait for a SENDIST hearing to resolve the issues?

Parents/carers should try to reach agreement with the Education and Library Board throughout the time leading up to a hearing and in many cases it is possible to reach agreement after lodgement of the appeal but before a hearing.

Parents/carers may use the Dispute Avoidance and Resolution Service (DARS) at any time to assist in resolving disagreements between parents and schools or Education and Library Boards in relation to special educational needs. This does not affect the right to appeal to SENDIST.

It is important to note that the time limit for appeal to SENDIST continues to run and the appeal should be lodged with the 2 month time limit even if negotiations are ongoing to protect the child’s rights in the event that agreement cannot be reached.

Parents/carers may seek free independent legal advice from the Children’s Law Centre to ensure they know their legal rights before negotiating with the Board and particularly once a potential agreement has been proposed.

It is strongly recommended that a SENDIST appeal should not be withdrawn by a parent until the agreement is confirmed in writing by the Board and the parent is satisfied with all aspects of the agreement.

What happens at a SENDIST hearing?

Special educational needs appeals are heard by a panel of three decision-makers which includes a legally qualified chairperson and two lay-members who will have relevant practical experience. The parents/carers, Education Library Board representatives and any witnesses either party wish to call, may attend to give evidence. The child is entitled to attend and give evidence to the tribunal.

Parents may self-represent or may engage the help of an advocate or lawyer to present their case. In a limited number of cases, the Children’s Law Centre provides free representation in line with casework criteria.

The hearing is intended to be relatively informal with each person being given an opportunity to present their point of view and opportunities being provided to discuss matters issue by issue. However parents/carers and professionals often find the prospect of a legal hearing to be stressful and are worried about what will happen. It is therefore important to seek information from SENDIST or from the Children’s Law Centre about what will happen at the hearing as part of the process of preparing for a hearing.

The organisation and planning of the evidence to be presented can be a complex process governed by strict legal rules, regulations and time limits.

It is therefore recommended that parents, carers, young people and any other interested parties make contact with the Children’s Law Centre who can provide free legal advice and information at the earliest possible stage.

How is a decision reached by the SENDIST?

The panel decides by a majority vote and normally gives its decision and reasons in writing within two to three weeks after the conclusion of the hearing.

Can I appeal a decision of the SENDIST?

If you wish to appeal a decision of the SENDIST, you should seek legal advice as the rules on appealing are complex. Legal advice is available free of charge from the Children’s Law Centre.

There are limited circumstances in which a decision can be challenged. These include an application requesting the Tribunal panel to review their decision. This application must be made in writing within 10 working days of the date the decision was issued. A parent/carer can also appeal to the High Court but only where the Tribunal panel have made an error of law.  

If you are considering taking an appeal against a decision by the SENDIST to the High Court you may be able to apply for legal aid under your child’s name. Legal advice is essential if this course of action is being considered.

The right of the child to be heard, including at the SENDIST

A child has a legal right to be heard and to have his/her views taken into account when decisions are being made which affect him/her. All reasonable efforts should be made to ascertain the views of the child about his/her special educational needs and the help which is needed.

The views of the child should not only be listened to, but should be properly taken into account in light of the child’s age, maturity and understanding. Children with a disability have the right to have assistance to enable him/her to give views throughout all stages of the processes of identification, assessment and review.

Children have a specific legal right to attend the Special Educational Needs and Disability Tribunal and to present their own views about the impact on them of decisions which have been made in relation to their education.

Contact Info

Children's Law Centre
‘Rights House’
127-131 Ormeau Road,
Belfast,
BT7 1SH

Tel: 028 90245704
Fax: 028 90245679

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