Education Law

1. Special Needs Admissions Bursary’s, Scholarships school fees Education Law Exclusions Educational Negligence/breach of contract Equality Act Exams Complaints

2. Failure to identify “Special Educational Needs” Section 20 (1) (CFA): • a learning difficulty or a disability which calls for special educational provision to be made for him or her. Section 20 (2) (CFA): A learning difficulty or disability if: • a significantly greater difficulty in learning than the majority of others of the same age, or • (b) has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools

3. Failure to provide SEN Support orRequest SA now EHC assessment • If no plan or statement your child with SEN should be on SEN Support • Section 66 CFA 2014: Duty on schools to use their “best endeavours” to secure special educational provision • Schools have a duty to ‘have regard’ to SEN code of Practice 2015 (chapter 6 schools) • SEN SUPPORT: the school must engage in a cycle of ASSESS → PLAN → DO → REVIEW • Communication and interaction - Cognition and learning – • Social emotional and mental health - Sensory and physical • Arecord of above must be kept in a SEN Support Record and made available to parents who should be informed /involved • All staff working with pupil should be made aware of their: • needs - outcomes sought - support and teaching strategies required. • The decision to involve specialists can be taken at any time and should always involve parents • Must provide annual report and meet parents 3 times a year • They should trigger an EHC needs assessment where • cannot meet a child’s needs – don’t have the expertise or funding to identify those needs or provision required - know what the child’s needs are and provision is but they cannot make that provision

4. Education Health and Care Plans • Legal threshold for when LA has to carry out an assessment: • S. 36The LA must secure an EHC needs assessment ...if, • (a) the child or young person has or may have special educational needs, and • (b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan. • Legal threshold for when LA has to issue a plan • S.37(1) Where, in the light of an EHC needs assessment, it is necessaryfor special educational provision to be made for a child or young person • (a) the local authority must secure that an EHC plan is prepared for the child or young person, and • (b) once an EHC plan has been prepared, it must maintain the plan.

5. Unlawful exclusions • A pupil is entitled to be admitted to a school irrespective of his disability and this should not be on terms less favourable that someone without one. • Mainstream schools are under a limited duty to ensure that children with SEN engage in the activities of school together with children who do not have special needs (s.35 (2) CFA 2014). • It is unlawful to exclude or to increase the severity of an exclusion for a non-disciplinary reason. For example, it would be unlawful to exclude a pupil simply because they have additional needs or a disability that the school feels it is unable to meet*, or for a reason such as: academic attainment / ability; the action of a pupil’s parents; or the failure of a pupil to meet specific conditions before they are reinstated.

6. Formal exclusions • The decision to exclude a pupil must be lawful, reasonable and fair. Schools have a statutory duty not to discriminate against pupils on the basis of protected characteristics, such as disability or race. Schools should give particular consideration to the fair treatment of pupils from groups who are vulnerable to exclusion. • Disruptive behaviour can be an indication of unmet needs. Where a school has concerns about a pupil’s behaviour it should try to identify whether there are any causal factors and intervene early in order to reduce the need for a subsequent exclusion • Head teachers and governing bodies must take account of their statutory duties in relation to special educational needs (SEN) when administering the exclusion process. This includes having regard to the SEN Code of Practice. • For those at risk of exclusion consider have all options been fully explored engagement of parents, Change of class, temporary placement in PRU, Managed move, Assessment of SEN, Allocation of Key worker , external advice and implementation of the same. * • Exclusion is a last resort (Exclusion Guidance 2012)

7. Failure to acknowledge disability • Section 6 (1) (EqA): • A person (P) has a disability if— • (a) P has a physical or mental impairment, and • (b) the impairment has a substantial and long-term adverse effect (12 m+) on P's ability to carry out normal day-to-day activities

8. Falling foul of the Equality Act • A person (A) discriminates against a disabled person (B) if: • (a) A treats Bunfavourably because of something arising in consequence of B’s disability, and • (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim e.g. Health and Safety can trump disability

9. Failure to make reasonable adjustments • There are 2 requirements applicable to schools: • RA Requirement 1: Where a PCP of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter(Admissions, Provision of education, Access to benefit or service) in comparison to persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. • RA Duty 3: Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison to peers who are not disabled • Aid is a piece of equipment e.g. special chair, computer. • Service is something people provide such as personal assistance / therapy

10. Failure to provide education • LA under obligation to provide full time education to those who are permanently excluded from school or who cannot attend school full time because of ill health, or other circumstances (s19 EA 1996). • LA must make arrangements where for any reason a child withy SEN of compulsory school age would not otherwise received compulsory education (SEN COP) • Full time not defined in law but alternative provision should be same amount of education as they would receive in a maintained school. • Should meet needs and enable good educational attainment including academic, personal and social.

11. Action when school not meeting needs/duties • Complaint to Governing Body/Appeal Panel. • Ofsted (limited) • Secretary of state for education DFE/EFA that school acting unreasonably. • Information Commissioner (limited data handling) • Judicial Review at the High Court (review a public body) where acting illegally, irrationally, procedural irregularity breaching human rights.

12. School’s discriminating • Complain to school referring to disability & reasonable adjustments as appropriate • Equality Act claim to Tribunal • Judicial review to High Court

13. LA not meeting duties • Complain to Local Government Ombudsman about maladministration leading to injustice: bias, misinformation, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude & arbitrariness). Job to determine what is ‘fair and reasonable’. Must complain to LA first and complain to LGO within 12 months. Injustice – fault – remedy – public interest. 2. Complain to Secretary of State • Complain to Information commissioner • Judicial review at High Court (illegality, irrationality, procedural impropriety, breach of Human Rights Act 1988.

14. LA making decision you disagree with • E.g. Refusal to assess, issue a plan, contents of plan, placement, ceasing to maintain • Mediation • Appeal to SEN Tribunal and Upper Tribunal

15. Where can you go for help • Charitable organisations: IPSEA (free and independent) • LA funded SENDIASS (free) • Legal aid solicitor (means tested – limited no rep) • Private solicitor (expensive)