|What particular potential legal pitfalls should SEND practitioners look out for in the year ahead as the Code embeds?
“SENCOs within a school need to be alive to the fact that (based on the Code) their role is now a very different one. It’s a big personal challenge for SENCOs to accelerate their personal development in a direction that they may never have expected to. Now they need to become strategic, overarching advisers on SEND matters, as opposed to the doers and implementers that many have been over the past two decades. Of course, that creates a level of legal risk, because anybody who accelerates their professional skills may have to take risks that they do not feel prepared for.
“In the same vein, many individual class teachers will need to add more strings to their role’s bow over the current academic year. The changes haven’t bitten yet, but the Code requires schools to engage with the performance management of the classroom teaching of pupils with SEND. Of course, in the past, some teachers (particularly in primary schools) have tended to focus on teaching those children who don’t have SEND and have sought SENCO guidance for any child with SEND. So the Code turns traditional thinking on its head. So, now, every child in a teacher’s class needs to hit their targets and outcomes – whether or not they have SEND.
“In the future, it will be particularly interesting to see the impact that this has on accountability. Because, if I were the parent of an SEN pupil and I felt that the classroom teacher wasn’t sufficiently expert (or perhaps they weren’t applying themselves adequately), then I would probably rattle the school’s cage from a legal perspective and say that they weren’t delivering. Therefore, SENCOs and class teachers need to be aware of these pitfalls, as the new Code requires a dynamic between the class teacher and the SENCO that differs from the more traditional relationship.
“At the local authority (LA) level, the content of the EHCPs is going to be riven with pitfalls. Because, as the legislation developed, it sort of fell between the stools. As EHCP guinea pigs, the pathfinders were given a high degree of freedom about how they drafted the actual content of their plans. However, whilst the pathfinders enjoyed this freedom, on the other side of the coin, the legislation and the Code defined the areas that needed to be included in the plans in more detail. So, there’s a dichotomy there that has the potential to cause problems.
“The overarching legal challenges are:
- Whilst the Act, the Code and the regulations are trying to usher in dramatic cultural change over the next few years, the case law that applies to this area has not been overruled and continues to have effect. So, when one looks at some of the key legal concepts that have defined some of the big legal pitfalls in the drafting of statements, time and again one comes across the concepts of specificity and quantification. And this begs the following question: ‘are the contents of the EHCPs going to be sufficiently specific and sufficiently quantified to enable the end user to challenge where they feel they are not getting what they are entitled to?’
- EHCPs are supposed to be squarely focused on outcomes. The engine for a plan and for the review of a plan is meant to consist of the outcomes and the achievement of the outcomes. But, with this, there is a real risk of a more general approach to the content of provision contained in the plan. The legal pitfall here is that some will fairly argue that the plan is still a legal document; that it’s enforceable in a tribunal; and that it has to be suitably quantified in terms of the provision that it offers.
- The potential for friction between the end user (who wants to keep a plan tight, specific and detailed) on the one hand and the LA on the other (as they manage large budgets, want to be flexible and do not want to pin themselves down to certain elements of provision).
“Overall, it’s too early to really to see how exactly this will work out. It will certainly become clearer once the transition period between statements and plans has elapsed. However, in the meantime, these are pitfalls that SEND practitioners, LAs and all those on the frontline should be aware of.”
A reader’s question: “If a child’s attainment is average or just below, but their potential is far greater (as they have an SpLD or a medical problem), would they not be able to have an EHCP or a plan? I have heard that if attainment is average, then a plan will not be considered at all.”
“I am not surprised to hear this question. There has been a huge amount of discussion during the gestation of the Act and one of the key points was the threshold question. Particularly, was there going to be a fundamental change in the – what I tend to call – ‘entry ticket’ to get a statement or plan? Whilst rumours have been circulating across the country, the legal position hasn’t changed at all, but I qualify it with a healthy dose of realism.
“The legal answer is that the key tests remain the same as they did under the previous regime. The reforms have not changed the definition of who has an SEN:
- A child or young person has SEN if they have a learning difficulty or disability which calls for special educational provision to be made.
- A child of compulsory school age or a young person has a learning difficulty or disability if they have significantly greater difficulty in learning than the majority of others of the same age, or they have a disability which prevents or hinders them from making use of the facilities of a kind that are generally provided for others of the same age in mainstream schools.
“Remember, it shouldn’t be about academic attainment levels, as it’s really about the severity of the obstacles that are preventing each child/young person from achieving their educational outcomes. For example, a child might have a physical disability (with no cognitive issues), but could be entitled to a plan if it could be shown that the existence of that physical disability was a barrier to learning. So, in this instance, the fact that the child is cognitively sound and a high/low achiever has no relevance. What is relevant is the fact that this child’s physical disability means that they have significantly greater difficulty in learning than the majority of others of the same age, which creates eligibility for a plan.
“The healthy dose of realism revolves around the continuum of scenarios which brings you into the area where you might, in theory, be eligible for a plan. The more profound your difficulty, the more profound the obstacles, the more likely it is that you are going to be found eligible for a plan. On balance therefore, it is fair to say that – all else being equal – it is usually more difficult for those who are cognitively sound to get a plan.
“Of course, ultimately, SEN is not about ability/attainment, that’s something that sometimes gets lost. People who have SEN are not, by definition (certainly not by legal definition), low ability/high ability – that shouldn’t come into it at all.”
A reader’s question: “Can LAs ignore diagnoses from independent parties such as independent educational psychologists (EPs) — for example, in the case of an independent diagnosis for autism?”
“There is a distinction to be made between ignoring and being entitled to give different weights on evidence in order to make a decision.
“On the one hand, no, they absolutely shouldn’t be ignoring something that’s been submitted as part of an assessment, just because it comes from an independent EP/clinical psychologist, or whoever it is. If the parents/carers have acquired something like that, then it should be put into the mix and assessed as part of the big picture. I think that the difficulty comes when, say, an independent EP puts forward a position that isn’t necessarily sustained by some of the other evidence that has been acquired as part of the statutory assessment. Parents will hope that it will be given definitive weight and, of course, it won’t be. It will just be looked at as part of the assessment.
“But, of course, if a parent is able to show, or indeed a SEND practitioner is able to demonstrate that the evidence was simply ignored, that there wasn’t even an assessment of its weight and/or that it wasn’t even read and taken into account, then that would be inappropriate and potentially unlawful. But, of course, they are perfectly entitled to reach a different conclusion on it and that is obviously something that creates friction, especially when parents have gone out and spent their own money on a private report.”
A reader’s question: “Precisely how much of the SEND Code of Practice applies to independent schools?”
“The SEN aspects of the new Code only apply to specific independent schools, namely those that have Early Years provision that is funded by an LA and those that are on the Section 41 approved list of independent providers. In terms of the latter, under Section 41 of the Children and Families Act, the Secretary of State publishes a list of approved independent special institutions for the purposes of satisfying Section 38 (Preparation of EHC Plans) of the Act. Once on the Section 41 list an independent school must ‘have regard’ to the Code of Practice and will have specific duties relating to admissions, in line with maintained schools, academies, FE colleges and non-maintained special schools. In particular, if a Section 41 institution is named in an EHCP, then they must admit the pupil or young person. However, importantly, independent schools can only be included on the list with their consent.
“In respect of the disability aspects of the new Code, it is important to remember that legal obligations to disabled children and young people are still governed by the Equality Act 2010 (which applies to independent schools) and that the new Code is an SEN and Disability Code (the previous version was solely an SEN Code) and hence independent schools should sensibly take note of those parts of the new Code that refer to disabilities.”
A reader’s question: “A child with an eye gaze will take a week to demonstrate their ability to read with Key Stage 2 SATS, therefore a shorter and less stressful assessment’s required. This cannot be achieved and yet the child’s result/lack of result still counts towards the school’s overall progress and its league table position. Can this not be seen as discriminatory practice?”
“The short answer is no. From a legal point of view is this discriminatory? No. There are lots of anomalies around the way in which school data is calculated which, in the context of individual cases, can appear rather unfair. But it’s an entirely different matter to suggest that it creates a legal cause of action or that it’s discriminatory. I think that the key issue here is the difference between what is unfair and what is unlawful. But, they’re quite right, there are certainly some inconsistencies in the system. I think the idea (and I’m not defending the unfairness in any way) is that, for data collection to work, there has to be some agreement in advance as to how various situations will be treated. The idea is that it all comes out in the wash, even if there may be individual instances where it’s wrong and misrepresentative.
“But, when you’re looking at big data trends, which of course is what this is all about, those little wrinkles are not so significant. So, there are lots of anomalies I’m afraid and, yes, it may be unfair. However, that’s not to say it is a legal issue.”
A reader’s question: “We have a range of students on the autistic spectrum who we feel should be able to gain a GCSE. However, we feel that the new terminal exam qualification is inaccessible to them. Surely the exam boards and the Joint Council for Qualifications (JCQ) are legally required to facilitate the needs of all learners?”
“This is a really difficult situation isn’t it? There’s no question that children on the autistic spectrum won’t be the only ones to suffer here. There will be many other children, whether they have SEN or not actually, who may not be able to represent themselves to the maximum of their ability in the reversion to the terminal end of year exam format.
“Certainly the key here is to deal with the exam boards. The exam boards are the people who will have the obligation to consider whether there should be any adaptions, allowances or changes made to the way in which the exams are taken. I can’t pretend that I have any expertise around what the exam boards have done or are considering doing around this particular agenda. However, it would be perfectly reasonable to construct an argument stating that the exam board needs to make reasonable adjustments to create a level playing field. While it’s impossible to create an absolutely level playing field, it must be remembered that the point of exams is to objectively assess people’s ability.
“So, even though a child’s particular SEN disabilities may not actually impact on their cognitive performance, the heightened stress or anxiety caused by terminal exams might mean that that individual cannot give their best performance. Therefore, almost by definition, the final exam results would be unrepresentative and they would be severely disadvantaged in having to take that format.
“It is entirely fair and proper to engage with the exam board about this and task them with a response. To date, I haven’t had any personal experience of this conundrum. However, there is a stronger case for discrimination in this question than there was in the previous question – and that’s down to the Equality Act. The Act will apply to the exam boards and they will need to take it into account. In essence, the Act requires all people and organisations to make reasonable adjustments to make sure that someone with a disability isn’t at a substantial disadvantage.
“So, parents or schools with children on the autistic spectrum would need to say that the terminal exam process would create a substantial disadvantage for those students with autism. Then, in theory, there should be a responsibility to make reasonable adjustments to accommodate them. Of course, the key to the outcome would be the question of what is reasonable. This is a very complex legal area, because there are a host of different views on the definition of reasonable and that would need to be determined in a court of law. In this case, context and question, the terminal examination is clearly potentially unfair and this is an area where the law will engage.”
A reader’s question: “I am concerned about being sued for failure to educate as a result of reducing the SEN list in my school by 39%. To make the cut, my initial criteria included students on statements and those who had at least two standardised scores of 84 or below. However, on reflection, I realised that I had to include those students whose SEN need had prevented them from making progress in the classroom. I am therefore worried that my actions may have put me at risk of being sued.”
“Well, I can offer quite a lot of reassurance here. To unpack it, I would analyse it on two different levels:
- Academically speaking, what is the legal prospect of someone bringing a legal challenge to this?
- What are the practical realities of it actually happening?
“Academically, the legal prospect of someone bringing a legal challenge is slim. This is because ‘failure to educate’ claims are extremely difficult to bring and to succeed in. There are two reasons for this:
- First, someone needs to prove or show that there was a breach of a duty of care – which would be very difficult in this context.
- Secondly, they’ve got to prove causation – connecting the unlawful conduct with a resulting effect.
“So, what is a breach of a duty of care in the context of this question? Duty of care in the education field, as extensive case law explains, is a really difficult thing to prove. And the reason for that is because to counter a breach of duty-of-care argument, you simply need to demonstrate that a body of other SEND practitioners would have approached the matter in the same way. There doesn’t need to be a consensus on how something should have been dealt with or how something should have been handled. And, because there are usually a number of established bodies of practice in education – in contrast with, say, the medical field – conduct is often within the reasonable range of responses, is usually still in existence and that certainly applies around SEN. So, that’s the first test that someone would have to be able to pass, to demonstrate a clear breach of duty of care and that would be very difficult in this context.
“However, even if they actually managed to successfully clear the ‘duty of care’ hurdle, it wouldn’t mean anything if they couldn’t prove causation. In the case of causation, they have still got to be able to show that it actually did lead to some form of harm or loss. However, in education, it is pretty difficult to pinpoint certain things that happened in a child’s schooling and say that they had a clear causal connection with something else that happened in their life – say, the fact that they didn’t get a job.
“This is in sharp contrast to medicine, where causation is usually much easier to prove. We’re not dealing with someone who has had an operation (say they have had their appendix out) and during that operation it became infected. In this instance you can clearly see that the infection caused problems and that the infection is the reason why a particular person hasn’t been able work for three months. You don’t get that kind of scenario in education and that is why it is very difficult for the causation argument to be made out. In short, this means that, from a legal point of view, they’re very difficult to bring.
“The practical realities of the legal climate also mean that running these types of claims is extremely difficult. From a practical point of view, you can’t get legal aid and that means that they would have to employ ‘no win no fee’ lawyers. This sort of legal work requires a big upfront investment on the part of the claimant solicitors. They would need to get expert evidence and review all of the education records and these are simply not the sort of claims that ‘no win no fee’ solicitors like to deal with. It involves too much work for too little potential return or too high a risk on the potential return.
“Having been an education lawyer for the best part of 20 years, I’ve only ever seen a handful of claims coming forward in recent years and none of those have ever gone anywhere near a court. It’s been possible to deal with them and rebut them at a pre-action stage. So, I think that it’s an appropriately fair question and I wholly appreciate the anxiety that this individual is most probably experiencing. However, I must reassure this reader that they are very unlikely to be sued.
“And, course, a final point would be that it wouldn’t be a claim against that individual, it would actually be against the reader’s employer – who would hopefully have insurance to cover it in any event. So, in the extremely unlikely event that it even got to this stage it wouldn’t be a personal scenario. So, hopefully, this reader will now sleep soundly at night.”
What is your main message to SEND practitioners as they anticipate the year ahead?
“Seize the opportunity. We’re not going to get another set of fundamental SEND reform anytime soon. This is the first time that the SEND system has been fundamentally overhauled for the best part of 30 years, so it’s important to grasp these changes with both hands. Yes, it is going to be challenging getting to grips with some of the new framework, it is short on detail in some areas and we are going to need case law decisions to clarify and to tighten up the advice that we can give in this sector. But, as I said at the start, this legislation has always been about engineering cultural change and we’ve got to be patient about that. Cultural change doesn’t happen overnight; it doesn’t happen in the first year of legislation; not even in the second year; indeed I would suggest that it can take up to five years.
“When you read the legislation and the Code, you may well think: ‘gosh this is a brave new world; how do I orientate myself in it, where are my risks, am I going to get challenged, am I going to do this right?’ However, I suggest that SEND practitioners need to really keep their eye on the horizon all the time to ensure that they move with the currents of long-term cultural change – that’s what really matters. Of course, there will be mistakes along the way that everybody will make – whether they’re SEND practitioners, LAs, commissioners, or lawyers. We’re all going to have to learn together about how the new system works in practice and there will be questions that need answering where we don’t even know the questions yet. That’s just the reality of what’s been brought forward.
“As a lawyer it’s easy to highlight the weaknesses and vulnerable spots in the legislation and the risks and the legal pitfalls that we have discussed here. However, if SEND practitioners get hung up on the pitfalls and negatives, rather than seizing the opportunity to try and push through cultural change, then we probably won’t see the level of change that I think most would acknowledge that we should.”