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Statements - Part 3

Issues of importance and the law

This is part of a much longer document for an MA module on SEN which can be found at http://teach.newport.ac.uk/sen/sen200607/MAsenLaw.html

Therapies

Speech and Language therapy is, in almost every case, educational: R v Lancashire ex parte M [1989] 2 FLR 279. A must read case!

The Tribunal has found both Occupational Therapy and Physiotherapy to be educational in certain circumstances, although not in the case of B v Isle of Wight [1997] ELR 279, notwithstanding that it was felt by the judge that both would have educational benefits. In addition, the Tribunal has also found hydrotherapy and music therapy to be educational on the evidence in particular cases.

However, nursing care for a child who needed permanent nursing supervision for safety at school is NOT educational and so is not to be included in Part 3: City of Bradford v A [1997] ELR 417.

Specificity The legal position

Section 324 (3)(b) Education Act 1996 requires a statement of special educational needs to “specify the special educational provision to be made for the purposes of meeting … needs”.

Regulation 16 and Schedule 2 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 requires provision to be specified in terms of “any appropriate facilities, equipment, staffing arrangements and curriculum …”

The 2001 Code of Practice makes it clear in Paragraphs 8:36 and 8:37 that the special educational provision in the statement MUST be specified clearly and in detail and normally quantified.

The case law

The current leading case is L v Clarke and Somerset County Council [1998] ELR 129. In his decision, Laws J said (at para 137B) that “the real question … in relation to any … statement is whether it is so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case. Very often a specification of hours per week will no doubt be necessary and there will be a need for that to be done.”

However, in the true judicial way of not making an absolute decision, he also said (at para 136H) that “there will be some cases where flexibility should be retained”.

It has been that statement which has been explored through the courts in recent years. In E v Rotherham MBC [2002] ELR 266, the High Court held that the words “any change in the level [of] support will require a formal discussion between the LEA, the NHS Trust and one or both of [the child’s] parents …” was not specific if there was to be a review. As a six-monthly review was built into the statement, the level of provision after that review would be uncertain.The court also made the point that if the level of provision was to be amended as a result of discussion, as the clause was drafted, there was no need for there to be an amendment to the statement. That, consequently, deprived the parent of any right of appeal if she disagreed with the revised level of provision.When the Toolkit was published it was noted by IPSEA that the language in section 7 (which deals with writing statements) was not the same as the Code and reflected the position in the draft Code. A legal challenge was mounted against the Secretary of State by way of judicial review.Mr Justice Newman heard the application for permission on 26 March 2002 (reported as R (ota) IPSEA Ltd v S of S Education and Skills [2003] ELR 393).

IPSEA appealed that decision and the Court of Appeal gave judgment on 20 January 2003. In the judgment Lady Justice Hale said:

“If Parliament had meant specification to mean numerical quantification no doubt it would have said so…. However, the statement clearly has to spell out the provision appropriate to meet the particular needs of, and objectives identified for, the individual child. It must be addressed to the needs of the child rather than to the needs of the system.” (Paragraph 14)“It follows that any flexibility built into the statement must be there to meet the needs of the child and not the needs of the system. But the needs of the child cannot be seen in a vacuum. They may fluctuate for a wide variety of reasons.” (Paragraph 15)“The Code requires precision as the general rule, but provides for flexibility where this will best meet the needs of the child…. It remains the case that vague statements which do not specify provision appropriate to the identified special needs of the child will not comply with the law.” At the same time the Court of Appeal heard the appeal in the case of E v Newham London Borough Council and the Special Educational Needs Tribunal [2003] ELR 86.In this case, the Tribunal decided that the pupil should attend a special school as proposed by the LEA rather than a mainstream Catholic primary school. As therapeutic input on a daily basis was integrated in the school day the Tribunal decided that it did not consider it to be appropriate to specify the number of hours of therapy per week and, in any event, there was no evidence before it as to what precise level of provision would be required. In the circumstances, the Tribunal concluded that the level required should be determined by the specialists concerned following an assessment once he arrived at the school.The Court of Appeal agreed. The judges who heard this case were the same three who heard the IPSEA case and they gave judgment on the same day. They regarded this case as being a good example of the flexibility mentioned above.

(c) Blanket policies

The DfES circulated to all Chief Education Officers a letter dated 31 July 2003 (ref LEA/0283/2003) concerning “blanket policies in specifying and quantifying provision in children’s statements of special educational needs”. The document can be found at www.teachernet.gov.uk/LEAmailing

It appears that there have been a number of complaints that some authorities are operating, or planning to operate blanket policies of never quantifying SEN provision in statements.

As indicated above, many cases appear to relate to the delegation of funding. Some authorities have or are intending to specify the Part 3 provision by reference to a particular band of funding from their local system of calculating funding or a sum of money. An example would be “the school will receive Band 3 funding to make the appropriate provision”. Other authorities have decided to leave it to the school in terms of options. For example, allocating a sum of money but stating that it is equal to a particular number of hours of support from a support assistant or a pro-rata amount for a Support Teacher (my experience is that one hour of teacher time equals two hours of LSA time) or some equipment. In these cases there is no attempt to specify the provision to meet an individual’s needs.

The letter to the LEAs makes it clear that blanket policies are not permitted. Taken with the Court of Appeal’s decision in the IPSEA case it is probable that the arguments are now over. The principle should be clear: flexibility is only permissible if it is to meet the needs of an individual pupil.

E v Flintshire CC and SENT [2002] ELR 378

It may be bureaucratic to set out every detail of the provision as long as it was adequately specified and well understood by everybody. In this case Part 3 provided for one hour of specialist support from the LEA’s learning support service with the teacher to be appropriately qualified for such support work, the input was to be a structured apprenticeship and there was to be a variety of other specified support and learning methodologies.

W and another v Bedfordshire County Council, Lawtel, 12 March 2004

Where a draft statement of SEN referred to a “package of care” that package had to be specified an it was insufficient to state merely that such needs would be provided by an authority’s social services department.

(d) What should parents be expected to do?

DM and KC v Essex County Council and SENDIST [2003] ELR 419

Parents are not required to make special educational provision for their own child and so the Essex ‘Good Beginnings’ programme was unlawful. This programme is an alternative to the Lovaas programme and funded 10 hours a week of professional input, expecting the child’s parents to carry on the input outside the 10 hours. There is nothing to stop the parents willingly providing special educational provision but they cannot be compelled to do so.

R (ota KW) v SENDIST and Rochdale Metropolitan Borough Council, Lawtel, 22 July 2003

A tribunal’s decision to place a disabled child in a day school with professional support out of school hours did not impose on the child’s parents an obligation to meet part or all of the LEA’s statutory duty to provide for her special educational provision.

The questions to be asked in these cases are:

does the statement either directly or indirectly allow the LEA to escape its statutory duty?

When the contribution the parents were to make has been identified, was this, in law, special educational provision? That is, whether it directly related to the child’s learning difficulties?

Once the statement sets out the special educational provision the child should receive, the local authority has an absolute duty to provide it (s324(5)(a)(i) EA). If, for example, speech and language therapy is written into Part 3, it is the duty of the authority to provide it, even if in practice the health service provides it. If, for whatever reason, the health authority does not or cannot provide it, the local authority is not absolved of its obligations.

Can the school provide the special educational provision set out in the statement? This is often the determining factor between the different schools proposed for Part 4.