Educated risks?

Changes to the appeals procedure for children with special needs are likely to render the system even more complex, says Richard Bird.

Special educational needs (SEN) is becoming more confused and more litigious. As it does so, it is becoming more threatening to individual members.

In the 1980s, a government commission led by Mary Warnock coined the definition 'special educational needs'.

About 20 per cent of pupils in schools require some additional help at some time during their school careers.

To ensure that young people got that help, Warnock recommended there should be a statement of special educational needs, which there would be a statutory duty to meet. The related legislation was consolidated in the 1996 Education Act.

This act remains in force. Local authorities are still under a duty, if they have issued a statement, to provide what is required in the statement, to review that statement, and to make arrangements for transition for pupils with statements.

The act also, however, consolidated the legal presumption that children would be educated in mainstream education unless, broadly speaking, there were grounds such as expense or risk of harm to the education of other children.

When concern grew that statementing had become an industry, the then secretary of state issued a Code of Practice to discourage it and established the School Action and School Action Plus regime we now have. But this did not change the basic law and left legal loose ends.

The uncertainty was compounded by Local Management of Schools. The delegation of funds enabled local authorities, some thought, to pass the responsibility on to schools. The courts have held otherwise - another source of confusion.

Then came the Disability Discrimination Act and the subsequent Equality Act.

SEN and disability can overlap (for example, in severe dyslexia or behavioural disabilities) but don't always. The lack of clarity creates another potential legal trap.

Law of negligence

The final piece is the activity of the courts. Working from the law of negligence, the courts concluded that educational psychologists and, subsequently, heads, could be sued in person for negligence for failing to identify disabilities and educational needs subject to the Bolam test (that is, the complainant has to prove that the actions of the head were outside 'reasonable professional practice' at the time).

The courts have, though, made the time limits difficult to meet by their interpretation of "the moment at which a complainant can be considered to know that a wrong has been done".

For parents the present position is unclear and unsatisfactory. Without formal assessment by the local authority they do not necessarily know what assessment has been made. Without a statement they do not know what professional opinion believes their children need. Without a review they do not know whether the provision has been made or whether it has had an effect.

It is not surprising that there is a groundswell of feeling building up. At the same time, parents have had their hopes raised by the Disability Discrimination Act. Only 7 per cent of children in the school system are diagnosed as having disabilities, compared with 20 per cent in the population as a whole. This suggests that significant numbers of children are being supported as if they had special needs, rather than a disability.

This is likely to be challenged, even though the courts have held that the two pieces of legislation are complementary and sometimes expressed regret that parents have not followed the statementing route.

Snares and pitfalls

Schools, theoretically at least, have more funds to spend at an earlier stage of intervention and they cannot be held to account if there is no statement of need. However, an increasing number of cases are ending in the Special Educational Needs and Disability Tribunal (SENDIST). This tribunal is due (at the time of writing) to be subsumed into the new first tier tribunal for Health, Education and Social Care from April 2009.

It is anyone's guess whether the new tribunal, which must inevitably dilute the SEN expertise of SENDIST, will be an improvement or not. However, it will be able to award costs, so an approach to it may be more attractive for complainants.

Schools should be wary but should not panic. It will be even more crucial that they have their equality scheme in place so that they can defend discrimination claims, and that they seek professional advice as soon as they identify the possibility that a child is suffering from a disability. But a professional and methodical approach will, generally, avoid the snares and pitfalls.