Legal Information Centre

20 November 2008 by Jennifer Kelly


Increasingly parents are calling on education solicitors to ensure that their child is treated fairly. However, parents must understand what they themselves can do.

Every parent wants the best for their children and this includes their education. However, problems arise when you  feel your child is being denied their right to an education. This could be because their special education needs are not being met, because they have been discriminated against, because they have been denied admission to a school or nursery or because they have been inappropriately excluded.

Fortunately there are procedures in place to ensure that education is fairly provided: decisions can be appealed; special needs can be investigated. However, to get the best for your child in their education it is down to you as a parent to guarantee that these steps are taken.

If your child has learning difficulties or a disability that makes it harder for them to learn then they are considered to have special educational needs (SEN). However, just because they are making slower progress or being offered different support by their teacher it does not mean that they will qualify.

If you feel that your child does have special educational needs, your first port of call should be their school. However you may feel there is only so much support the school can offer. If you wish for further provisions to be made then you can request that your Local Education Authority carry out a statutory assessment of SEN. This is only ever required for 2% of the school population.

Once the LEA has carried out the assessment they will decide whether it is necessary to issue a statement of SEN for your child. The statement is a legal document that sets out a child’s special educational needs and the arrangements of how to meet them. You will see a draft of this in a ‘proposed statement’ which you will have time to give feedback on.

If the LEA refuses to carry out an assessment or issue a statement or you do not agree with the content of your child’s statement you can bring your case before the tribunal SENDIST for them to decide. An appeal against the content of a SEN statement could involve a request for changing schools or educating from home.

In 2004 about 247,600 children at school had a statement of SEN. Around 60% of these attended mainstream state schools and 3% attended independent schools. The rest attended special needs schools or were home educated.

Disability discrimination claims are also sent to SENDIST. However, the tribunal only has the power to order action to put right the effect of discrimination. This could include additional training for school staff or extra tuitions to make up for anything missed out on. The tribunal cannot award financial compensation.

Disability discrimination claims could relate to admission to an independent school, exclusion from an independent school, suspension from any type of school or the education they are receiving at their school. In the academic year of 2007/08 SENDIST received 137 disability discrimination claims.

SENDIST also offers a mediation service to help resolve dispute quicker and more informally.Permanent exclusion should only be used as a last resort when the school has exhausted all other options. Your child should only be excluded if they have broken the school’s rules and if remaining at the school would harm the education or welfare of themselves or others.

If your child is permanently excluded from school then you are entitled to meet the with the school’s governing body to appeal against the decision. This should take place within 15 days of the exclusion. You are entitled to have a legal representative present.

If the governors go ahead with the exclusion you can appeal the decision at an independent panel arranged by the local authority. You have 15 days following the governor’s decision to respond.

The panel can decide to reinstate your child, uphold the governor’s decision or agree that reinstatement is justified but that it is no longer practical due to the particular circumstances. Appealing an admission decision

If your child has been refused admission to a school or nursery you can take the decision to an appeal panel. If your child has been permanently excluded twice you may not be appeal.

For most appeals the panel will check that the admission rules were followed appropriately and see if the school could take further students. They will also weigh up the problems faced by your child should they not go to the school and the problems faced by the school if they take your child.

You are allowed a legal representative at the hearing. However, be aware that only about a third of parents win their appeal.

Helpful websites

Special Educational Needs and Disability Tribunal

Advisory Centre for Education

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