In our experience, many parents are put off from asking what their children and young people are legally entitled to based on inaccurate information they are given by others. Sometimes this information comes from professionals who have little or no understanding of the SEND legal framework; other times it comes from local authorities through their implementation of local policy. It is important to remember that policy is not law and can never override the law.
We’ve listed the most common myths and misconceptions parents are told. Trust your instinct as a parent – if it doesn’t sound right it’s probably not right and you should seek advice.
“A child or young person without a diagnosis is not considered to have SEN” Or: ”A child or young person who is performing well academically cannot be considered to have SEN”
A child or young person does not require a diagnosis in order to have SEN. The legal test, which is contained in the Children and Families Act 2014, does not refer to diagnosis or condition. Put simply, a child or young person has SEN if they have a greater difficulty in learning than their peers or a disability which requires special educational provision to be made for them. Equally, academic attainment is not the sole consideration. Some children and young people for example, those on the autistic spectrum, have SEN but can perform well academically.
“Unless the school has carried out at least 3 terms of assess, plan do and review and can show my child needs an EHC plan the local authority won’t carry out an EHC needs assessment”.
The legal threshold for when in law the local authority must carry out an EHC needs assessment, which is contained in the Children and Families Act 2014, is relatively low. A parent or young person only needs to demonstrate that the child or young person has or may have SEN and may require special educational provision to be made for them by way of an EHC plan. There is no requirement for a number of terms of ‘assess, plan, do and review’ to be carried out. Equally there is no need to show at this early stage an EHC plan is needed – that is the point of the EHC needs assessment!
“Local authorities do not have to detail the special educational provision a child or young person requires in Section F of the EHC plan. They can simply refer to the funding or ‘banding’ which is available”.
In law local authorities are required to ‘specify’ the special educational provision the child or young person requires in Section F of the EHC plan. This means they must detail the ‘who, what, when and for how long’ details of each and every provision. This is very important as children and young people are legally entitled to receive the special educational provision detailed in Section F and local authorities are under a strict legal duty to ensure it is provided. Unfortunately, if provision is vaguely worded with phrases such as ‘access to’, ‘regular’ or ‘may benefit from’ it may not be possible to enforce it.