Northern Ireland Education and Library Boards examined on their education provision for pupils with special needs. Brian Moss of Worthingtons Solicitors Belfast explains...
'Must Do Better': Education & Library Boards examined on their Education Provision for Students with Special Needs.
The school report. We all remember its arrival. Parents scouring over our school performance for the year - anxious moments where the report concluded with the dreaded words: ‘must do better’. Close scrutiny of all homework, the inevitable consequence. For Education and Library Boards in Northern Ireland, a similar admonition appears to have been directed in the recent case of Re L’s application  NIQB 38, which involved a 9 year old boy with special educational needs, including dyslexia.
In March 2010, when L was in P4, he was referred by his school principal to the educational psychology services of his local Education & Library Board, on the basis that he was experiencing difficulty with his literacy and had poor communication skills. As a result, L was assessed by an educational psychologist. Having carried out a number of tests, the psychologist recommended a referral to the Board’s outreach support service for pupils with specific literacy difficulties, and in the interim recommended that L should continue to receive a high level of support for literacy and numeracy within the school’s own special needs system. The Board consequently placed L on a waiting list to receive direct literacy support and L’s mother formed the view that L would be given a place at a local reading support unit in the following September. This view was supported by confirmation which L’s mother felt she had received from his school’s Special Educational Needs Co-ordinator, and further supported by L’s annual school report, which stated that he was to receive further educational support when in P5, to include part-time reading unit provision.
However, in July 2011, L’s mother received a letter from the Board stating that new arrangements had been made for the school year ahead, and it was proposed that a teacher from the Board’s Literacy Support Service would visit the school in order to assess L’s needs and the teaching strategies which would need to be adopted. For L’s mother, this fell short of the place in the reading unit which she had anticipated. She therefore sought legal advice, and her solicitor wrote to the Board, expressing the view that by their actions, the Board had conferred upon L and his mother a legitimate expectation of direct teaching support. The Board replied stating that “due to the high level of referrals the Board has had to apply criteria to access direct teaching”. The Board set out the criteria and advised that L would be a priority for direct teaching support in the next school year, and explained that whilst the situation was regrettable, it had a limited budget for the provision of such support. L’s mother was dissatisfied and eventually sought a Judicial Review.
In the course of the Judicial Review proceedings, L’s mother referred to a Department of Education strategy document entitled ‘Count, Read, Succeed’, which identified that where a pupil had reached ‘Stage 3’ assessment (which L had reached, having been assessed by an educational psychologist), their needs should be met in line with such an assessment. L’s mother also referred to Department of Education guidance to the Northern Ireland Assembly Education Committee, which poignantly stated:
“Research shows … that where we provide intervention at the age of six to seven, there is an 80% success rate for children with those difficulties. If you leave that intervention until the age of 10, there is only a 20% chance of those children becoming successful.”
On a personal level, L’s mother described in her evidence to the Court how L’s learning difficulties affected him and their family life. She explained that, in particular, L was becoming very distressed and aggressive when attempting his homework and she found that she often had to return his school books to his school bag, with homework not completed. L’s mother further explained how she felt L didn’t want to go to school and described how he would try to do everything he could stall and delay the journey to school each morning, which was clearly enormously distressing for her. She said that the new arrangements which were being made by the Board, i.e. not to provide direct teaching support, meant that L’s special educational provision for the forthcoming school year would in fact be less than it was in the previous school year. Clearly, this did not make any sense to her after the school and the Board had previously escalated the level of assessment (to stage 3) and had made a referral to an educational psychologist.
L contended (acting by his mother in the proceedings) that the Board was acting unlawfully in failing to make proper provision for his educational needs, by failing to provide direct teaching support to address his literacy difficulties.
In response, the Board’s legal team denied that the Board had any statutory duty to make provision for L’s special needs since he was only at stage 3 of assessment regime.
Delivering Judgment in the case, Mr Justice Treacy ultimately determined the case in the favour of L, and made a declaration that the Board had acted unlawfully. In doing so, the Judge offered a comprehensive overview of the statutory scheme underpinning the assessment of children presenting with special educational needs, and noted a staged approach, whereby such needs would be met by the Board/relevant school (as the case may be) in accordance with the child’s level of need. Thus, the Judge noted that children with special educational needs are categorised as being at ‘stages’, ie. stages 1-5, in accordance with the Education & Library Boards Code of Practice on the Identification and Assessment of Special Educational Needs (the Code). It would appear that the Code was introduced by the Board as a means of meeting their statutory obligations under the Education & Libraries (Northern Ireland) Order 1996 (the 1996 Order). At stage 1 of the assessment process, it is the school which is responsible for initial action in identifying and registering a child’s special educational needs, whilst at the furthest range of the spectrum, stage 5, a child will be subject to a statement of special education needs, in which a child’s educational needs and the provision which will be made in order to meet such needs, must be clearly set out.
In this particular case, the Judge noted that L had reached stage 3 of the assessment process, which required a collaborative approach to be taken by both the Board and the School in assessing and meeting L’s educational needs. The Judge noted that, regardless of the nature of the Board’s involvement at this stage, the Board had an overlying statutory duty which governed the manner in which it exercised all of its powers, pursuant to Article 13 of the 1996 Order. This Article essentially provides that a Board must identify those children within its area who have special education needs, and for whom they must determine the provision which will be made in order to meet such needs. The Judge noted that L, being at stage 3 of the special educational needs system, was at a point where the Board’s power to intervene and make provision for him overlapped with its duty to him under Article 13 of the 1996 Order. The Judge noted that L’s complaint in this case was that the Board had failed or refused to use its power to provide for him in a timeous manner, when time was clearly of the essence in meeting his educational needs in the particular circumstances. It was on this basis, the Judge said, that L’s arguments went to whether the Board was in breach of Article 13 of the 1996 Order.
The Judge commented that as L was currently at stage 3 of the assessment process, the next level for him would be statutory assessment at stage 4. The Judge concluded that in all such cases, the necessary stage 3 intervention must be delivered and its effect monitored, most importantly so that evidence for the child’s candidature for statutory assessment could emerge. Therefore, the Judge made it clear that if a Board did not use its powers to provide specialist support at stage 3 of the process, the net effect would be that no evidence would emerge to indicate whether or not a child had been ‘insufficiently remedied’ at that stage, and whether such a child would therefore require the first level of statutory assessment under stage 4.
The Judge remarked that such a deficit of evidence, caused by a failure of a Board to properly provide for a child’s needs, would impede the identification process and could therefore amount very readily to a breach of Article 13, as the Board would have inhibited itself from properly identifying those children with special educational needs within its area.
The Judge noted the Board’s arguments, in standing by its decision in L’s case, that they were confined by their resources; that they had many children to cater for who were in a similar position; and that it would be unfair to prioritise one learning disability over another. The Judge sympathised with the Board’s dilemma in this regard, but stated that he could not agree that no learning disability could ever be prioritised. The Judge considered that a child’s learning disability would require to be addressed with priority by a Board where a failure to act would make the difficulty more severe or more entrenched than would otherwise be the case if they were to act more promptly. Where this was the case, the Judge specifically said that the failure by a Board to use its power of intervention:
“…actively contributes to the seriousness of the learning difficulty and increases the likelihood that [the child] will eventually require statutory assessment. Such a result is inconsistent with a [Special Educational Needs] system which continually promotes action designed to minimise or eradicate learning difficulties, and which reserves statutory assessment for the small minority of children whose learning difficulties have failed to respond to every intervention available in the school based stages.”
Therefore, the Judge found against the Board and determined that their statutory obligations and the Special Educational Needs system they operated demanded that they prioritise demands for specialist support for children at stage 3 of the assessment process. In applying this principle to L’s case, the Judge reached a number of conclusions, amongst others that:
 In exercising their powers Boards are entitled to have appropriate regard to the resources they have available to meet non statutory obligations and therefore to prioritise their interventions in a fair and appropriate way;
 The rationale and objectives of the Special Educational Needs system require Boards to use their powers to make non-statutory interventions within a reasonable time i.e. a period of time consistent with the objectives of the system itself;
 What is a ‘reasonable time’ is context specific and will depend on all the facts of the individual case. In considering what is ‘reasonable’ the Board should have regard to evidence about the effects of delayed intervention on the condition and on the prospects of success of the intervention when made;
 In this case, evidence from the Department of Education indicated that L was fast approaching the end of the time frame for optimal success of intensive intervention, and consequently the intervention required must be delivered by the Board without any further delay;
 The intervention proposed for L by the Board in this case under its new criteria was not sufficiently intensive to satisfy the requirements of the Code. The intervention to be delivered to L should be direct literacy teaching from a literacy specialist as indicated by the Educational psychologist. In summary, the Court was of the view that in these circumstances, the Board ‘must do better’ in order to answer its onerous statutory obligations under the 1996 Order.
If you or your child are affected by a School or Education Board decision or lack of provision, it may be possible to mount a legal challenge by way of seeking a judicial review. Legal Aid funding is regularly available in such cases, since it is the income and capital of the child which will be relevant. It is essential that urgent legal advice is sought in these types of cases, given that strict time limits apply.