A Guide to Special Education Needs and the Law in Northern Ireland

25 January 2017

The following guide sets out key information about Special Education Needs in Northern Ireland together with guidance on the legal rights and expectations of parents who feel their children’s needs are not being met at School. It’s designed to help parents find out more about definitions of special education needs, your legal rights and entitlements and legal case examples from Northern Ireland – written by Education solicitor Brian Moss.

Special Educational Needs in Northern Ireland  – Explained

Every child is unique and has different skills and ways of learning. How a school responds to meet each child’s educational needs will have an extremely important impact on their learning and skills development.

For children with learning difficulties, the responsibilities of the school take on a more important dimension. If a child has difficulty learning then they may require special assistance in school to help them to reach their full potential.

Special Educational Needs is defined as: “A child has 'special educational needs' if they have a learning difficulty or disability that means they have more difficulty in learning than most children of their own age.” Article 3 of the Education (Northern Ireland) Order 1996

One of the undoubtedly positive developments in local education is the duty now placed on schools to develop and implement provisions to help children with special educational needs. This is referred to as ‘special education provision’.

Parents who have a child with special educational needs sometimes encounter problems and challenges when ensuring their child receives support they are entitled to. Examples include:

·       A parent being unhappy with the action that is being proposed or not being taken by a school or the Educational Authority.

·       Requesting a Statutory Assessment for a child

·       Taking an appeal to the Special Educational Needs and Disability Tribunal (SENDIST)

  

Key Steps in the SEN Process for Parents

Speaking with the Special Education Needs Coordinator

In the first instance, parents who are concerned with their child’s progress should first speak with the child’s teacher or the school Special Education Needs Coordinator (SENCO).

Every school will have a SENCO available to assist in these situations. Following this discussion, the school may organise for the child to receive extra support, such as additional reading or tuition.

Further action may be taken in a small number of cases. This usually happens if concerns remain about a particular child’s progress in school, e.g. if the child requires help and assistance which is not commonly available in schools or simply not within the school’s budget.

 The Role of the Education Authority

This is where the Education Authority comes in. It is the Authority’s role to consider such children for assessment and to decide whether to make direct provision for their educational needs. If the Authority decides to proceed, the child’s educational needs - and the provision required in order to meet them - are set out in a legally binding document called a Statement of Special Educational Needs.

Parents should be aware that it is their legal right to ask the Authority to consider their child for assessment and to further ascertain whether they require a statement to be made for them. This right arises under Article 20 of the Education (Northern Ireland) Order 1996.

 

The Five Stages in the SEN Process

Under the Department of Education for Northern Ireland’s Code of Practice, on the Identification and Assessment of Pupils with Special Educational Needs, there are usually 5 stages to the process which leads to a statement being made for a particular child:

Stage 1               

The child’s teacher identifies the special educational needs (SEN) and specific information about the needs of the child is collated. Following this, the child may be added to the school’s SEN register.

Stage 2          

The SENCO may then collect further details from other relevant parties - such as parents, the child’s GP and teachers - to gain better insight into the child’s needs. From this information, an Individual Education Plan (IEP) is adopted to address the child’s SEN. This IEP should then be kept under review.

Stage 3               

Help from professionals outside the school environment is sought at this stage; for example, an educational psychologist or speech therapist will be brought in by the school.

Stage 4               

If the needs of the child are significant and complex and/or have not been remedied despite the measures adopted by their school, the Education Authority can consider the child for an in-depth ‘statutory assessment’ of their SEN. This will be led by an educational psychologist and will consider input from a variety of disciplines. A ‘statutory assessment’ can be requested by a range of interested persons/agencies such as the parents, school, GP, or Health and Social Care Trust. As above, under Article 20 of the 1996 Order, parents can request that their child be considered for this statutory assessment at any time.

Stage 5               

The child is issued with a statement which will document the child’s needs and what measures are going to be put in place to support them in their education. Once a provision is included in the statement, it must be met by the Education Authority. The more definite and unambiguous the statement, the less scope there can be for any restriction being placed on help or services. Statements are reviewed annually by the Education Authority in accordance with their statutory duty.

The SEN process can be daunting for parents who have no previous experience of it. This is especially so for children who require statements to be made for them by the Education Authority. The process is not an easy one and there are many hurdles involved. However, once every stage has been completed, the child should have a statement in place which meets their needs.

Making an Appeal to the Special Educational Needs and Disability Tribunal (SENDIST)

If this is not the case then parents can appeal (in most circumstances) to the Special Educational Needs and Disability Tribunal (SENDIST). This is a process that we are highly experienced in dealing with at Worthingtons Solicitors, and we are always happy to offer professional advice on dealing with SEN issues and appeals to the SENDIST.

Parents can also make a claim to the SENDIST, where they believe that an educational body has discriminated against their child, in the course of their education. This can arise where a child has been treated less favourably than another child at school, for a reason relating to their disability (learning difficulty), or the school concerned has failed to make (or is failing to make) reasonable adjustments for a child with learning difficulties. The Autism Act (Northern Ireland) 2011, extended the definition of disability in the Disability Discrimination Act 1995, to include autistic spectrum disorder conditions. 

 

How We Have Helped Parents with SEN Related Disputes

Parents with children who have special education needs can find parts of the process daunting and it is common for them to require help. Assistance with the SEN process can be provided by groups including The Special Educational Needs Advice Centre in Belfast (details below).

However, some parents require legal support when they are in dispute with a school or an education authority. At Worthingtons Solicitors we have very strong experience in successfully representing parents in SEN related legal cases. Here are some of the recent cases we’ve fought on behalf of parents:

(1)         In 2013, we pursued a SENDIST appeal on behalf of a child who had been referred by their school to the Education Authority, to be considered for statutory assessment for a statement, but the Education Authority had refused to do so. After we issued a detailed notice of appeal, the Education Authority backed down and agreed to carry out the assessment

(2)         In late 2015 / early 2016, we took a SENDIST appeal for a child where their statement specified that a child required a classroom assistant for ‘significant parts’ of the school day, but did not specify the number of hours of classroom assistance that would be required. We issued an appeal on behalf of the child’s parents and in the course of it, drew the Education Authority attention to the remarks of Lady Justice Hale in the case of IPSEA -v- Secretary of State for Education and Skills [2003]. The Education Authority conceded this appeal and issued an amended statement, setting out the number of hours of classroom assistance that the child would receive

(3)         In the summer last year (2016), we successfully pursued a SENDIST claim for on behalf of a young primary school child, who suffers from Asperger’s syndrome, an Autism Spectrum Disorder (ASD), and who is the subject of a Statement of Special Educational Needs.  The young girl was excluded from the class residential away trip as a result of her disability, and was then suspended on a number of occasions as a result of behaviour which arose due to her disability, and as a result of the school’s failure to put in place adequate coping strategies.

Worthingtons Solicitors has also significant experience in leading judicial reviews on behalf of children with special educational needs, in a range of different education-related scenarios, including:

XY (a minor’s) Application for Judicial Review [2015] NIQB 75

We acted on behalf of the applicant in this case, which concerned a challenge against the Education Minister’s decision to close Avoniel Primary School in East Belfast. The case attracted considerable public and media attention, and the Attorney General stepped into the case to represent the Minister.

The Northern Ireland Commissioner for Children and Young People have written an article concerning this case (see http://www.niccy.org/media/1651/niccy-ezine-xys-application-2015-niqb-75-oct-15.pdf ), summarising some of the important legal points which the case raised and highlighting the aspects which are of interest to lawyers acting on behalf of children and young people in Northern Ireland. (see https://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2015/[2015]%20NIQB%2075/j_j_STE9738Final-PUBLISH.htm

Suspension, Exclusion and Expulsion Cases

Our Education team acted for a number of primary and secondary school pupils, who have challenged decisions to suspend or exclude them from school. We have also advised parents whose children have been facing potential expulsion from school, about their rights of appeal in these situations. We have achieved a number of positive outcomes on behalf these pupils, which has in some cases resulted in them returning to their school and/or having the impugned suspensions expunged from their school records.  

 

 Advice on Pursuing Legal Routes  

We strongly recommend seeking legal advice quickly in relation to SEN disputes as there are various deadlines imposed, including:

·       A two month deadline to appeal to the SENDIST Tribunal

·       6 month deadline for a discrimination claim

·       A judicial review must be brought before the court promptly once the grounds for seeking it arise.

 

To Speak to a Trusted Professional in Education Law

If you or your child are affected by the issues outlined above, it is best to seek legal advice promptly.

Please do not hesitate to contact me for a confidential free half-hour face-to-face consultation at our offices.

 

 

 

 

 

 

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