With the new school year fast approaching, Brian Moss considers the legal rights of children with special educational needs
Back to school. Those dreaded words, soon to be reality for children across the province. The summer of long, careless days is drawing to an end, and it will soon be time for new shoes, uniforms, pencil cases and homework.
It is often said that school days are the best days of our lives, but in a modern labour market which places ever an increasing emphasis on academic results, few could doubt the importance of making the very most of your education.
For children with special educational needs, they often require additional resources and assistance not commonly provided by schools, to ensure that they can obtain the benefit of their education and achieve their potential. It is important that these children are not deprived of necessary resources, so that a level playing field is maintained between them and other children their age, who do not have such additional needs.
Several years of UK central government austerity has resulted in cutbacks to all Northern Ireland government departments. In consequence, it is well known that the Education Authority, who usually fund the additional resources which children with special educational needs require for their education, faces huge budgetary pressures. This is a matter of very serious concern for all who are involved in our education system.
For many children with special educational needs, it must therefore be of considerable reassurance to them and their parents that the educational provision which needs to be made for them is protected by law, if it is written into a statement of special educational needs. For such children, the Education Authority is under a legal duty to ensure that the stated educational provision is made for that child (article 16(5) of the Education (Northern Ireland) Order 1996). If this educational provision is not being provided by the EA, then it would in most circumstances be open to the child (acting by their parents or guardian) to challenge the lack of (or failure to make) provision through the courts, on an urgent basis, by seeking a judicial review. This right of legal action can equally be open to children with special educational needs who do not have statements, where certain provision has been curtailed or removed. However, the legal duties of the Education Authority towards such children are not as clear cut as they are towards children with statements.
For children with special educational needs without the legal protection of a statement of special educational needs, it is open to their parents to request the Education Authority to assess their child, normally at any time (see article 20 of the 1996 Order). If dissatisfied with the assessment of a child’s special educational needs, or with a decision not to assess the child, or with the content of any statement issued (including the school placement chosen by the EA) then parents can appeal to the Special Educational Needs and Disability Tribunal, within a strict 2 month time limit.
If you or your child are affected by such an issue, legal advice is available. Legal aid can also be available, particularly where the interests of a child are at stake, and especially if court proceedings are required. Please do not hesitate to contact our education law experts Emily Paisley or Brian Moss at any time for advice - or why not come into see Brian or Emily at our free education law clinic which we are running at our Belfast office between 10am and 1pm on Saturday 29th September 2018.
Brian Moss is a solicitor in Worthingtons Solicitors, Belfast who specialises in education law. For legal advice please telephone 028 9043 4015 or email firstname.lastname@example.org