The IEF are an independent charity which works to support the growth and development of integrated education in Northern Ireland.

The Strategy in question was published by the Department on 26 April 2023. The Department was legally required to publish the Strategy by virtue of the Integrated Education Act (Northern Ireland) 2022 (“the 2022 Act”). The IEF’s challenge focused on the Strategy’s apparent non-conformance with section 9(2)(e)(ii) and (iii) of the 2022 Act, in that the Strategy did not include targets and measurable benchmarks in accordance with the requirements of the legislation – important metrics by which to measure the growth and development of integrated education in the province, something which the Department is required (under the 2022 Act) “to encourage, facilitate and support”.

In allowing the IEF’s application for a judicial review of the Strategy, the Court declared that it was indeed published in breach of section 9(2)(e)(ii) and (iii) of the 2022 Act, for the above reasons.

Contact Brian Moss at our Belfast office on 02890434015 for advice and guidance.

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The Plaintiff has an autism spectrum disorder which was not diagnosed with until shortly prior to his 18^th birthday. The court was told that the Plaintiff is largely unable to read or write or do any mathematical problems.  The Plaintiff had been placed in a general special education school without any or adequate assessment of his needs or progress and it was argued that there was a failure to diagnose his condition adequately or at all and to provide autism-specific educational service.

The case was taken against the HSE, the Minister for Education, Ireland and the Attorney General, as well as Brothers of Charity Services, Renmore, Galway which provides services for individuals with intellectual disabilities and the board of management of St Joseph’s Special School, Newcastle, Co Galway.

The settlement reached was for €125,000 euro and was made without admission of liability.

Worthingtons Solicitors have a team of Solicitors with extensive experience in handling educational negligence cases arising from failures to diagnose ASD, dyslexia and other conditions.  If you believe that an education provider has been negligent in providing advice or making a diagnosis in respect of you or a family member which has resulted loss we will gladly provide advice on all aspects of educational negligence claims in Northern Ireland.

Contact Brian Moss at our Belfast office on 02890434015 for advice and guidance on this process.

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There are two ways to challenge admission to Secondary School:

1. The School Admissions Appeal Tribunal
2. The Exceptional Circumstances Body

1. The School Admissions Appeal Tribunal

An appeal can be made to this body to challenge a Board of Governor’s decision not to admit a child to their school. The Tribunal’s powers are governed under article 15(5) of the Education (Northern Ireland) Order 1997 and must follow a strict statutory test.

The Tribunal must ask themselves:

1. Were the school’s admission criteria applied, or applied correctly; and
2. If they had been correctly applied would the child have been granted entry into the school

If the Tribunal hold that the criteria were not applied/correctly, and that if they had been applied correctly the child would have been granted entry into the school, the school must make a place for that child in the school. However, if the Tribunal find that the criteria, if applied correctly, would have led to the child being refused from the school, the appeal shall be dismissed.

The Tribunal reviews the situation as it was before the school when it purported to apply its criteria, it cannot substitute its own decision for the decision of the school.

The majority of cases we have dealt with involve the Board of Governors failing to take relevant consideration of the special circumstances application submitted by our clients. Special Circumstances is given a broad meaning and could include a bereavement at the time of the transfer test, the child or a close family member being unwell at the time of the test, or indeed a learning difficulty later being diagnosed, which would have impacted upon the child at the time of the test.

There is a tight deadline for submission of the appeal, and the date will be detailed in the letter of offer. This will also provide details of to whom you should submit the appeal.

2.The Exceptional Circumstances Body

This body’s powers are governed by the School Admissions (Exceptional Circumstances) Regulations (NI) 2010, and they consider application by parents that their child must attend a particular school. To make this decision they adopt a three-stage test:

1. Are the circumstances claimed exceptional?
2. Are the circumstances claimed personal to the child? and
3. Do the circumstances claimed required the child’s admission to the school, and only that school?

The body cannot consider circumstances which relate wholly or mainly to the kind of education provided at that school e.g. grammar versus comprehensive, circumstances related to a child’s academic ability, or circumstances related wholly or mainly to the availability of transport to that school.

The legislation gives examples of an exceptional circumstances, namely where in the opinion of a medical practitioner the child has been subjected to sexual abuse or where the child is looked after by an authority (article 5).

There is no deadline for making an application, save that the child has been recently turned down from the specified secondary school.

If a parent wishes to appeal a School’s decision to refuse entry to their child they should:

1. Be aware of the deadline to submit their appeal
2. Complete the form as fully as possible, directing their reasons for appeal to the statutory tests outlined above
3. Append all the necessary supporting documentation, to include their child’s previous PIE and PIM scores verified by the Primary School Principal and any relevant medical evidence

Worthingtons Solicitors have successfully dealt with a number of School Admissions Appeals, and Exceptional Circumstances Body applications. We can provide assistance and representation from the initial stage of submitting the Appeal, to attending the Appeal Hearing to provide representation.

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There are two ways to challenge admission to Secondary School:

1. The School Admissions Appeal Tribunal
2. The Exceptional Circumstances Body

1. The School Admissions Appeal Tribunal

An appeal can be made to this body to challenge a Board of Governor’s decision not to admit a child to their school. The Tribunal’s powers are governed under article 15(5) of the Education (Northern Ireland) Order 1997 and must follow a strict statutory test.

The Tribunal must ask themselves:

• Were the school’s admission criteria applied, or applied correctly; and
• If they had been correctly applied would the child have been granted entry into the school

If the Tribunal hold that the criteria were not applied/correctly, and that if they had been applied correctly the child would have been granted entry into the school, the school must make a place for that child in the school. However, if the Tribunal find that the criteria, if applied correctly, would have led to the child being refused from the school, the appeal shall be dismissed.

The Tribunal reviews the situation as it was before the school when it purported to apply its criteria, it cannot substitute its own decision for the decision of the school.

The majority of cases we have dealt with involve the Board of Governors failing to take relevant consideration of the special circumstances application submitted by our clients. Special Circumstances is given a broad meaning and could include a bereavement at the time of the transfer test, the child or a close family member being unwell at the time of the test, or indeed a learning difficulty later being diagnosed, which would have impacted upon the child at the time of the test.

There is a tight deadline for submission of the appeal, and the date will be detailed in the letter of offer. This will also provide details of to whom you should submit the appeal.

2. The Exceptional Circumstances Body

This body’s powers are governed by the School Admissions (Exceptional Circumstances) Regulations (NI) 2010, and they consider application by parents that their child must attend a particular school. To make this decision they adopt a three-stage test:

• Are the circumstances claimed exceptional?
• Are the circumstances claimed personal to the child? and
• Do the circumstances claimed required the child’s admission to the school, and only that school?

The body cannot consider circumstances which relate wholly or mainly to the kind of education provided at that school e.g. grammar versus comprehensive, circumstances related to a child’s academic ability, or circumstances related to the availability of transport to that school.

The legislation gives examples of an exceptional circumstances, namely where in the opinion of a medical practitioner the child has been subjected to sexual abuse or where the child is looked after by an authority.

There is no deadline for making an application, save that the child has been recently turned down from the specified secondary school.

If you wish to appeal a School’s decision to refuse entry to your child you should:

• Be aware of the deadline to submit their appeal
• Complete the form as fully as possible, directing their reasons for appeal to the statutory tests outlined above
• Append all the necessary supporting documentation

Worthingtons Solicitors have successfully dealt with a number of School Admissions Appeals, and Exceptional Circumstances Body applications. We can provide assistance and representation from the initial stage of submitting the Appeal, to attending the Appeal Hearing.

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Primary school unlawfully discriminates against young school girl as a result of her disability (ASD).

The facts of the case:

School residential trips tend to be the highlight of a child’s school year – they are an opportunity to gain experience of different activities and engage in team challenges, whilst strengthening friendships and gaining independence. One such trip was planned in this pupil’s school and she was very excited at the prospect, having been given a leaflet inviting her to attend.

The child’s mother had consistently been given the impression that the child was doing well in the school through school reports, parent-teacher meetings and annual reviews with the school’s SENCO (Special Educational Needs Co-ordinator), to the point that the Education Authority’s ASD services had not been required, and so she did not question her daughter’s inclusion in the trip. However, within days of the child being invited on the trip, the child’s mother was informed that the trip was considered unsuitable for her child. This was, she was informed, as a result of a verbal risk assessment that had been carried out following the Annual Review which was held only days before. Indeed, during the Annual Review the child’s mother had asked about arrangements for the trip, and received continued reports of how well her child was doing.

This was very difficult for both mother and daughter – the young girl was obviously aware of the trip having been informed of it, and was unsure why she could not attend when her peers were able to. This further differentiated her from her peers, and led to anxiety and uncertainty at what would happen to her when the other children were away on the trip. Moreover, this was very confusing for her mother, who had repeatedly been informed that her daughter was coping well in school.

The girl’s mother tried repeatedly to engage with the school to facilitate her daughter’s attendance on the trip, as her daughter was really looking forward to it, and had successfully been on two two-night residential activity trips within the past two years with a voluntary organisation. The girl’s mother believed that, with the right support, her daughter could attend, and indeed that the trip would help her daughter achieve objectives in her Statement of Special Educational Needs, for example, developing her social, interaction and play skills, particularly with her peers; developing independence; and building up her self-esteem.

A copy of the written risk assessment provided some weeks later had a different focus – the needs arising from her daughter’s disability. This risk assessment seemed to list aspects of her disability and use these as the basis for why she could not go. There appeared to be no consideration in this of how her attendance could be facilitated.

Subsequently, the young girl was suspended on two occasions, and received a serious behaviour sanction, which were to remain on her school record. The behaviour which led to these suspensions was, it was claimed by the mother, caused by the young girl’s disability. She claimed that there were inadequate strategies in place to manage the child’s build-up of anxiety, to diffuse tension, or to communicate adequately during these times. Therefore, it was claimed that the child’s reactions in the classroom, which led to these suspensions, were a consequence of adequate strategies not being put in place for her. Prior to this, the child’s mother had attended the school, and advised on strategies that could be implemented should challenging behaviours occur. These had not been implemented, indeed one strategy being used by the school was for her daughter to go ‘under a table’ as her ‘safe space’, which was, it was argued, demeaning and degrading.

The case, therefore, made to the Special Educational Needs Tribunal was that the young girl was subjected to unlawful discrimination in relation to her exclusion from the school trip, including the process of risk assessment relative to that trip, and also in the manner in which she was subsequently disciplined in relation to her behaviour in school.

The Tribunal’s decision:

The Tribunal found that the school had unlawfully discriminated against the young girl in relation to her disability, contrary to the provisions of The Special Educational Needs and Disability (Northern Ireland) Order 2005 (“the 2005 Order”).

The Tribunal highlighted that the child’s interests should be the paramount consideration of both teachers and parents, and found that:

1. As a result of having Asperger’s Syndrome, the young girl was a person subject to a disability in accordance with article 2(3) of the 2005 Order, which states that the Disability Discrimination Act 1995 (“the DDA 1995”) applies for the purposes of determining whether a person is subject to a disability. In this regard, the Autism Act (NI) 2011, extended the definition given to ‘disability’ under the DDA 1995, to include those who have impairments in (i) taking part in normal social interaction; or (ii) forming social relationships. This necessarily encompasses all persons who have Autism Spectrum Disorder (ASD), which includes Asperger’s Syndrome;.
2. In relation to her exclusion from the school trip, that the school had treated her less favourably for a reason related to her disability;.
3. It was the school’s duty to make reasonable adjustments to facilitate the pupil’s attendance, not the parents. The Tribunal found that the school had failed to carry out an adequate risk assessment in advance of advertising the school trip, and thereafter failed to make reasonable adjustments to facilitate her attendance. This was viewed in the context of the child’s knowledge that she had been invited on the trip; constituting unlawful discrimination;.
4. Finally, that the school had a duty to anticipate problems and difficulties in relation to a disabled child’s attendance at school. The Tribunal found that the school had failed to develop specific strategies to avoid the behavioural problems presented, and indeed, that the child’s potential behavioural problems and actual behaviour that led to her suspensions were directly related to her disability. That the school had failed to make reasonable adjustments to develop strategies to avoid outbursts such as did occur and which resulted in the child’s suspensions. The Tribunal did not accept the school’s submission that the child’s behaviour should be viewed in isolation ignoring her specific disability. The Tribunal ruled that the record of the child’s suspensions should be expunged.

Should you have any queries in regards to the education provision currently provided to your child with special educational needs please do not hesitate us on 028 9043 4015 or e-mail info@worthingtonslaw.co.uk

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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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Be Aware Of Your Legal Rights If Your Child Needs Special Help In School
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, and 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.

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.

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 system 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.

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 here at Worthington’s Solicitors, and we are always happy to offer professional advice on dealing with SEN issues and appeals to the SENDIST.

To discuss further, please contact Brian Moss for a confidential consultation.

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