We are proud to be one of the few firms of solicitors in Northern Ireland, who specialise in dealing with educational law issues. We have a particular interest in acting for and advancing the interests of children and young people in these types of cases.
For most of our children, fortunately they do not ever require legal advice or representation about issues arising during their school lives, or afterwards. However, for some, in particular those with special educational needs, issues will arise concerning their school, or their Education & Library Board, which can lead to legal advice and representation being necessary.
Below is a summary of some of the issues and types of case which we have dealt with on behalf of children and young people in this area of law.
Increasingly, children with special educational needs are bearing the brunt of budget cuts when it comes to the resources that Education and Library Boards and schools are prepared to allocate to them. This is concerning because children with a special educational needs profile require additional resources to achieve their full potential in the education system, and so they can be placed on a level playing field with children who do not have such needs. It is important that schools make reasonable adjustments for all pupils with special educational needs, for example by ensuring that they are given extra time in examinations, or that lesson plans and more individualised education, is provided. In addition to this, the Education and Library Boards have a duty to ensure that they identify those children in their Board area who have special educational needs, and it is important that both they, and the schools, move forward any child who is not progressing sufficiently, to the point where more definite and targeted provision is made for their special educational needs. This often requires a ‘statement’ of the pupil’s special educational needs to be made by the Board. This statement is an extremely important document, because the Boards have a duty to deliver the educational provision which is set out. If they do not, they will possibly be breaking the law – see article 16(5) of the Education (Northern Ireland) Order 1996.
At Worthingtons, we have successfully dealt with cases brought to challenge either the withdrawal of Board funding or support, or where there has been a failure by a Board to make the provision required by a statement of special educational needs. Frequently, the legal process in these types of cases is an application for judicial review, to the High Court. Such cases are legally complicated, and require the assistance of specialist solicitors and barristers.
We have also dealt with cases where the issues are about reasonable adjustments not being made by the child’s school, or where there is a disagreement about the contents of the child’s statement. Such cases can usually be dealt with by the Special Educational Needs and Disability Tribunal (SENDIST).
Every parent in Northern Ireland has a legal duty to ensure that their child receives a full-time education. This can be complied with by the parent ensuring their child regularly attends school ‘or otherwise’ – see article 45 of the Education (Northern Ireland) Order 1986. In effect, this means that every parent has the right to home school their child, should they wish to do so.
Parents who choose to home educate, usually do so for a number of clear reasons. These can include dissatisfaction with the mainstream schooling system, bullying, remoteness of where they live, or simple parental preference. All are equally good reasons for a parent to choose to home educate their child.
There can sometimes be issues when the Boards seek to enquire into the nature of the home education being provided by parents. Quite frequently, it is questionable whether Boards have any legal right to do so and in any case parents can find this process immensely challenging, as to can the children involved, many of whom prefer or would choose education at home, rather than being made to go to school.
One of the central concerns for parents is that their child is able to go to the school of their parents’ choosing. In recent years, with the abolition of the 11 plus, and the adoption of new transfer tests for pupils wishing to attend grammar schools, has made this process difficult and challenging for all concerned.
If a child is refused admission to a certain school, whether because he or she did not attain the necessary score in a transfer test, or for any other reason, parents are often concerned as to whether they have any right of complaint or appeal about this. Often, the child themselves will have a strong preference for a particular school and not being admitted to that school can be a source of much heartache and disappointment.
In a case where a school have not followed their admission criteria (or not followed it properly), there is the right of appeal to the Admissions Appeal Tribunal. We have successfully acted for parents in appeals to this Tribunal, resulting in their children being admitted to their school of choice.
In addition to this, the Department of Education have set up an Exceptional Circumstances Body, who can consider applications from parents whose children have not been admitted to their school of choice, in exceptional circumstances.
Worthingtons are in a position to advise about the appropriate course of appeal which may be open to parents in these cases.
It is, of course, not uncommon for pupils to be disciplined whilst at school. Punishments such as detention and lines / copying out the school rules are common for forgetting homeworks, talking in class, and other misbehaviour. These types of punishment are matters within the absolute disciplinary discretion of the school concerned and almost certainly, the courts would never intervene in these matters.
However, more serious misbehaviour may result in either suspension or expulsion from school. Both of these decisions are made by schools under powers conferred on them by law, or regulated/defined by law. Therefore, it is possible that such decisions may be open to challenge, either by an appeal which is available in the case of expulsion, or by seeking a judicial review, which may be available in both instances.
Should you have any queries about any educational law matter, please contact our specialist solicitors Brian Moss: [email protected] or telephone the office on 028 9043 4015 if you would rather speak with Brian in person.
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