Personal Injury
By Shauneen Wilson
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Special Educational Needs – Protecting the Right to Education

Children with learning difficulties can often experience problems with accessing the same level of education as other students and may require additional assistance to ensure that their educational needs are being met.

Article 3 of the Education (NI) Order 1996 states that ‘a child has special educational needs if they have a learning difficulty or disability which means they have more difficulty in learning than most children of their age.’

It is vital that any child who falls within the scope of Special Educational Needs (SEN) is properly supported. The rights of SEN students to access adequate education is protected by Article 14 of the European Convention on Human Rights and any breach of this right should be considered extremely serious.

Duties of the School

Schools should be in a position to meet the needs of any registered SEN student. For example, the Board of Governors for the school have a statutory obligation to appoint a Special Educational Needs Co-Ordinator (SENCO) who will be responsible for ensuring that the statement of special educational needs for any SEN student is being followed and that each SEN student’s needs are being kept under review. In addition, the school will have to make provision in their overall budget for costs associated with special educational needs.

The school also has a duty to make reasonable adjustments for SEN students. This may necessitate additional support staff or supervision in the areas of reading, writing, socialising, behaviour management and involvement in school life generally.

If a parent is concerned about their child’s needs and the extent to which they are being met by the school, they are entitled to speak to the SENCO in the school and request a SEN assessment for their child. Alternatively, a parent can contact the Education Authority Directly and request a SEN assessment.

Duties of the Education Authority

The Special Educational Needs and Disability Act (NI) 2016 requires the Education Authority to take the following steps in respect of SEN students:

  • Prepare a plan setting out arrangements made for special educational needs provision;

  • The plan should include a description of:

  • The resources and the advisory support services the Authority proposes for discharging its functions in relation to special educational provision;

  • The arrangements for securing the provision of any training for staff in grant aided schools which is required for the effective discharge of their functions in relation to special educational needs provision.

  • The Authority has a duty to review the plan at least once a year and may at any time revise the plan.

In simple terms, the Education Authority has an overriding responsibility to ensure that a detailed statement of special educational needs is in place for SEN students which includes details of the support and resources required to ensure that the needs of that student are met. In addition, the Education Authority can request help from Health and Social Care bodies to ensure that they are discharging their statutory duty.

Breach of SEN requirements

If a parent believes that the Education Authority has not dealt with their child’s educational needs appropriately, they are entitled to appeal to the Special Educational Needs and Disability Tribunal. An appeal can be lodged on any of the following grounds:

  • If you or the school have asked the Education Authority to assess formally your child’s special educational needs and it has decided not to, or if it carries out the assessment but then decides not to make a statement on your child;

  • If the Education Authority does make a statement, or amends an existing statement, you can appeal against the educational contents of the statement;

  • You can also appeal if the Education Authority decides that your child should no longer have a statement, or decides not to amend a statement after carrying out a re-assessment of your child’s needs;

  • In certain circumstances you could also appeal if the Education Authority decides not to re-assess your child or turns down your request to have your child placed in a different school.

In some circumstances, parents will also be entitled to judicially review the decisions of the school, the Education Authority and/or the Tribunal if the decisions are considered to be unlawful, irrational, unreasonable or procedurally unfair.

We have acted in numerous cases involving successful challenges to SEN provisions and will be able to advise parents fully on their legal rights and potential grounds for challenge, if applicable.

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