Memorandum submitted by John Friel (CS 46)


Submissions following evidence to the Scrutiny Committee

The most important defects in the proposals

In particular I draw attention to the fact referred to in oral evidence, that Section 8 Right of Appeal against the determination by a local authority not to amend the statement is presently unworkable.


The reason why it is unworkable is as follows:

(1) There is no time limit for a local authority to decide not to amend the statement. The annual review regulations are a part of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001, statutory instrument 2001/3455, do not impose a time limit on the local authority. This is the same position in Wales.

(2) The current draft does not (i) deal with the situation in which no party wants an amendment; (ii) the right of appeal should therefore arise as follows:

(a) when the annual review recommends an amendment; and

(b) the parents request an amendment

and the local authority refuse an amendment.


I therefore suggest that the current draft needs to be amended to provide for Section 8 as follows:

Amend Section 328A(1)(b) Where the parent requests an amendment of the statement, or the school on annual review requests amendment of the statement and either the authority determines not to amend the statement, or fails to make a determination within six weeks of the request or recommendation.

(2) The authority shall give written notification of the determination, and of their reasons for making it to the parent of the child concerned, or where no determination has been made, serve notice of the parents' right to appeal to the Tribunal.

As it stands, the right of appeal can be denied due to the fact there is no time limit imposed on the local authority, and that there is no clear trigger for the determination not to amend the statement. Further currently, if a local authority, when nobody wishes to amend a statement, determines not to amend it, which frankly is very frequent, the local authority will unnecessarily be required to give notice of a right of appeal, and conduct the necessary paperwork when no request has been made.

The further issues in relation to the right of appeal to the Special Educational Needs and Disability Tribunal

There are some concerns about the power of the Tribunal exercising its power to make orders to amend a statement which are entirely legitimate under Section 326 of the Act. I therefore suggest Section 8 also amends Section 326 further to add the following:

Section 8(7) - Section 326 sub-section (3)(b) shall be amended as follows - order the authority to amend the statement so far as it describes the authority's assessment of the child's special educational needs or specifies the special educational provision and make such other consequential amendments, to include where the Tribunal considers it is necessary, consequential amendments concerning non-educational provision to the statement as the Tribunal thinks fit.

Other issues in relation to the bill of importance concerning special educational needs

On the use of Home-School agreements Section 4 of the draft Bill - Home School agreements for each pupil. Section 4 amends Section 109A of the SSFA 1998. However, the Home-School agreement makes no reference to:


o Reasonable adjustments for those children with a disability (which may be different from special educational needs).

o The schools responsibilities which it intends to discharge to include the child or young person's special educational needs.

o It is to be remembered that approximately 2% of pupils have statements, a larger percentage about which there are various debates, have special educational needs.


Home-School agreements, reference is made to the Special Educational Needs and Disability Support Bill, Section 3, which requires schools about to permanently exclude a child, to review its:


(1) the effectiveness of reasonable adjustments it has made; and

(2) the special educational provision to be made for pupils with special educational needs at the school.


Section 3 of the Bill is freestanding and creates problems. Exclusion appeals go to the Independent Appeal Panel, appeals relating to any action taken in relation to an exclusion but not the final decision, relate to disability discrimination which is the jurisdiction of the First Tier Special Educational Needs and Disability Tribunal. There are two different Acts involved.

Section 317 1996 Act, applies to a child or young person with special educational needs who requires special educational provision and is a registered pupil at the school. The head teacher or the local education authority is only under a duty to be aware of the importance of identifying and providing for such pupils.

Currently there is no clear duty for the majority of pupils with statements, outlined in the legislation, to review reasonable adjustments and to meet their needs. To suggest that prior to the permanent exclusion the review takes place, is too late. There should be a clearer duty to review reasonable adjustments and special educational provision, and for that matter keep it under review at an earlier date. Thus a change to Section 317 is now required to this effect.


Lastly Home Education - Schedule 1. Schedule 1 refers to the right of a local authority to refuse home education if, see Schedule 1 paragraph 19B(7), it is considered to be harmful to the child's welfare to become home educated, or to be continued to be home educated. Some reference to meeting the child's special educational needs if they have been identified, should be considered as it may not be clear to those administering the system, that harm would include not meeting the needs, or it may be that it might be considered that not meeting the child's needs are not harmful, but nonetheless, the needs are not met. I would therefore suggest attention is given to the drafting of this provision, and as to the nature of the inspection of the child's home education. The provisions are too aggressive.


February 2010