SEN case law

Knowledge is power and the more you know about your rights and your children's rights, the better you can navigate the system.

Useful caselaw

Here are some useful cases on SEN. They are not intended to be a substitute for legal advice: they simply provide an idea of the legal framework. The cases are taken from the very useful internet summary provided by educational law expert David Wolfe QC.

• Part 2 of the statement is like the diagnosis and Part 3 is the prescription to meet it. Each special educational need specified in Part 2 must be met by provision specified in Part 3: R v Secretary of State for Education ex parte E [1992] 1 FLR 377.

• Part 2 and Part 3 of the statement concern educational need. Whether a need is educational or non-educational (or a mixture of both) is a question of fact rather than law for the local authority and Tribunal to consider in each case: Bromley v SENT [1999] ELR 260. 

• SEN COP para 8.37 confirms that provision should be quantified in terms of hours (etc). Provision should also be specified. “The real question … is whether [the statement] is so specific and so clear as to leave no room for doubt as to what has been decided and what is needed in the individual case”: L v Clarke and Somerset [1998] ELR 129. The law requires“focussed and express consideration to be given to the specific needs of a child and then to provide for them in terms which will further and effect its enforceability as a provision…” IPSEA Ltd v Secretary of State for Education [2002] EWHC 504, [2003] ELR 393. A  local authority policy to refuse to specify or quantify is unlawful.

• This means that words like “as appropriate”, "opportunities for" "access to", “as required”, “regular”,  “subject to review” are all likely be unlawful for lack of specification. 

• Flexibility in a statement is only allowed if it is for the child's benefit and not to suit the school - IPSEA v Secretary of State [2003] EWCA Civ 07 [2003] ELR 86.

• Speech therapy should be treated as educational (i.e. Part 3) unless there are “exceptional reasons for not doing so”: SEN Code para 8.49; X&X –v- Caerphilly BC[2004] EWHC 2140, [2005] ELR 78.

• A local authority should not simply look at the short term needs of a child in drawing up a Statemen, it should look at long-term needs too: Wilkin & Goldthorpe v Coventry [1998] ELR 345 Southampton v G [2002] EWHC 1516.

• Statements should be intelligible and not ambiguous: T v Hertfordshire [2003] EWCA Civ 1893.

• Part 4 of a statement should only be decided after Part 2, then 3 had been set out: T v Neath Port Talbot [2007] EWHC 3039;The Learning Trust v MP [2007] ELR 658

• Part 3 must describe the details of the provision to be made. For example, class size - H v Leicestershire [2000] ELR 471; staff qualifications/experience R v Wandsworth ex parte M [1998] ELR 424.; the size of any group, the length and frequency of the sessions L v Clarke and Somerset [1998] ELR 129; the quantity of 1:1 work L v Clarke and Somerset [1998] ELR 129; what input is required from professionals such as speech and language therapists R v Harrow ex parte M [1997] FCR 761.

• Funding might be split between schools and local authorities but this has no legal effect on the child’s entitlement and the local authority is still responsible for making the provision if the school fails to do so: R v Oxfordshire ex parte C [1996] ELR 153.

• The local authority's duty under the Education Act 1996 s324(5) to arrange the provision in the statement of SEN was absolute. It is not enough to say they used their “best endeavours" - N v North Tyneside Borough Council [2010] EWCA Civ 135 N. Para 8:109 of SEN COP confirms that the duty is to "arrange the special educational provision.......from the date on which the statement is made."

• A local authority can make provision out of school if appropriate provision cannot be made in school. It must ask what does the child need and whether those needs can be met at school: S v Bracknell Forest [1999] ELR 51: TM v Hounslow [2009] EWCA Civ 859

Douglas Silas have posted some of the parents' stories behind their cases here