SEND basics
While no TA, or indeed classroom teacher, is expected to become an expert in SEND, having some awareness of the way the system has evolved, and its basis in law, can be a genuine advantage. A clear understanding of the basics underpins good practice in all respects.
As a school-wide provision, rather than a subject-based department or phase, school arrangements for SEND are made in direct reference to educational law and the governmental guidance produced by the Department for Education (DFE).
The SEND Code of Practice refers to the commitment of the UK Government to the āinclusive education of disabled children and young people and the progressive removal of barriers to learning and participation in mainstream educationā (Education, SEND Code of Practice: 0ā25 years, 2014, pp. 1.25,26) under Articles 7 and 24 of the United Nations Convention of the Rights of Persons with Disabilities.
The legal right to a mainstream education for children with SEND was established following the Warnock Report of 1978, and is included in the subsequent Education Acts of 1981 and 1993. The existing definitions relating to SEND formed part of the Education Act of 1996; this was superseded six years ago by the Children and Family Act (CAFA) 2014 (Government, 2014).
The CAFA 2014 sets out the explicit duties in respect of children with SEND. The duty on schools, along with those placed on Local Authorities (LAs) and other organisations, are described in the Special Educational Needs and Disability Code of Practice: 0ā25 Years, 2020 (The Code) and this document relates directly to the CAFA.
The SEND Code of Practice: 0ā25 Years (The Code) took effect on 1 September 2014, and details statutory guidance to organisations, including schools, relating to young people with SEND.
It relates to Part 3 of the Children and Families Act 2014 along with other regulations.
The Code refers to statutory duties placed on organisations regarding disabled children and young people by the Equality Act 2010.
What are the key terms?
Itās very helpful to begin by getting an understanding of the key definitions contained in the CAFA. The definitions of a special educational need, a learning difficulty and special educational provision, along with a definition of disability are as follows:
Definition of Special Educational Needs (SEN)
Section 20 (1) of CAFA
A child or young person has SEN if they have a learning difficulty or disability which calls for special educational provision to be made for him or her.
Definition of a Learning Difficulty
Section 20 (2) of CAFA
A child of compulsory school age or a young person has a learning difficulty or disability if they:
- (a) have a significantly greater difficulty in learning than the majority of others of the same age; or
- (b) have a disability which prevents or hinders them from making use of educational facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.
Special Education Provision
Section 21 of CAFA
Educational or training provision that is additional to, or different from, that made generally for others of the same age in -
Definition of disability
Section 6 (1) of the Equality Act 2010
A person (P) has a disability for the purposes of this Act if
- P has a physical or mental impairment, and
- the impairment has a substantial and long-term adverse effect on Pās ability to carry out normal day-to-day activities (Section 6).
These terms are often conflated but it is important to see the distinctions; whilst they are related, they are NOT interchangeable.
A learning difficulty may or may not constitute a disability and, in either case, may or may not result in SEND and the implementation of a special educational provision (SEP).
In respect to schools, The Code refers to eight sections of the law, including the Equality Act 2010 (Government, Equality Act 2010) and the Special Educational Needs and Disability Regulations 2014 (Government, The Special Educational Needs and Disability Regulations 2014), as the relevant primary legislation. The Code explains statutory responsibilities placed upon schools1 in terms of duties they āmustā perform.
As well as being required to identify and address the SEND of the pupils that they support, their āmustā duties include:
- use their best endeavours to make sure that a child with SEND gets the support they need ā this means doing everything they can to meet children and young peopleās SEND
- ensure that children and young people with SEND engage in the activities of the school alongside pupils who do not have SEND
- designate a teacher to be responsible for co-ordinating SEN provision ā the SEN co-ordinator, or SENCO (this does not apply to 16 to 19 academies)
- inform parents when they are making special educational provision for a child
- prepare an SEND information report and their arrangements for the admission of disabled children, the steps being taken to prevent disabled children from being treated less favourably than others, the facilities provided to enable access to the school for disabled children and their accessibility plan showing how they plan to improve access progressively over time (Education, SEND Code of Practice: 0ā25 years, 2014, p. 92).
The CAFA and the guidance to schools provided in The Code is designed to enable pupils with SEND (whether or not they are in receipt of an Education, Health and Care Plan (EHCP)) to access an appropriate education, to āachieve their bestā (Education, SEND Code of Practice: 0ā25 Years, 2014, p. 92) and to make a successful transition to the next stage of their lives with confidence.
What is an Education, Health and Care Plan?
When a school finds itself unable to make the appropriate provision for a childās SEND, an application can be made to the relevant LA to conduct an Education, Health and Care (EHC) needs assessment. If an EHC needs assessment takes place and results in an EHCP, the Plan should reflect a coordinated approach. This document should detail all aspects: educational, social and health care sectors. Also, it should fully describe a childās learning difficulties and the SEND that arises because of this difficulty or difficulties. The Plan should describe the childās:
- ā learning difficulties
- ā special educational needs
- ā the setting and provision required
- ā the details of additional curricular or specialist therapeutic support
- ā details of any social or health care provision
How many school pupils have an EHCP?
Itās important to look at these statistics carefully, bearing in mind that EHCPs are in place for young people beyond compulsory school age, up to the age of 25. Statistics on SEND for young people aged 19ā25 years old in England, published in May 2020 (Education Health and Care Plans: England, 2020) recorded that 390,109 children and young people were in receipt of an EHCP.
In the calendar year 2019, LAs received 82,300 initial requests for an EHC needs assessment. This represents a 14% rise from the previous year. If an initial application is successful and the assessment takes place, the needs process is highly likely to result in an EHCP; in 2019, 94% of needs assessments resulted in a Plan. However, the most recent statistics show that 23% (18,800) initial applications were refused.
Of the 57,300 assessments made, 94% or 53,900, resulted in a new Plan. The process of an EHC needs assessment is far from perfect and can sorely test the resilience of schools and families. This is not simply a matter of opinion but recently an explicit finding of a parliamentary select committee on SEND. The committee found that there were serious failings embedded in the current system, āstaff in schools and local authorities do not know the law, give misleading information or unlawful advice, and in some cases, publish erroneous information on their websiteā (Special Educational Needs and Disabilities, 2020, pp. 3ā4). The process is, or rather should be, tightly time limited but often can exceed the limitation set and may well result in conflict. In 2019 only 60.4% of Plans were issued within the 20-week time limit. As a result, a system designed to protect the rights of children and young people with SEND to a mainstream education too often becomes a serious bone of contention for children and families, schools and authorities, resulting in disagreements that require professional mediation or referral to the First-Tier Tribunal.
While it is unlikely that TAs would be asked to take independent responsibility for this process or even parts of it, understanding its relevance i...