CHAPTER TWO – OUR STARTING POINT – PUPILS WITH SPECIAL EDUCATIONAL NEEDS AND/OR DISABILITIES (SEND)
Section 20 Children and Families Act 2014
We will start by setting out the definition of SEND under the existing legislation, now ten years old which followed a major review of SEND law:
(1) A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her.
(2) A child of compulsory school age or a young person has a learning difficulty or disability if he or she—
(a) has a significantly greater difficulty in learning than the majority of others of the same age, or
(b) has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.
(3) A child under compulsory school age has a learning difficulty or disability if he or she is likely to be within subsection (2) when of compulsory school age (or would be likely, if no special educational provision were made).
This definition therefore covers children from birth (under compulsory school age) through to at least age sixteen, noting the compulsory school age is between five – sixteen years. Young people as a definition are generally classed up until someone turns eighteen years old i.e., younger than nineteen but over the compulsory school age.[1]
However, as will be set out in this guide, young people as a term can now apply to those up to, and including, the age of twenty-five. For our purpose, this is specifically considering young people with SEND. The implications on expanding educational support and provision for a wider range of young people will be addressed in Chapter Three.
The SEND Code of Practice 2015 provides a helpful overview of local authority responsibilities and considerations for young people aged 19-25:
“…to consider the need for EHC needs assessments, prepare EHC plans where needed, and maintain and review them, including the duty to ensure that all reviews of EHC plans from Year 9 (age 13-14) onwards include a focus on preparing for adulthood and, for 19-25 year olds, to have regard to whether educational or training outcomes specified in the EHC plan have been achieved”[2]
Additional guidance confirms:
“…a local authority must not cease an EHC plan simply because a young person is aged 19 or over…However, this position does not mean that there is an automatic entitlement to continued support at age 19 or an expectation that those with an EHC plan should all remain in education until age 25…judgements on when to stop or maintain a plan must be made on a case-by-case basis and in accordance with the statutory tests and processes…”[3]
Going back to Section 20, another point to be aware of is the reference to “institutions” at (2) (b), which is defined as:
- …”school” means an educational institution…providing –
- Primary education
- Secondary education, or
- Both primary and secondary education…[4]
A useful summary of practical points to consider in line with this definition was set out by Upper Tribunal Judge Rowley in NN v Cheshire East Council (SEN)[5]:
“In MA v Borough of Kensington and Chelsea (SEN) [2015] UKUT 0186 (AAC) Upper Tribunal Judge Levenson decided that whether an entity is an educational institution of one of the types listed in section 4 is a question of fact for the specialist tribunal, taking account of all the relevant evidence including…those factors set out by Upper Tribunal Judge Lane in paragraph 33 of TB v Essex County Council (SEN) [2013] UKUT 0534 (AAC), namely: regulation, governance, financing and administration.”[6]
I have highlighted, in my view, the key points to be aware of. This summary, and definition, will be important to remember for chapter five, as it provides a central point of debate in respect of EOTAS/C and the location for this.
Section 21 Children and Families Act 2014 – special educational provision
Going back to the Children and Families Act 2014, a key part of the legal definition for SEND is the term “special educational provision”, which itself is defined as follows:
(1) “Special educational provision”, for a child aged two or more or a young person, means educational or training provision that is additional to, or different from, that made generally for others of the same age in—
(a) mainstream schools in England,
(b) maintained nursery schools in England,
(c) mainstream post-16 institutions in England, or
(d) places in England at which relevant early years education is provided.
(2) “Special educational provision”, for a child aged under two, means educational provision of any kind.
Whilst children under five years old can receive special educational provision, for our purpose we will only be considering situations when a child is at least five years old i.e., when they are legally required to attend school, through to young people aged twenty-five years old. The simple reason for this is because the twenty-year span provides us with different periods of education and development that all happen through a child and young person’s school and, if applicable, college career. Therefore, this covers all the likely potential stages when EOTAS/C may be a requirement.
This is not to say that children under the age of five are precluded from requiring EOTAS (note the term here is not EOTAS/C given the “C” stands for college), as each case will require advice on its individual merits and limitations. Arguably, however, it is less likely given their limited experience of attending educational settings full-time prior starting at a primary school, and so less chance to ascertain if EOTAS is necessary for them.
Another point to take note of, as will be addressed in chapter four, is when special educational provisions are required i.e., to facilitate education or training:
“A provision may be educational without itself educating a child. The word means ‘of, pertaining to, or concerned with education’ to quote the Oxford Shorter English Dictionary (fifth edition).”[7]
This term is one we will come across frequently in examining EOTAS/C. It is also important to understand how central special educational provisions are in respect of EHCPs more widely.
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[1] Section 579(1) Education Act 1996
[2] Paragraph 8.3 SEND Code of Practice 2015
[3] Paragraph 1 SEND: 19- to 25-year-olds’ entitlement to EHC plans, 21 February 2017
[4] Section 4(1) Education Act 1996
[5] [2021] UKUT 220 (AAC)
[6] Paragraph 26 [2021] UKUT 220 (AAC)
[7] Upper Tribunal Judge Jacobs, Paragraph 9 EAM v East Sussex County Council UA-2022-000328-HS / [2022] UKUT 193 (AAC)