CHAPTER ONE – INTRODUCTION – THE LAW ON SPECIAL EDUCATIONAL NEEDS AND DISABILITIES (SEND)
The law on SEND remains an ever developing, and pertinent, area of study.
At the time of writing (May 2025), potential changes to the processes for SEND law application are being examined and queried by the Government. There is, understandably, anxiety from parents, SEND charities and legal practitioners about the impact of such changes on children and young people with SEND. How far these changes may go, or if indeed they materialise at all, remain to be seen, noting that consultations and official procedures are required ahead of any changes being made to the law. In fact, there is also a petition requesting the current legislation remains in force. We shall, therefore, address this legislation, and the accompanying guidance, here.
Firstly, the Children and Families Act 2014 is the central point of reference. This was the result of a major reform in SEND law, after the Education Act 1996 had been the key legislation, and is simply described as:
“An Act to make provision about children, families, and people with special educational needs or disabilities…”[1]
Set out over ten parts, it is “PART 3 Children and young people in England with special educational needs or disabilities”[2] that is relevant for this guide. Part 3 subsequently contains 64 Sections, with several of these to note, specifically: Sections 19-24 inclusive, Section 27, Sections 30-44 inclusive, Section 49, and finally Sections 61-68 inclusive. Sections will be addressed as required throughout this guide in line with the relevant content, noting this will not necessarily follow chronological order.
It is important to note that some Sections of the Education Act 1996 have been superseded by the Children and Families Act 2014 although, as will be seen throughout this guide, many definitions and requirements remain from the former. Therefore, both Acts should be given due consideration as we progress through this guide of the EHCNA to EHCP process.
There are also the SEND Regulations 2014 that accompanies the Children and Families Act 2014, which provide useful details and expansion as required. For our purpose, key Regulations to be aware of are mainly located in “PART 2 Children and young people with special educational needs”[3]: Regulations 3-14 inclusive and Regulations 18-22 inclusive.
From experience, the Regulations often give more clarity than the Children and Families Act. However, both resources are essential for our purpose, as is likewise the SEND Code of Practice. Initially published on 1 September 2014, with a revised version issued in January 2015, it is the latter version that is referred to in practice and which we shall consider throughout this guide as necessary. The Code of Practice sets out very useful tables and timelines as needed, as well as collating the relevant legislation and regulations. Chapters 5-7 and 9 of the Code are of particular use for our purpose.
With several sources of reference for this guide (Children and Families Act, SEND Regulations and SEND Code of Practice, and Education Act) the aim here is not to set out all wording relevant from each respective source, but to pull out the important information from an individual text and acknowledge this as such.
Before we begin, it is useful to have this overarching principle in mind, and to refer to as needed:
“In exercising a function under this Part [3] in the case of a child or young person, a local authority in England must have regard to the following matters in particular—
- the views, wishes and feelings of the child and his or her parent, or the young person;
- the importance of the child and his or her parent, or the young person, participating as fully as possible in decisions relating to the exercise of the function concerned;
- the importance of the child and his or her parent, or the young person, being provided with the information and support necessary to enable participation in those decisions;
- the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes.”[4]
MORE INFORMATION / PURCHASE THE BOOK ONLINE
[1] Chapter Six, Introductory Text, Children and Families Act 2014, 13.03.2014
[2] Table of Contents, Children and Families Act 2014 (capitalisation as per the original formatting)
[3] Table of Contents, The Special Educational Needs and Disability Regulations 2014 (capitalisation as per the original formatting)
[4] Section 19 Children and Families Act 2014