The Law Of… Supporting SEN At All Levels
The Upper Tribunal (UT) recently provided clarification and guidance on the application of the Children and Families Act 2014 (CFA) to young people who are pursuing or considering higher education.
Specialist Education Law and Community Care solicitor Thomas Mitchell explains what this means for Local Authorities (LAs) and those with special educational needs (SEN).
Why Was This Guidance Issued?
The Upper Tribunal decided to issue clarification on certain parts of the CFA 2014 after dealing with a case involving the needs of a young person with autism and other SEN who was interested in going into higher education.
He was enrolled on various Open University modules that were being delivered by an independent post-16 institution. But, after he applied for an Education, Health and Care Needs Assessment (EHCNA) his LA refused to conduct one as it decided that as the Open University is an institution in the higher education sector the requirements of the CFA 2014 did not apply.
Unhappy with the outcome, the young person decided to make an appeal to the First-tier Tribunal. The Tribunal then ordered the LA to conduct an EHCNA. As the LA disagreed with this decision, it then made an appeal to the Upper Tribunal, which allowed the appeal on the basis of errors made in the way the First-tier Tribunal managed the appeal.
After weighing up both sides of the case, the Upper Tribunal ordered the LA to conduct an EHCNA.
The judgment published provides a detailed analysis of the background of the case and how it was managed by the First-tier Tribunal.
What Is An EHCNA And What Happens During An Assessment?
If a child or young person is believed to have or may have special educational needs (SEN), LAs have a legal duty to assess their education, health, and care needs and identify how they need to be supported.
As part of the assessment, LAs must obtain information and advice about a child or young person's needs, which provisions are needed to meet their needs, and what outcomes are expected.
What Does 'Special Educational Provision' In The Children And Families Act Mean?
Under section 21 of the Act, 'special educational provision' refers to extra or different provisions that need to be made for children and young people with SEN.
This should be interpreted on a case-by-case basis, and therefore its definition varies in relation to the needs of a particular person.
But generally, LAs or the First-tier Tribunal have to determine the type of provisions that should be made in England for a particular age group. In cases involving those who potentially have SEN, a LA or the FTT will have to consider whether the educational provision required by the child or young person is additional to or different from that made for others in the same age group.
If they need additional or a different type of support, then this is defined as a special educational provision.
Do Local Authorities Provide EHCPs Or EHCNAs For Individuals Going To University?
The CFA 2014 does not apply to the provision of higher education. Section 83 of the Act lists the specific types of institutions that can be named in EHCPs, and this does not include higher education institutions.
This means that section I of an EHCP cannot name an institution within the higher education sector or other institution that only provides higher education.
An LA has no obligation to conduct an EHCNA if a young person seeks higher education, as it wouldn't result in an EHCP. It's important that LAs make parents and young people aware of this.
But, there are some circumstances in which it might be necessary for an EHCNA to be undertaken for someone who is in higher education.
According to the Upper Tribunal, an EHCNA may be carried out if a student who is formally enrolled on a higher education course develops a health problem or becomes unable to cope with the demands and chooses to pursue a less demanding form of further education.
Can I Get An EHCP If I'm Enrolled On A Course That's Provided Through Or Conjunction With A Higher Education Institute?
It's important to remember that just because a course is provided by or under an arrangement with a higher education institution it doesn't mean that it's a higher education course.
What needs to be considered is whether the course falls under Schedule 6 to Education Reform Act 1998. If it does, then it will most likely be considered as higher education.
Excerpt from Simpson Millar, read the full article here