Abstract
The law of Special Educational Needs (SEN) in England and Wales aims to ensure that children who have a ‘learning difficulty’ that gives rise to a need for special educational provision are identified and given appropriate support within the education system (or in some cases outside it). It is a complex and continually evolving field of law, recently amended further by the Special Educational Needs and Disability Act 2001 (the 2001 Act). The present law, contained in the Education Act 1996 and in regulations,1 originates in legislation enacted 20 years ago — the Education Act 1981 — and retains many of its key elements.
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References
Act Part IV and the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 (SI 2001/3455).
Warnock (Mary) Chair, Special Educational Needs Cmnd 7212 (London: HMSO, 1978).
Audit Commission, Special Educational Needs — A Mainstream Issue (London: Audit Commission 2002), p. 2.
Introducing into the 1996 Act, new ss 316 and 316A and amending the Disability Discrimination Act 1995. As regards the general policy, see DfEE, SEN and Disability Rights in Education Bill Consultation Document (London: DfEE, 2000), Annex B, para 20. See also, Disability Rights Task Force, From Exclusion to Inclusion (London: DfEE/DRTF, 1999).
Act, s 313(2).
Department for Education and Skills, Special Educational Needs Code of Practice (London: DIES, 2001).
This is separate from the new duty to carry out assessments of persons above compulsory school age who have a learning difficulty and who are in the last year of schooling, introduced by the Learning and Skills Act 2000, s 140.
Special Educational Needs Code of Practice, supra note 4, p. 85, para 7.
Ibid., p. 2, para 8
Audit Commission (2002), supra note 3, p. 6. DfEE, Statistics of Education: Special Educational Needs in England: January 2000, Issue 09/00 (November 2000), p. 7. DfEE supra note 10, p. 12.
Audit Commission, supra note 3, p. 13, para 38.
See Audit Commission/HMI, Getting in on the Act — Provision for Pupils with Special Educational Needs — the National Picture (London: HMSO, 1992).
Supra note 10.
Audit Commission (2002) supra note 3, p. 11, para 31.
See 1996 Act, s 324(2) and the Education (Special Educational Needs) (Consolidation) Regulations 2001 (SI 2001/3455).
Act, s 324(5)(b).
Ibid., schedule 27: see below.
Audit Commission (2002) supra note 3, p. 13, para 38.
R v London Borough of Hillingdon ex parte Governing Body of Queensmead School [1997] ELR 331. See further H. Bines, `Special educational needs in the market place’, Journal of Education Policy (1995), 10(2), 157–171, 159.
Richardson v Solihull Metropolitan Borough Council and the Special Educational Needs Tribunal; White and Another v London Borough of Ealing and the Special Educational Needs Tribunal; Hereford and Worcester County Council v Lane [1998] E.L.R. 319 (C.A.), per Beldam LJ at 334H–335A.
Audit Commission (2002) supra note 3, p. 16, Exhibit 2.
DfEE (2000) supra note 10, p. 3.
Department for Education and Employment, Excellence forAll Children: Meeting Special Educational Needs (London: DfEE, 1997).
Audit Commission (2002), supra note 3, p. 21, para 55.
See N. Harris, `Liability under education law in the UK — How much further can it go?’, European Journal for Education Law and Policy (2001), 4, 131–140.
See generally, N. Harris, `Judicial Review and Education’, in T. Buck (ed) Judicial Review and Social Welfare (London: Pinter, 1998), 1–38; P. Meredith, `Judicial review and education’, in B. Hadfield (ed), Judicial Review: A Thematic Approach (Dublin, Gill & Macmillan, 1995), 67–98.
Provision for which is made by the Tribunals and Inquries Act 1992s 11, as amended by the Education Act 1993.
It was previously known as the Special Educational Needs Tribunal.
`Special Educational Needs and Access to Justice — the Role of the Special Educational Needs Tribunal in England and Wales’, in J. de Groof (ed) The Legal Status of Pupils (Kluwer, 1998), 177–194.
N. Harris, Special Educational Needs and Access to Justice (Bristol: Jordans, 1997).
[2000] ELR 109.
[1995] ELR 404; 2 AC 633; [1995] 3 WLR 153; [1995] 3 All ER 353; [1995] 2 FLR 276, HL.
[2000] ELR 499; [2000] 3 WLR 776; [2000] 4 All ER 504, HL.
For discussion, see supra note 26.
Special Educational Needs Tribunal Annual Report 2000–2001 (London: SENT, December 2001).
Section 3, inserting s 332B into the 1996 Act.
Ibid.
Queensmead case, supra note 20.
R y Cumbria County Council ex p NB [1996] ELR 65, QBD.
R y Brent and Harrow Health Authority ex p London Borough of Harrow [1997] ELR 187. 42 R y London Borough of Barnet ex p G [1998] ELR 281 QBD and CA. The court held that the tribunal’s order applied from the latter date.
R y Wandsworth London Borough Council ex p M [1998] ELR 424, QBD. The court held that on the facts the LEA could not reasonably have concluded that the teacher they appointed had the necessary experience. See also R y London Borough of Brent and Vassie ex p AF [2000] ELR 550.
Section 336B, added by the 2001 Act. The prescribed period is to be prescribed in regulations. So far, only the Special Educational Needs Tribunal (Time Limits) (Wales) Regulations 2001 (SI 2001/3982) have been made.
Special Educational Needs and Disability Tribunal (General Provisions and Disability Claims Procedure) Regulations 2002 (SI 2002/1985), regs 3 and 5.
Special Educational Needs Tribunal Regulations 2001 (SI 2001/600), reg 7(4) (as substituted by the Special Educational Needs Tribunal (Amendment) Regulations 2002 (SI 2002/2787) reg 5).
Educaiton Act 1996 s 312.
See further Ann Blair, `Rights, duties and resources: the case of special educational needs’ (2000) 12: 3 Education & the Law 177–193; S. Riddell et al., The Justice Inherent in the assessment of Special Educational Needs in England and Scotland (Edinburgh: University of Edinburgh, 2001).
R y East Sussex County Council ex p T [1998] ELR 251; ex p Tandy [1998] EdCR 206, HL.
Act, s 316 and Sched 27 para 3 (below).
Act s 9 (general principle of adhrence to parental wishes as regards the education of their children) and UK reservation to Article 2 Protocol 1 ECHR.
`Special educational needs policy and choice’, in M.J. McLaughlin and M. Rouse (eds), Special Education and School Reform in the United States and Britain (London: Routledge, 2000), 126–146.
Ibid., p. 141.
Ibid.
R y Portsmouth City Council ex parte Faludy [1999] ELR 115, CA, which concerned an intellectually gifted child who, at the age of 15, won a place at Cambridge University; the Court of Appeal held that the LEA had no duty to support his education under the 1996 Act Part IV. The court held that because the Education Act 1996 states that `nothing in this Act confers any functions with respect to higher education’ (s 1(4)), Part IV of the Act (concerning special educational needs) could not apply in respect of a person’s attendance at a university.
R y Secretary of State for Education ex p C [1 996] ELR 93; R y Portsmouth City Council ex p F [1998] ELR 619.
R y Hampshire Education Authority ex p J (1985) 84 LGR 547, QBD.
R y Lancashire CC ex p CM (A Minor) [1989] 2 FLR 279, CA.
G v London Borough of Barnet and the SENT [1998] ELR 480.
G v Wakefield Metropolitan Borough Council, 29 January, 1998 (unreported).
R v London Borough of Lambeth ex p MBM [1995] ELR 374; City of Bradford Metropolitan Council vA [1997] ELR 417, QBD.
Bromley London Borough Council v Special Educational Needs Tribunal [1999] ELR 260, CA.
Ibid., at 296E.
Ibid., at 295G–296A.
Supra note 6, p. 49, para 8.
R y Lancashire County Council ex p CM (A Minor) [1989] 2 FLR 279, CA.
Education Act 1996 ss 323(1), (2) and 324(1).
[2000] ELR 660.
64 DR 188.
O v London Borough of Harrow and Another, 12 July 2001 [2001] EWHC Admin 542.
Under s 325 of the 1996 Act.
Especially R y Secretary of State for Education and Science ex p Lashford [1988] 1 FLR 72, CA.
R v Secretary of State for Education and Science ex p L [1988] 1 FLR 72 and R v Isle of Wight County Council ex p RS [1993] 1 FLR 634.
Education Act 1996, s 324(3)(b).
Education Act 1996, s 324(5).
On the meaning of `suitable arrangements’, see R v Governors of Hasmonean High School ex p N and E [1994] ELR 343, CA; G v London Borough of Barnet and the Special Educational Needs Tribunal [1998] ELR 480, QBD; White and Another v London Borough of Ealing and the Special Educational Needs Tribunal; Richardson v Solihull Metropolitan Borough Council; Solihull Metropolitan Borough Council v Finn and the Special Educational Needs Tribunal [1998] ELR 203, QBD; and R v London Borough of Hackney ex p GC [1995] ELR 144, QBD and [1996] ELR 142, CA.
Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 (SI 2001/3455), Sched between Sched 2.
Special Educational Needs Code of Practice (2001), op. cit., p. 37, para 8.
[1992] 1 FLR 377.
Re L [1994] ELR 16 at 22, per Leggatt LJ, CA.
See Joyce v Dorset County Council [1997] ELR 26; C v SENT [1997] ELR 390 and B v Isle of Wight [1997] ELR 279, QBD.
R v Cumbria County Council ex p P [1995] 337 at 348D—E; J v Devon County Council and Strowger [2001] EWHV Admin 958.
L v Clarke and Somerset CC [1998] ELR 129, QBD, per Laws J at 136, applied in H v Leicestershire County Council [2000] ELR 471, QBD; S v City and Council of Swansea [2000] ELR 315, QBD; R (on the application of W) v Bedfordshire County Council ex p B [2001] ELR 645, QBD; E v Rotherham Metropolitan Borough Council [2002] ELR 266.
E v LB Newham and SENT [2002] ELR 453, QBD, at paras 36 and 37.
E v Flintshire CC and the SENT [2002] 378, QBD.
L v Hereford and Worcester County Council and Hughes [2000] ELR 375, QBD; L v Worcestershire County Council and Hughes [2000] ELR 674, CA. See also Education Act s 316 above.
Act, Sched 27 para 3(3).
See ibid., s 316A(4).
B v London Borough of Harrow [2000] ELR 109.
R v Chair of Governors and Head Teacher of A and S School ex p T [2000] ELR 274.
Surrey County Council v P and P [1997] ELR 516, QBD, per Kay J at 523C.
Which means the cost for which the LEA itself would be responsible: S v Somerset County Council, 25 July 2002, Administrative Court (unreported).
S and S y Bracknell Forest Borough Council and the Special Educational Needs Tribunal [1999] ELR 51, per Scott Baker J.
W-R y Solihull Metropolitan Borough Council and Wall [1999] ELR 528 at 543D—E.
C v Buckinghamshire County Council and the Special Educational Needs Tribunal [1999] ELR 179, CA, per Thorpe LJ at 189F—G.
Oxfordshire County Council y GB and others [2002] ELR 8, CA.
PD and LD y United Kingdom (1989) 62 D.R. 292; Graeme v United Kingdom (1990) 64. D.R. 158; Klerks y Netherlands (1995) 82 D.R. 41. See also W and KL y Sweden (1983) Application No 14688/83, Simpson y United Kingdom (1989) above; Cohen y United Kingdom (1996) 21 E.H.R.R. CD 104.
L y Hereford and Worcester County Council and Hughes [2000] ELR 375.
Ibid., at 384D—E.
[2002] ELR 704, QBD.
[2002] ELR 441, QBD.
See for example Lords Slynn and Clyde in Phelps y London Borough of Hillingdon [2000] ELR 499 at 514D and 533D—E, respectively.
O y London Borough of Harrow and Sherwin [2002] ELR 195, CA, per Sedley LJ at para 30.
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Harris, N. (2003). Judging Special Educational Needs: The Contribution of the Courts to the Developing Law of Special Educational Needs in England and Wales. In: De Groof, J., Lauwers, G. (eds) Special Education. Yearbook of the European Association for Education Law and Policy, vol 5. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-3050-1_3
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