Education

In this guide:

Access to education and training

Every child should receive full time education from the age of 5 to 16.

Normally children will receive education and training at school. However, education is not limited to this setting. Providing the education is suitable to the child’s age, ability, etc. it could also take place:

  • at home;
  • at a pupil referral unit;
  • in a specialist unit such as a young offenders’ institution or in a psychiatric unit.

Special educational needs

A child may have special educational needs (SEN) if:

  1. compared to children of the same age the child has a significantly greater difficulty in learning; or
  2. the child has a disability which prevents access to educational facilities.

Action to be taken for children with special educational needs

A child’s parents, the child’s school or social workers can ask a Local Education Authority (LEA) to assess a child’s educational needs.

The assessment will involve education experts, such as a psychologist, meeting the child and carrying out some tests.

Assessment outcomes

Following a child’s assessment, a plan will be made to ensure that the child’s educational needs will be met.

The plan may provide for:

  • extra help to be provided to the child from within the school – School Action.
  • additional extra help to be provided to the child from within the school and possibly with the assistance of outside help brought into the school – School Action Plus.
  • a Statement of Special Educational Needs. This is a legal document which describes the child’s needs, states how the child should be helped and states which school the child should attend.

Action to be taken if the Local Education Authority (LEA) is being uncooperative

A Local Education Authority (LEA) might refuse to:

  • assess a child’s needs;
  • reassess a child’s needs;
  • issue a Statement of Special Educational Needs; and/or
  • change the school in a Statement of Special Educational Needs

If any of these circumstances arises, parents and carers (including foster carers) can appeal to a tribunal known as the Special Educational Needs Tribunal (SENDIST).

Disability discrimination

During a child’s education, they might encounter discrimination on the ground of their disability. It is against the law for schools to discriminate against disabled children in the following situations:

  • admissions
  • education and associated services, including:
    • school trips
    • the curriculum
    • teaching and learning
    • school sports
    • the serving of school meals
  • exclusions

Before being able to bring a claim for disability discrimination, the child must prove that they have a disability as defined by the Disability Discrimination Act 1995.

The Disability Discrimination Act 1995

Disability is defined as "a physical or mental impairment, which has a substantial and long-term adverse effect on a person's ability to perform normal day-to-day activities".

For example, if a child has problems with mobility, seeing or hearing, learning disabilities, mental health problems, epilepsy, AIDS, asthma, diabetes or a progressive condition such as multiple sclerosis, then he or she may be fall within the definition in the Disability Discrimination Act 1995.

A child may be discriminated against by a school in the following circumstances:

  • The child may have received less favourable treatment at school because of their disability.
  • The school may have failed to make reasonable adjustments for the child’s disability.

If either of these takes place, a parent or carer can make a claim to the Special Educational Needs Tribunal (SENDIST). Parents may wish to use the Disability Rights Commission’s (DRC) conciliation service to try and negotiate a satisfactory outcome.

Time limits

  • Claims to the Special Educational Needs Tribunal (SENDIST) should be brought within six months from the date when the alleged discrimination took place. This is extended by two months if the Disability Rights Commission’s (DRC) conciliation service has been used.
  • Disability discrimination claims in the Higher Education (H.E.) and Further Education (F.E.) sectors are brought in the County Court. Claims should be brought within six months of the alleged act of discrimination. This time limit will be extended by two months if the Disability Rights Commission’s (DRC) conciliation service is used.
  • If the claim relates to a qualifications body, the claim must be brought in the employment tribunal within three months of the act of the discrimination.

Parental choice in the child’s education

Children may have difficulty in attending the school or college of their parents’ choice. Every school has its own admissions policy which describes how it makes its admissions decisions.

If a school refuses a child’s admission, then the parent can appeal to an independent panel.

In Education law, the definition of parent and parental responsibility is far wider than the definition in the Children Act 1989. This means that an appeal can be made by:

  • any adult with whom the child lives; or
  • the child’s main carer - irrespective of the adult’s relationship with the child.

Consequently, foster parents and older siblings can bring an appeal for education admissions, exclusions and claims to the Special Educational Needs Tribunal (SENDIST).

School exclusion

A child can only be excluded from school on the ground of his or her behaviour.

If an incident takes place, the head teacher must investigate it fully.

Following the investigation, the head teacher has to decide whether:

  • the child acted in the way alleged, and, if so,
  • whether the child should be excluded for a fixed period of time (fixed term) or permanently.

Fixed term exclusion

A fixed term exclusion can be from 1to 45 days.

The maximum period of one fixed term exclusion is 15 days.

In any one academic year, a child can only receive a maximum of 45 days of fixed term exclusions.

Permanent exclusion

This method of exclusion can only be used as a last resort.

Appealing against school exclusion

Fixed term exclusion

Representations can only be made to the school’s governing body if a child has been excluded from school for more than five days.

In the first instance, an appeal against exclusion can be taken to the school governors.

There is no right of appeal to the Local Education Authority’s Appeal Panel against any fixed term exclusion.

Permanent exclusion

In the first instance, an appeal against exclusion can be taken to the school governors.

Thereafter, an appeal can be taken to an independent appeal panel.

Bullying

By law, every school is required to have an anti-bullying policy. This policy should clearly set out how the school tackles bullying.

If a child is being bullied and the school is not dealing with the matter or is not being helpful, then it is important that a copy of the anti-bullying policy is obtained from the school. The school should provide this.

It will then be possible to make a complaint to the school about its unhelpfulness.

How to make a complaint about a school’s failure to help tackle bullying

Every school should have a complaints policy. The policy should explain how a complaint can be made and who will be dealing with the complaint.

In some circumstances, it may be possible to bring a claim against a school in negligence if it persistently fails to help.

Human Rights

A child’s human rights could be affected by any of the above issues. Although, a child’s parents or carers generally have the right to challenge the Local Education Authority (LEA) and schools, Human Rights claims are always brought by the child through a litigation friend (normally the child’s parent or guardian).

For more information, please contact Yvonne Spencer at Fisher Jones Greenwood LLP on 01206 835241.

Useful organisations

ACE – Advisory Centre for Education

1c Aberdeen Studios
22 Highbury Grove
London N5 2DQ
Tel:   General Advice Line: Freephone 0808 800 5793 (M-F 2-5pm)
Tel:   Exclusions Information Line: 020 7704 9822 (24hr answer machine)
Fax: 020 7354 9069
www.ace-ed.org.uk

IPSEA – Independent Panel for Special Education Advice

6 Carlow Mews
Woodbridge
Suffolk IP12 1EA
United Kingdom
Tel: Advice line: 0800 0184016
Tel: Contact IPSEA: 01394 384711
Email (for information only, not advice): ipsea.info@intamail.com
www.ipsea.org.uk

ELAS – The Education Law Association

The Executive Officer
Education Law Association
33 College Road
Reading RG6 1QE
Tel: 01189 669866
Fax: 01189 669866
Email: Secretary@educationlawassociation.org.uk
www.educationlawassociation.org.uk

Fisher Jones Greenwood LLP

Norfolk House
23 Southway
Colchester
Essex CO2 7BA
Tel: 01206 578282
Fax: 01206 760282
www.fjg.co.uk/education/