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15 years of stammeringlaw 1999-2014

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These pages only apply to England and Wales.

Special educational needs

The framework for children with special educational needs (SEN) can be valuable where a stammer is causing concern. The British Stammering Association has extensive resources on the SEN framework as it relates to stammering.

SEN framework in outline

The SEN framework is a framework to support a child in school who has 'special educational needs'. This will often include a child who stammers (below Who has special educational needs?).

Support under the SEN framework will normally be resolved in informal discussions with the school (see Resolving disputes). The major resource on getting support for a child who stammers under the SEN framework (or otherwise) is the British Stammering Association's Expert Parent website.

Largely non-legal, as regards stammering

In any event, in the context of stammering, the SEN framework is largely 'non-legal': it is not something one can readily complain about to a tribunal. In contrast, rights under the Equality Act, such as failure to make reasonable adjustments, can be taken to a tribunal. See below Tribunal claims.

Code of Practice

The most important legal document for the SEN framework is the SEN Code of Practice 2001 (link to education.gov.uk). This Code is not legally binding, but schools, local education authorities etc must have regard to it. There are some legal provisions underpinning the Code and SEN framework: see below Some of the legal provisions.

Graduated response

The SEN framework is based on graduated response. For some examples of the following in relatlon to stammering (in primary school), see What happens when the SEN Code supports your child? (link to BSA's Expert Parent website).

'Differentation'

These are measures before the child is put on the SEN register. It may be described as Wave 1, Wave 2.

School Action

Here the child will be on the SEN register, and there will be an individual action plan (IEP) setting out strategies to be used to enable the child to progress.

An advantage of the child who stammers being placed on the SEN register is that specific measures are taken and monitored in order to deal with the stammer. Being on the register may also help in getting adjustments (eg extra time) in exams, such as GCSE modern langauage orals.

School Action Plus

This is where School Action is not sufficient and specialists from outside the school are involved, most likely (in this context) a speech and language therapist.

Assessment and Statement

Where this school-based provision is not sufficient, the local education authority (LEA) can make a statutory assessment and, if it so decides in the assessment, make a statement of the child's special educational needs. This will be appropriate where the special educational provision cannot be met from the school's own resources. See below Assessment and statementing.

Some of the legal provisions

Who has special educational needs?

'Special educational needs'

This is defined in s.312 Education Act 1996. A child has 'special educational needs' if he or she has a 'learning difficulty' which calls for education additional to or otherwise different from that generally provided in mainstream schools. (There is a different test for a child under two.)

'Learning difficulty'

A child has a 'learning difficulty' if he or she:

The second of those - disability hindering the use of educational facilities - is the most likely to be relevant to a child who stammers.

Catering for special educational needs

Under s.313 Education Act 1996, local education authorities and maintained schools should 'have regard to' the provisions of the SEN Code of Practice 2001 (link to education.gov.uk).

S.317 Education Act 1996 requires various schools to "use their best endeavours, in exercising their functions in relation to the school, to secure that, if any registered pupil has special educational needs, the special educational provision which his learning difficulty calls for is made..."

Those sections do not apply to academies. The current model contract for an academy should impose equivalent SEN obligations on the academy (s.1 Academies Act 2010). However, many academies may operate under older contracts.

Assessment and statementing

For most children who stammer, assessments and statements are inapplicable. A stammer alone is not normally enough for a child to receive a statement. That would usually require some further impairment, such as a cognitive impairment.

I therefore do not generally deal with assements and statementing here. See further below Tribunal claims.

Whether a statement should be made is discussed in Chapter 8 of the SEN Code of Practice 2001.

"The LEA will make this decision [i.e. whether the nature of the provision necessary to meet the child's special educational needs is such as to require a Statement] when it considers that the special educational provision necessary to meet the child's needs cannot reasonably be provided within the resources normally available to mainstream schools ...in the area."
Para 8.2 SEN Code of Practice 2001 (link to education.gov.uk), as quoted in para 28 of NC & DH v Leicestershire CC (link to bailii.org).

Importance of therapy being 'educational' provision in a statement

Where a statement is being drawn up, parents will want to ensure that speech and language therapy is included in Part 3 of the statement (educational provision) rather than Part 6 (non-educational provision). This is to try to ensure that there is an obligation to provide the therapy.

The Code of Practice (at paras 8:50-8:51) says that, whilst prime responsibility for speech therapy services lies with the NHS, where the NHS does not provide therapy specified as "educational provision" ultimate responsibility for ensuring its provision rests with the LEA. Parents should normally be able to achieve this treatment of speech therapy in the statement; para 8:49 says:

...since communication is so fundamental in learning and progression, addressing speech and language impairment should normally be recorded as educational provision unless there are exceptional reasons for not doing so."
Para 8.49 SEN Code of Practice 2001 (link to education.gov.uk)

For an example of a case on this, see R vs Lancashire County Council ex parte M (1989) (link to ipsea.org.uk).

For more generally: Part 3: Special Educational Provision (link to asset-gb.org).

Tribunal claims

Specified disputes in relation to assessment and statementing can be taken to the First-tier Tribunal (formerly SENDIST) in England - links to that and other tribunals are at Schools: Resolving disputes:Tribunals.

However, most children who stammer will not have the level of need for assessment and statementing to be relevant (see above Assessment and statementing). Children who stammer and who are on the SEN register will normally be at the level of School Action, or School Action Plus.

So, in general, disputes on the SEN framework as regards stammering are not likely to be such as to go to a tribunal (at least in England). How far there may be scope for a legal claim in a particular instance - whether by way of judicial review, seeking an assessment (potentially a tribunal matter), or otherwise - would be a matter for specialist advice.

In contrast, claims in respect of rights under the Equality Act 2010 can be taken to a tribunal, though it cannot award financial compensation.

Links

Proposed changes on SEN

The special educational needs rules are currently being reformed. Following a Green Paper and draft legislation, the Children and Families Bill 2012-13 started its passage through Parliament in February 2013

What will also be important for stammering is the revised Code of Practice, which is not yet available.

The British Stammering Association (www.stammering.org) is working with the CommunicationTrust charity to try and ensure that the Bill meet the needs of children with communication difficulties, including stammering. Services for children who stammer will in future rely largely on what will be called the Local Offer - but at the moment (Feb 2013) the Government appears unwilling to give guarantees of a core standard for this. The concern is that without a core standard, we will increasingly see some areas refusing to offer services for school-age children who stammer.

The IPSEA News page is a good source of comment on the proposals. Initial IPSEA comments on the February 2013 Bill: www.ipsea.org.uk/news/changes-to-sen-law/children-families-bill-.aspx

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Last updated 5th February, 2013