The special educational needs (SEN) framework can be valuable to support a child in England where their stammer is causing concern.
Outside England, there are different systems in other parts of the UK.
The SEN framework is a framework to support a child in school who has ‘special educational needs’. This often includes a child who stammers (below Who has special educational needs?). In fact the SEN framework applies from birth to age 25.
In the context of stammering, the SEN framework is largely ‘non-legal’, in the sense that 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. However there are reasons to seriously consider having a school provide support for a child who stammers under the SEN regime:
- The SEN Code provides a structure for assessing the child, planning in consultation with the parent and pupil (and hopefully a speech and language therapist) the adjustments, interventions and support to be put in place as well as the expected impact, implementing this, and reviewing its effectiveness. This “graduated approach” of assess, plan, do, review is set out in the SEN Code of Practice (below). The ‘plan’ here is not an EHC plan, discussed below.
- In secondary school this process should take into account the need to prepare for exams such as GCSE and A-levels. For adjustments (“access arrangements”) to be made in these exams, such as extra time for orals, the exam board will expect the exam adjustments to have been the “normal way of working” for that child on oral tasks in school for some time. See eg from para 4.2.5 in Access Arrangements and Reasonable Adjustments 2019-20 (jcq.org.uk) and my page (not yet properly updated) GCSE, A-levels and stammering.
A school may consider that “high quality teaching that is differentiated for individual pupils” (eg paras 1.24 and 6.37 of the Code) is an appropriate first response, so with some adaptions for the child’s stammer. However it may be better for parents to ask for a plan under the graduated approach above to focus on outcomes to meet the individual needs of their child, including developing oral skills for exams such as GCSE.
In a plan there is scope to blend academic outcomes with other outcomes that the pupil may see as more important, such as friendships and having other pupils behave well towards him or her. Note that the Code (eg para 6.32f) specifically identifies social and emotional difficulties as a broad area of need, as well as “communication and interaction” (para 6.28f).
Support under the SEN framework will normally be resolved in informal discussions with the school (see Resolving disputes in schools).
For practical strategies to support a child who stammers in school, see the links at Schools and disability discrimination for pupils who stammer>BSA resources.
One of those links is the British Stammering Association’s Expert Parent website (2009), which included SEN but is not updated to cover the 2014 Code. A 2016 mini-website from BSA on the new Code is currently offline – the summary above pulls a few brief points from that much more comprehensive resource.
There is helpful general guidance about the current 2014 Code on the IPSEA website www.ipsea.org.uk/Pages/Category/get-support .
The most important legal document for the SEN framework is the SEN Code of Practice 2014 (gov.uk). This Code is not legally binding, but schools, local education authorities etc must have regard to it (s.77 Children and Families Act 2014).
Where a pupil has special educational needs, s.66 Children and Families Act 2014 requires the governing body of a mainstream school etc to use its “best endeavours” to secure that the special educational provision called for by the pupil’s special educational needs is made.
Best endeavours here “means the same thing as ‘reasonable endeavours’, does not impose an ‘absolute obligation’ and, in principle, competing demands may be taken into account”: SC and MS v Worcestershire County Council (bailii.org), 2016, para 25.
‘Mainstream schools’ includes an academy that is not a special school (s.83(2)).
Under ss.20-21 Children and Families Act 2014 a child has “special educational needs” if he or she has “a learning difficulty or disability which calls for special educational provision to be made for him or her”, ie educational or training provision additional to or different from that made generally for others of the same age in mainstream schools in England or other places listed.
A child of compulsory school age or a young person has a “learning difficulty or disability” if he or she
- (a) has a significantly greater difficulty in learning than the majority of others of the same age, or
- (b) has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions (s.21(2)).
S.21(2)(b), disability hindering the use of educational facilities, is the most likely to be relevant to a child who stammers.
There is a different test for a child under compulsory school age.
EHC assessment and plan
A stammer alone is not normally enough for a child to receive an Education, Health and Care (EHC) plan, according to BSA guidance issued in 2016 (currently not online). Accordingly for most children who just have a stammer, an EHC plan is unlikely to be appropriate. For some children though, stammering may just be the outward manifestation of a more complex disorder for which an EHC would be appropriate. There is general guidance on the IPSEA website www.ipsea.org.uk/asking-for-an-ehc-needs-assessment .
However the “graduated approach” of assess, plan, do, review summarised above is appropriate for a child with SEN even though not entitled to an EHC plan. (The ‘plan’ in the graduated approach is different from an EHC plan.). Also the obligation on schools etc to use best endeavours to meet a child’s SEN needs, and other requirements such as involving parents and the child in planning, apply even though not entitled to an EHC plan.
Specified disputes in relation to Education, Health and Care (EHC) assessment and plans 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 for most children who just have a stammer, an EHC plan is unlikely to be appropriate (see above EHC assessment and plan). Therefore, 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 under the Equality Act 2010 can be taken to a tribunal, though it cannot award financial compensation.