Misinformation and misconceptions: Busting some SEND law myths

busting send law myths. with picture of unicorns

As many of you will know, half of the battle of getting support for your disabled child is getting people to listen to you. By people, I mean schools, professionals and your local authority - the people who are supposed to be there to 'help.' By 'listen' I don't mean just hearing, but really listening.

What happens however, is the people who should be there to help (often through no fault of their own) end up giving parents incorrect or, at best, confused information. They're often working from incorrect information themselves, or working from policies driven by budget cuts rather than the applying the law. This not only prevents parents from being able to find the right information, but actively discourages them from seeking professional help.  The law is very clear in this area, but the knowledge of exactly what parents are entitled to for their disabled child is not as widespread as it should be.

Finding the right information through the special needs jungle...

Parents are not experts in special needs and we don't expect them to be. A wise woman once taught me that 'special needs books aren't on the shelf with the baby books' and as such, parents often have to seek out what support they are entitled to through their own resources. What this means in practice, is that lots of parents go to the people who they think can help, but are instead given unreliable information where, for differing reasons, the truth has been lost 'somewhere along the way'.

In my job as a parental advocate, I hope to correct some of those wrongs, clarify the law and steer you onto the right path to get the support you need. Here's a few misconceptions that need myth-busting.

Busting a few myths of SEND law

1. Yes, you CAN get an EHC Needs Assessment (EHCN) and an EHC Plan for Dyslexia

Over the last few months I have been working closely with the British Dyslexia Association (BDA) and have met many parents who have really brought this concern to the fore. You can read my article which includes the test for an assessment here. The test for an assessment has not changed and dyslexia is a special educational need, so you have already satisfied half of the test for an assessment. However, parents are put off from applying for an Education, Health and Care Plan by the many people who tell them they 'cannot get one' for dyslexia. Instead parents end up funding independent and specialist school placements themselves or specialist dyslexia teaching (at a minimum) needlessly, thinking this is the only way they can help. You can get both and I have helped many parents do so. What you need to know is that it is possible. If you are in any doubt, apply.

2. Yes, dyslexia IS a 'special educational need.'

Worryingly, it has been brought to my attention that a number of local authorities have been publishing policies, specifically through their educational psychology services, where they have been claiming that dyslexia 'doesn't exist' or isn't a special educational need. This takes us back some 30 years, despite the incredible work some of the charities in this area have done to increase knowledge and awareness. Dyslexia IS a special educational need and any of you who encounter your local authority saying that they 'don't recognise dyslexia' should seek legal advice, as this is unlawful. What's more, it could leave your local authority subject to a judicial review claim. I would certainly be interested to hear from you if this senselessness is preventing your child accessing support.

3. Yes, you CAN get an assessment and an EHC plan for high-functioning autism

This is a complaint I hear time and time again and I am sure will be familiar to many of you. "Your child is clever so they don't need an EHCP,"or "Your child is achieving in line with their peers so there isn't a problem," or "They need to be two years behind to be assessed". Sound familiar? If your child has autism, like dyslexia, you have already satisfied half of the test for an assessment but again parents are put off applying in the first place. Paragraph 6.23 of the SEN Code of Practice is clear that:

"It should not be assumed that attainment in line with chronological age means that there is no learning difficulty or disability. Some learning difficulties and disabilities occur across a range of cognitive ability and, left unaddressed may lead to frustration, which may manifest itself as disaffection, emotional or behavioural difficulties." Paragraph 6.23 of the SEN Code of Practice

Apply. You have nothing to lose and everything to gain.

4. There is NO 'minimum criteria' for an EHC Needs Assessment

Many parents are also put off making a request for an assessment, because they either think it has to be the school that applies, or that they don't have time to complete the 20-page long form on your local authority's website. Perhaps you don't have the evidence they say that they require, or they say you can't be considered until you have an official diagnosis? That's a particular favourite.

Under s.36 of CFA 2014, parents can (and should) make the application. A one-page request is a valid request. You can send in the evidence you think may help now and any new information during the six weeks your LA has to consider your request. This is a valid application and your local authority must consider it.

There are no "minimum criteria."

5. Timescales matter.

I am going to do a separate post on the specific timescales you should be aware of, but essentially, timescales matter. This includes if your local authority is taking longer than the legally allowed time-frame to give you any decision (whether it's a change of school placement following an Annual Review; issuing an EHC Plan; transfer from a Statement of SEN; ceasing to maintain your child’s EHC Plan, etc.). Whatever their excuse, it isn't your fault. Legal timescales are there for a reason and allowing your local authority to exceed them is only denying your child the provision they require. Enforce your deadlines. If the local authority won't listen to you, find a solicitor (or contact on free legal advocacy sites such as IPSEA or SOSSEN) who will force them to do so via pre-action correspondence and threats of judicial review. You will be amazed to see just how quickly the decision will arrive.

Put yourself back in the driving seat.

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Hayley Mason
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Hayley Mason

SEND Lawyer at SEN Legal
Hayley Mason is a senior solicitor and Business Development Lead at SEN Legal, specialising in representing parents in cases around special educational needs and disability. She is a passionate advocate for parental rights, delivering free workshops and supporting local charities including as a corporate member of the Papworth Trust. She's also an avid Chelsea FC fan!
Hayley Mason
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