Making a Statement

For most of us, our children start school carrying the weight of all our hopes for their future, yet with luck they never realise what a nerve racking process it has been for their parents. However for some of us, we find, as our child goes through the system, that they don’t seem to be able to keep up as well as others or as well as we thought they would. Obviously the first thing to do is to have a word with your child’s teacher. They may be able to tell you if they think there are problems. But from time to time, you may feel that difficulties are not being noticed or addressed, and are then at a loss as to where to go for help.

M&D asked Elaine Maxwell of Maxwell Gillott Solicitors for professional advice


Elaine Maxwell, Maxwell Gillott Solicitors

Elaine Maxwell

Clearly you should stay on good terms with your child’s school and teacher wherever possible, but there are occasions when a child’s learning difficulties are not spotted. All the evidence shows that the earlier problems are identified and support put in place, the better for the child. For example a very bright but quiet child with dyslexia may simply be missed because they are using their general ability to find ways round their reading problems. This can work for a while but does not help them to make the best use of their abilities. Equally, a child with Asperger’s Syndrome may show problems in how they deal with other pupils and friends which don’t necessarily have an impact on their academic work; at least not at primary level.

It may be that the school is able to arrange for closer support within the classroom or structure the child’s work differently. The vast majority of special needs are in fact managed perfectly well in this way and resolve themselves over time with a bit of extra support from the school.

However, if it seems that things are not sorting themselves out or your child appears distressed, then you may consider arranging for them to be assessed by an independent expert such as an educational psychologist or speech and language therapist. Charities such as the British Dyslexia Association or National Autistic Society may be able to put you in touch with relevant experts although you will have to pay for this privately.

Solicitors specialising in education law will also be able to recommend suitable specialists depending on your child’s unique challenges.

If after this it seems that the sort of help your child needs is not of a type which is normally available in your local mainstream schools, then you may be able to get a Statement of Special Educational Needs for your child. This is only for children with the more significant needs (estimated at roughly 2-3% of the school population) but is an extremely important document as it gives you and your child rights to provision and support which can be enforced in law.

The first step in getting this is to ask your local authority if they will carry out an assessment of your child.

You should set out the reasons for your concern and say that you want an assessment under the Education Act 1996. The local authority then has 6 weeks to decide whether or not to assess your child – if they refuse, you will be given the right to appeal to an independent tribunal who will look at the case again. Many local authorities are refusing most requests for assessment as they are concerned about their rising bills for special needs provision. Do not let the initial refusal put you off – if you have good evidence, (preferably backed up by an independent report) you will stand a good chance of success.

After an assessment has been carried out the local authority will decide whether or not to issue a statement. Again you will have a right of appeal if they refuse to do this. If you do actually get a statement, you will need to make sure that it set out all of your child’s educational difficulties, and specifies in full detail exactly what provision they are going to make to meet your child’s needs. Most statements drafted by local authorities contain very vague statements which would be impossible to enforce in court, so it is really important to make sure the wording is correct.

If your child’s difficulties are so severe that you think they will need a specialist school you need to bear in mind that the annual cost of these in the most serious of cases can be greater than £150,000. Naturally any local authority has a duty to think hard before spending that sort of money, and it is usually only possible to get these sort of placements with very strongly worded appeals to tribunal and strong independent expert reports.

Legal aid is still available for special needs cases, but only if the parents’ income and assets are low. Unfortunately following government reforms to the legal aid system, this service is now only available from three organisations in England and Wales, of which we are the only firm of solicitors. But those law firms dealing with special needs will usually have arrangements for fixed fees for parents who are not eligible for legal aid.

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