Newsflash - SEN and the risks of judicial review

Changes to the SEN framework came into force on 1 September this year under the Children and Families Act 2014. There have been reports, however, that due to short timescales and guidance on the new system being produced late in the day, some local authorities and schools were not ready for the September deadline and are still not ready. As a result, they run the risk of facing judicial review.

Judicial review is a way for parents (or other parties in other cases) to challenge a public body about its failures. Public bodies, in this case, include state maintained schools, academies, independent schools and colleges. If there has been a failure by a local authority, school or college in its obligations under the new SEN framework, parents can bring judicial review proceedings against them.

By 1 September, local authorities were to have put in place transitional arrangements for the changes, produced a ‘Local Offer’ which sets out information about the provisions which are expected to be available across education, health and social care, provided information on ‘personal budgets’ for SEN education provision, have co-ordinated assessment processes and started using a new format for statements, which are now a combined Education, Health and Care Plan (EHC Plan) covering the young until the age of 25 (previously this has just been until the age of 16) and which will cover health and social care needs as well as special educational needs.

Clearly this is a lot for local authorities to be managing, and to be putting in place quickly, particularly when budgets are being cut.

What next?

For schools and colleges, we are anticipating that the risk of judicial review will be much lower. While changes still need to be implemented by schools and colleges, they seem to be coping with the changes much better.

Plus in most cases parents would have to exhaust the SEND tribunal system or mediation first, before they can move on to judicial review proceedings. Add to that the high cost of judicial review and the potential of having to pay the school’s or college’s costs if they are not successful, and we may find that in many cases the process, expense and risks for parents may just be too much.

Having said that, legal aid is still available for judicial review and if a parent is entitled to that assistance, there will be little risk for them in terms of expenses and costs.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.