by Tracey Bicheno, Partner, Company Commercial and Education

Having a child, sibling or adult with additional or special needs can be difficult for all concerned, including for schools and other providers – and not least for the person themselves.

It might involve difficulties which are caused by genetic issues or have been acquired at or result from birth, from an accident or other acquired injury.

If those needs are ‘invisible’ or undiagnosed, parenting and family skills might be especially scrutinised. The child or young person concerned may be wrongly labelled as naughty, poorly behaved, lazy or lacking in certain skills.

Relevant current needs may not have been diagnosed, may have been misdiagnosed or may need to be re-assessed. This may require professional assessments and reports from educational psychologists, speech and language therapists, occupational therapists, clinical psychologists and psychiatrists, medical reports, or reports from other specialists.

A fostered or adopted child may turn out to have difficulties which require support.

The EHCP option and Special Needs Tribunal (SENDIST)

Until the age of 25, a child or young person may be eligible for an Education, Health and Care Plan (‘EHCP’) from your local authority. As the name suggests, this may cover educational needs, social care needs and health needs.

First, it may be necessary to request an Educational, Health and Care Assessment. However, the relevant local authority may refuse to assess needs or refuse to issue or amend an EHCP. It may be necessary to amend draft EHCPs, appeal final EHCPs to the Special Needs Tribunal (SENDIST) and prepare for annual reviews of EHCPs.

Sometimes a pupil or young person is discriminated against because of their special needs and this might also give rise to an appeal by parents to SENDIST, against the school or local education authority. Sometimes, parents may have successfully sued the relevant health authority for negligence at or resulting from birth, but the future educational needs (and associated costs) of the child may not also have been considered or provided for.

Individuals may be trying to obtain, maintain or appeal a place at a suitable school, 1:1 support and necessary therapies, such as speech and language, occupational therapy, physiotherapy or for sight or hearing impairment or similar needs.

This may be for a very wide range of additional or special needs, including for example dyslexia, dyspraxia, dyscalculia, autistic spectrum (ASD) and other disorders including Asperger Syndrome, attention deficit and hyperactivity disorders (ADD and ADHD), genetic disorders including Down Syndrome and other syndromes, brain injury and disorders including cerebral palsy, as well as physical disabilities. It may also include difficulties with speech and language, sensory needs and motor skills.

Education may be in mainstream local authority schools or special schools, or in the independent sector (including specialist schools), as well as in colleges of further education (mainstream or specialist) and university.

Social care may be needed to help families to cope or to have a break and/or when a child legally becomes an adult at age 18 onwards, to help to transition to adulthood with more independence and perhaps to live with support.

Supporting your child

When appropriate, it might be preferable to have a direct payment from your local authority, so that you can manage the support which is required for your child or adult child yourself. This might involve the recruitment and employment of personal assistants. It may be more appropriate when the courses and facilities offered by the local authority do not meet the relevant needs or where a bespoke 1:1 approach is required. Local authorities publish their ‘local offers’, which set out their preferred providers and courses which are available, from time to time.

From the age of 18, it might also be necessary to consider Lasting Powers of Attorney on behalf of any adult with mental capacity, so that you can help to manage finances and health matters and care.

You may also be entitled to various benefits such as Carer’s Allowance or Carer’s Credit and your adult child may be eligible for Personal Independence Payments and Employment and Support Allowance (‘ESA’) – if in receipt of ESA other assistance may also flow, such as severe disability premium and/or Housing Benefit for a supported living placement. (If the affected person is of state pension age, they may be entitled to Attendance Allowance instead of Carer’s Allowance or Carer’s Credit being payable to a carer).

Please note that Valemus Law is not a legal aid provider and there is always a cost/benefit analysis to be considered when looking at spending money on legal help in these areas:

  • How old is the child or young person?
  • Have their current needs been accurately assessed?
  • How much and what kind of support have they been assessed as needing?
  • How much is that support likely to cost?
  • How long is it likely to be needed for?
  • How much evidence is available or required to make applications for any form of support?

It may be that you are in the very early stages of considering any of this, including any potential process to obtain support, including an EHC Assessment, or an EHCP. You may need to appeal against the refusal to issue an EHCP, or to maintain an EHCP, or the contents of an EHCP or may need help with the annual review of an existing EHCP.

You may also need help with preparation for and attendance at meetings with schools and local authorities – or to apply for relevant state benefits.

If you would like to discuss any of the issues raised here, please contact Tracey Bicheno, who has considerable experience in these matters.