Failing to assess SEN

The Upper Tribunal has handed down a significant ruling in refusal to assess SEN cases. Tom Cross explains why the judgment is likely to be relied upon by appellants.

In the important decision of the Upper Tribunal in NM v London Borough of Lambeth [2011] UKUT 499 (AAC), a parent successfully appealed the First-Tier Tribunal’s decision that a local authority’s failure to carry out a statutory assessment of her son under s.323 of the Education Act 1996 had been lawful.

Under section 323(1)-(3) of the Act, the question for the local authority is whether it is of the opinion that a child for whom they are responsible falls, or probably falls, within subsection (2) of that section. If it is of that opinion, then it is required by subsection (3) to make an assessment of his educational needs. A child falls within subsection (2) if he has special educational needs (which was not in dispute in the present case) and whether it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for.

The question here for the FTT had therefore been whether it was probably necessary for Lambeth to determine the special educational provision which any learning difficulty L had called for.

In the Upper Tribunal, Judge Mark found that it had been an error of law for the FTT to have made no reference in its decision to the fact that, as was accepted between the parties, there had been effort and instruction by the school in respect of the child that went beyond a level usually commensurate with provision through School Action Plus, and which had been funded from additional funding delegated to the school by the local authority.

The Judge referred to paragraph 7.35 of the Code of Practice on deciding whether to assess, which requires local authorities to pay particular attention to “evidence that where some progress has been made, it has only been as a result of much additional effort and instruction at a sustained level not usually commensurate with provision through Action Plus”. Here, the authority (and the FTT) had proceeded on the basis that the child’s needs were adequately being met at School Action Plus.

The UT held that this was not the test: “in considering whether to make an assessment, it appears to me that a local authority should consider what is appropriate and not just what is adequate” (see para 15: emphasis added).

This was on the basis that, notwithstanding the wording of s.323, the fact is that if and when an assessment comes to be made, what would be required by a local authority is advice as to the provision which is appropriate for a child in the light of the features referred to in paragraph 7 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001.

Were it otherwise one would “end up with a two tier approach in which the local authority only has to consider what is appropriate on an assessment if it has first decided that the existing provision is less than adequate rather than that it is not appropriate” (para 15).

Judge Mark also cast some doubt on the lawfulness of paragraph 7.34 of the Code of Practice, in which it is stated that the critical question is whether there is convincing evidence that, despite the school having, with the help of external specialists, taken relevant and purposeful action to meet the child’s learning difficulties, these difficulties remain or have not been remedied sufficiently and may require the LEA to determine the child’s special educational provision.

At para 16 the Judge said: “I am unclear how the requirement of convincing evidence can be reconciled with the ‘probably’ provision of s.323(2). It seems to me that what should be required is evidence sufficient to satisfy the statutory requirement and not evidence that goes beyond that” (para 16).

The full implications of the Judgment still remain to be seen. For the moment it seems set to become a cornerstone of appellant submissions before the FTT in refusal to assess cases.

Tom Cross is a barrister at 11KBW. This article first appeared in the set’s Education Law blog.