IPSEA – FAQS ABOUT STATEMENTS
Statement FAQ 8
“The Local Authority have sent us a proposed statement on Emily,
our daughter, which lists speech and language impairment as one of
her special educational needs under Part 2, but then lists the speech
therapy provision for her under Part 6 as “Non-educational provision.
“Surely it should be included under Part 3 as “special educational
provision”?
We had a meeting with the officer to discuss the proposed statement
but she was not convinced that there was any need to change it. She
just kept telling us that we would be able to appeal to the Tribunal if
we weren’t happy. But surely parents shouldn’t have to appeal to the
Tribunal just to get the LA to write a statement properly?”
The first step
You are right in saying that it should not be necessary to have to go through
an appeal just to get the LA to write their statement in accordance with the
law. However, even though it should not be necessary, it often is!
As your daughter’s statement is still at the proposed stage, it might be worth
raising the issue in writing with the Director of Children’s Services. You can find
out who this person is for your LA by clicking on the following link. . In your
letter, set out the grounds for believing that the statement has not been
properly written and ask for it to be amended. Your letter could say something
like this:
To: The Director of Children’s Services
Dear Sir or Madam,
We are writing to request that you amend the proposed statement of
special educational needs on our daughter on the grounds that it is
not written in accordance with the law. Emily’s need for speech
therapy is educational, not medical and this is confirmed by the fact
that the statement outlines her speech and language difficulties
under Part 2, headed ‘Special Educational Needs’.
As you will be aware, following the court ruling in the ‘ex parte E’
case, Part 3 of a statement must contain a reference to provision to
meet any need identified in Part 2. Would you please amend the
statement to bring it in line with the law, removing the reference to
speech therapy in Part 6 and specifying the speech therapy provision
as ‘special education provision’ in Part 3.
If you are not prepared to make the changes I have asked for, then
would you please finalise the statement immediately and I will
prepare my case for the Special Educational Needs Tribunal …
If that doesn’t work
If the LA finalise the statement without making the change you have
requested, then you should book a call with IPSEA’s Tribunal Helpline for
advice on preparing an appeal to the Special Educational Needs and
Disability Tribunal.
© IPSEA
September 2014
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IPSEA – FAQS ABOUT STATEMENTS
What the law says
Regulation 16 of the Education (Special Educational Needs) Regulations
2001 says:
"A statement shall (a) be in a form substantially corresponding to that
set out in schedule 2 to these Regulations; (b) contain the
information therein specified …"
Schedule 2of the Regulations, Statement of Special Educational Needs,
says:
"Part 3:Special Educational Provision [Here specify the special
educational provision which the authority consider appropriate to
meet the needs specified in Part 2]."
What the courts have said
In a judgment known as R v The Secretary of State for Education and
Science, ex parte E [1992] 1 FLR 377, the Court of Appeal ruled that Part
2 of a statement (‘special educational needs’) must set out all of the child’s
special educational needs identified during an assessment; and, that Part
3 of a statement must specify the provision required to meet each of the
needs identified in Part 2, whether that provision was to be made by the
LEA or by the child’s own school. (For more information on this judgment,
see Law and Guidance in depth – Duty to specify.)
The judgment in the case of R vs. Lancashire County Council ex parte M
[1989] 2 ELR 279 included this comment:
"To teach an adult who has lost his larynx because of cancer might
be considered as treatment rather than education. But to teach a
child who has never been able to communicate by language,
whether because of some chromosomal disorder…or because of
social cause…seems to us just as much educational provision as to
teach a child to communicate in writing."
You can read this case for yourself - you will find it under "Important Legal
Cases" under "Quick Links" on our website.
Another judgment, X & X v Caerphilly BC [2004] EWHC 2140 (Admin),
[2005] ELR 78, affirmed Paragraph 8:49 of the SEN Code of Practice
2001, set out below.
What the Code of Practice 2001 says
"Case law has established that speech and language therapy can be
regarded as either educational or non-educational provision,
depending upon the health and developmental history of each child.
It could therefore appear in either Part 3 or Part 6 of the statement or
in both. However, since communication is so fundamental in learning
and progression, addressing speech and language impairment
should normally be recorded as educational provision unless there
are exceptional reasons for not doing so." (Emphasis in the Code)
(Paragraph 8:49)
© IPSEA
September 2014
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IPSEA – FAQS ABOUT STATEMENTS
Postscript
It is only if speech therapy is specified as a special educational provision
under Part 3 of a statement that your child has a legal right to receive the
provision. This is because LAs have a strict duty to arrange the provision
set out in Part 3. They are entitled to get another body, such as the health
authority, to actually provide or pay for speech therapists. But if, for
whatever reason, the health authority won’t or can’t make the provision,
then the LA must do so.
If speech therapy is set out only under Part 6 of a statement as a noneducational provision, however, then no-one – neither the LA nor the
health authority – has a legal duty to make the provision a child needs.
© IPSEA
September 2014
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