Children with disabilities and children with special educational needs

Section 17 of the Children Act 1989 places a legal duty on children’s services departments to safeguard and promote the welfare of any child in need in their local area. They must promote the upbringing of all children in need in their families unless it is not safe to do so.

All disabled children are children in need under the Children Act 1989. And section 17(11) says that a child will be considered disabled if:

• They are blind, deaf or dumb (unable to speak because of a verbal impairment)
• They suffer from a mental disorder of any kind
• They are substantially and permanently handicapped by illness, injury or congenital deformity (a deformity present at birth).

Children’s services also have a duty to make provision for disabled children in their local area. This includes providing local services to:

• Minimise the effect on disabled children of their disabilities
• Give disabled children the opportunity to lead lives which are as normal as possible
• Support someone who is caring for disabled child by giving them breaks from caring for the child, where needed.

All of these duties are set out in schedule 2, paragraph 6 of the Children Act 1989.

Section 20 of the Children and Families Act 2014 explains that when a child or young person has special educational needs:

• They have a learning difficulty or disability, and
• As a result, they need special educational provision to be made for them.

A child or young person has a learning difficulty or disability if:

• They have a significantly greater difficulty in learning than most others of the same age
• Or, they have a disability and this prevents them from making use of the kind of facilities others of their age use in mainstream schools (and in post-16 education such as in colleges),
• Or, they have a disability and this makes it hard for them, to make use of those facilities.

Examples of learning difficulties and learning disabilities include:

• Mobility difficulties
• Emotional and behavioural difficulties
• Mental health conditions
• Communication difficulties
• Learning difficulties including dyslexia or diagnoses such as autism.

Explain the nature of the child’s disability.

Note down how the child’s health or development is suffering at present.

Perhaps talk this through with a family member or friend. What do they think would help?

Think about what difference having extra help will make.

How would this help the child to stay safe and to thrive?

Are there day to day examples that it would be helpful to share to paint a picture?

Will things get worse, for example?

Is there anything that will become too difficult to manage?

Local children’s services departments have their own measures for deciding which children in their area are enough ‘in need’ to get help and services.  The local threshold document should explain the measures used in the local area. Slightly different measures or ‘thresholds’ apply in different parts of England.

The threshold document (or the measures in it) may be called ‘eligibility criteria’ in some local areas.

The threshold document should be available on the council’s website. It should be included in the council’s local offer for disabled children and children with special educational needs. Or a copy of this can be requested from children’s services.

This can include details of other people involved with the child and family.  This may be family and friends.  It may be someone who works with the child such as a teacher or someone at a children’s centre. They may all have information about the extra help that might be needed.

The local authority must carry out an Education Health and Care (EHC) needs assessment if they believe a child’s:

• Special educational needs and/or
• Disability

may require more help than a mainstream school or college can normally provide.

This is known as special educational provision.

You can ask for an EHC needs assessment from your local authority.  The local authority must tell you within 6 weeks of your request if they are going to carry out an EHC assessment.

• The EHC needs assessment will help the local authority decide if your child needs an Education, Health and Care plan (EHC plan).

An EHC plan is a legal document that describes a child or young person’s special educational, health and social care needs. It explains the extra help that will be given to meet those needs and how that help will support the child or young person to achieve what they want to in their life.

The exact help offered will depend upon:

• The child’s needs, and
• What help the assessment of their needs says they require.

The plan should be:

• Written so that everyone can understand it
• Clear and detailed about the amount and type of support a child will get
• Explain how the support will help.

The local council (and the departments within it, including children’s services) has a duty to provide the help set out in the plan.

They have the right to challenge the following decisions:

• Not to go ahead with an EHC needs assessment
• Not to produce an EHC plan
• The support included in the EHC plan.

It is a good idea to raise any concerns about an EHC plan with the local council first.  The aim is to try to reach agreement.  If agreement can’t be reached then:

• The local council should share information about how the decision(s) can be challenged.
• The local Information, Advice and Support Service (IASS) can provide help to challenge the decision(s).

Note that a young person aged 16 or over can also challenge decisions on their own behalf.

For further information, advice and support about special educational needs see details of specialist organisations listed in the Education and special educational needs section on our Useful links page.