Education Law Solicitors

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Case against a Welsh Local Authority for an Independent Provision

We have recently acted for parents who were forced to bring Tribunal proceedings against their Local Authority. Unfortunately for the parents in question, their Local Authority had refused to recognise the severity of their son’s Special Educational Needs for some time and also failed to provide appropriate provision for his needs to be met. Initially, we were instructed in 2018 to submit a request for a Statutory Assessment. Despite having overwhelming evidence which proved that their child desperately required a Statutory Assessment, the Local Authority refused to proceed with the request. To justify their decision, they confirmed that in their opinion, the child’s needs could be met by the schools resources and therefore it was not necessary for the Local Authority to assess the child’s needs any further.

We assisted our clients by way of appealing to the Special Educational Needs Tribunal in Wales against this decision and a Tribunal hearing was thereafter held, in which we were successful. The specialist Tribunal Panel ordered the Local Authority to conduct a Statutory Assessment. The Local Authority proceeded to complete their assessment and after the 10-week period, they refused thereafter to issue a Statement of Special Educational Needs. We again proceeded to lodge an appeal to the Special Educational Needs Tribunal immediately against this wrongful decision. On this occasion, the Local Authority conceded the second Tribunal appeal and agreed to issue a Statement for the child without the case having to progress to a hearing.

Thereafter, a final Statement of Special Educational Needs was issued. Part 2 of the Statement failed to provide an accurate description of the child’s difficulties, Part 3 failed to provide the child with any appropriate additional support in order for his needs to be met and Part 4 named an entirely inappropriate placement, namely a maintained mainstream school.

It was very unfortunate for the parents in question as they had to appeal at every stage of the process and continually fight for their child’s Special Educational Needs to be recognised and also appropriately supported by their Local Authority.


The child in question had a diagnosis of Autistic Spectrum Disorder and in addition had severe social communication and sensory processing difficulties. The combination of these difficulties made accessing the curriculum a challenge for him and this was reflected in the lack of progress being made.

It was highlighted throughout the case that the child in question had significant difficulties. He showed signs of behavioural differences from as early as his nursery years and his teachers raised concerns for many years regarding his behaviour. It was noted that the child had very specific routines and was sometimes difficult to manage and struggled with his attention. The child had become increasingly overwhelmed within his school environment in recent years and this was noted by her teachers. Progress had simply not been made for many years and it was very evident that a maintained mainstream school could not meet need.

The parents instructed an Educational Psychologist to assess their child and the findings helped to confirm to the Tribunal exactly what the child’s strengths and weaknesses were and ultimately confirmed that the child was cognitively able and should therefore be capable of making academic progress. Furthermore, the Educational Psychologist recommended that due to the nature of his difficulties, the child be taught in small class sizes at all times and also advised that he needed specific help with literacy to improve his reading accuracy, fluency, comprehension and writing skills. The Educational Psychologist concluded that it would be very difficult for the child to make expected progress within a maintained mainstream school environment. This was because he had not been making progress at his primary school for many years, despite the additional support and care of the school. The child in question was also due to attend secondary school in the following year and this was a concern throughout the case.

The Statement of Special Educational Needs

The Statement of Special Educational Needs issued by the Local Authority required significant improvement. Part 2 of the Statement of Special Educational Needs failed to describe the child’s needs in an accurate manner. The Local Authority did not agree to include all of the child’s Special Educational Needs within Part 2 as they were of the opinion that the child did not have Specific Learning Difficulties. There was no reference to any Speech and Language Therapy advice or Occupational Therapy advice that the parents had already obtained via a private Speech and Language Therapist. Finally, there was no reference to the Educational Psychologist’s findings regarding the child’s cognitively ability and weaknesses. The Local Authority ultimately refused to engage with the evidence provided by the parents which meant that the final Statement was not a legally appropriate document at all.

The parental preference was for the child to transfer to an independent provision within Wales and one that has expertise in supporting young children with Special Educational Needs. This provision was able to provide a smaller class environment as recommended by the Educational Psychologist and the child would also be able to continue in this provision for his secondary school years. At this provision, he would also have access to onsite Speech and Language Therapy and Occupational Therapy provision. It was clear that the child could not remain within a maintained mainstream school and furthermore, transfer to a maintained mainstream secondary school in due course given the severity of his Special Educational Needs and his lack of progress.


Despite actively encouraging the Local Authority to concede this case, they did not do so and a hearing was eventually held. The Tribunal confirmed that Part 2 of the Statement did not provide enough detail regarding the child’s Special Educational Needs. The Tribunal panel confirmed that it was difficult to understand who the child really is and what his needs were on the basis of the original Statement of Special Educational Needs issued by the Local Authority. The Tribunal panel also raised concerns regarding the Local Authority’s failure to reflect the findings of the expert evidence within Part 2.

The Local Authority’s witness did not accept that the child was dyslexic or that he had Specific Learning Difficulties, this is despite the parents’ Educational Psychologist confirming a different view. The Local Authority’s witness confirmed that in her view the child was making progress and while he had some weaknesses in some areas, she did not see any evidence to support a diagnosis of Dyslexia. Ultimately, the Local Authority dismissed the evidence of the Educational Psychologist without introducing any supporting evidence of its own to challenge this evidence. This is something we see quite frequently and the Tribunal confirmed that the evidence before them supported that the child had Specific Learning Difficulties and this was thereafter reflected within the Statement of Special Educational Needs.

In regards to Part 3, the Local Authority were of the opinion that the child could be taught within a maintained mainstream secondary school where there would be no small class sizes and the child would instead be supported by way of additional support in the form of a teaching assistant for at least 10 hours minimum. This was not the parents’ desired position nor was it the position of the experts instructed by parents. The evidence submitted by the parent’s experts confirmed that the child required small class sizes at all times, to be taught by experienced and trained teachers and to be taught alongside an appropriate peer group.

The Tribunal confirmed that in their opinion the child only just coped in primary school and as a result, they further confirmed that in their opinion, he would significantly struggle within a large maintained mainstream secondary school. They concluded that the child needed to be taught in a calm environment and one that is able to provide him with a small class size.

In relation to Part 4 of the Statement, the Local Authority accepted that the parental preference school could meet the child’s Special Educational Needs. They did however argue that the maintained mainstream school being suggested by the Local Authority was also able to meet the child’s needs and that a placement at the parental preference provision would amount to unreasonable use of public expenditure. This is an argument we see used very often by Local Authority’s and when this argument is used, it is necessary to determine the suitability of the provisions in question.

After considering the evidence before them, the Tribunal ultimately concluded that the child required a small and calm environment and whilst the maintained mainstream school being suggested by the Local Authority could offer relatively small class sizes, it would not offer the child a peer group with a similar cognitive ability. Therefore, all of the essential elements of an educational setting that the child ultimately required were not available within the maintained mainstream school. The Tribunal thereafter confirmed that the parental preference school would be named in Part 4 of the Statement of Special Educational Needs.


We were instructed by parents two years prior to the final hearing taking place and parents were very unfortunate in the sense that the Local Authority refused their requests at each stage of the process. They initially refused to complete a Statutory Assessment of the child’s Special Education Needs but after being taken to Tribunal they were forced to complete that Assessment and thereafter decided after the assessment, not to issue a Statement of Special Educational Needs. The parents thereafter lodged an appeal against this decision which the Local Authority eventually conceded. Even after many months of trying to fight for their child’s special Education Needs to be recognised and supported by way of a Statement, the Local Authority issued a Statement of Special Educational Needs that was weak and did not appropriately support the child’s needs. With the assistance of HCB Solicitors, the parents lodged their final appeal against the contents of the Statement and were successful at the Tribunal hearing.

It is unfortunate that the Local Authority conducted the appeal in this manner but the Tribunal were ultimately very sympathetic towards the parents and were aware that the Local Authority had dealt with matters poorly. Thankfully, the parents were supported by specialist solicitors and also independent experts by way of an Educational Psychologist, Speech and Language Therapist and an Occupational Therapist to navigate them through the process. Despite a turbulent two-year period, the child is now happily placed within the parental preference school. After many years of being failed by the system, he is now taught within a very successful independent provision that has SEN expertise, taught in small class sizes and by experienced teachers, has direct Speech and Language Therapy and Occupational Therapy provision and 1:1 additional numeracy and literacy sessions, all of which is fully funded by the Local Authority.

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