Section 20 of the Children and Families Act 2014 provides a legal definition of special educational needs. The usual acronym for special educational needs is SEND, reflecting special educational needs and disabilities.
“(1)A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her.” SOURCE
The school may provide additional support but special educational provision – which brings additional legal protection – will require an EHCP. My page on getting an Education Health and Care Plan is here.
EHCP
Children with special educational needs may be educated at home. This includes when the child has an EHCP [Education Health and Care Plan]. Parents do not need to ask for permission. Read my page on taking a child out of mainstream school here. If the child is a pupil at a special school the rules are different; read my page on taking a child out of special school here.
The most recent statistics for Education Health and Care Plans derived from SEN2 data were published in June 2023. To find the number of home educated children with EHCPs, click to expand “Education, Health and Care plans at census date” where it says “4,300 children and young people were recorded as in Elective home education.”
When The EHCP Names A School
The fact that a school is named in Section I doesn’t mean that the child is automatically registered since it is only the parent who can register the child. See Elective Home Education Guidance for Local Authorities 2019 “8.10 When a home-educated child’s EHC plan names a school, some local authorities instruct the school to add the child’s name to its admission register without the parent’s agreement, with the result that the parent is committing an offence if the child does not attend the school. It is not lawful for a school to do this, and local authorities should ensure that both schools and their own staff know that. It is up to the child’s parent whether to arrange for the child to be registered as a pupil at the school” Read my page on school registration and the school roll here.
Equally, a tribunal directing a particular school to be named does NOT mean the child can’t be home educated instead, as indicated by the following case law which was made under previous SEN legislation but Part VI of the Education Act 1996 is unaffected. “The provisions of Part VI of the 1996 Act are such that for there to be a successful prosecution, a parent will not only not be sending the child to the school named in the statement or plan, but will be failing to cause the child to be receiving a sufficient education by another route. There is no obligation on a parent to send a child to the school named in the statement but there is an obligation to secure that the child is properly educated.”
Elective Home Education Guidance
My main page on the EHE Guidance is here. Below is a summary of the special needs chapter.
8.1 The parents’ right to educate their child at home applies equally where a child has SEN. This right is irrespective of whether the child has an Education, Health and Care Plan (EHC plan)
8.4 if the home education is suitable, the local authority has no duty to arrange any special educational provision for the child
8.6 If a school already attended by a child is a special school and the child is attending it under arrangements made by the local authority, the local authority’s consent is necessary for the child’s name to be removed from the admission register, but this should not be a lengthy or complex process and consent must not be withheld unreasonably
8.7 As with other children educated at home, local authorities do not have a right of entry to the family home to check that the provision being made by the parents for a child with special educational needs is appropriate, and may only enter the home at the invitation of the parents … Local authorities should not assume that because the provision being made by parents is different from that which was being made or would have been made in school, the provision is necessarily unsuitable
8.9 In some cases a local authority will conclude that the home education provision that is being made for a child with a EHC plan is not suitable. In such cases the procedure to be followed in s.437 of the Education Act 1996 is the same as for other children who are educated at home but are not receiving a suitable education, although the consideration
of suitability may well be more complex and need to draw on a wider variety of information, for example educational psychologist reports
8.10 When a home-educated child’s EHC plan names a school, some local authorities instruct the school to add the child’s name to its admission register without the parent’s agreement, with the result that the parent is committing an offence if the child does not attend the school. It is not lawful for a school to do this, and local authorities should
ensure that both schools and their own staff know that. It is up to the child’s parent whether to arrange for the child to be registered as a pupil at the school, and if the parent does not, the local authority should then consider whether a s.437(1) notice, and in due course a school attendance order, should be issued
Background Information
My survey of home education and special needs found that two thirds of home educated children with special needs didn’t have a statement or Plan; over a third had been home educated for more than 2 years; and three quarters of children had previously attended mainstream school.
The impact of problems at school can be devastating; school becomes impossible and parents feel they have no choice except to home educate. In some cases home education is perceived a stopgap, but even where a child returns to school, parents don’t necessarily expect it to last. Read more about my survey here.
Disability Benefits
If you or your child has a disability there are various benefits you may claim, plus Carer’s Allowance can be claimed under certain conditions. You don’t need an EHCP or specific medical diagnosis in order to claim Disability Living Allowance, since DLA is for children who need more help with daily living or with mobility (getting around) than other children of the same age.
Benefits and Work has useful guides for completing various forms and also for appealing decisions. Support organisations for particular conditions or syndromes may also be very helpful – see eg Cerebra’s DLA Guide. Contact (previously Contact-a-family) has tips on completing the DLA form. Your local Citizens Advice Bureau may also be able to help.
At 16 the entitlement to DLA stops and the young person has to claim Personal Independence Payment which has different rules from DLA. Transfer from DLA to PIP is not automatic and the young person will become responsible for making a claim for PIP in their own right although it is possible for a parent/carer to oversee their claim as what is called an “appointee”.