SEND Code of Practice is NOT the law!
SEND Code of Practice is NOT the law!
The SEND Code of Practice.
It’s something which many SENCOs and Local Authorities use as a kind of SEND bible. It covers many areas of SEND including EHCPs, the appeals and tribunal process, multi-agency working and collaboration (and much more). It is designed to be a comprehensive document that puts key information all in one place so it is not surprising that it has become the “go to” place for SENCOs looking for information.
Here’s the thing though…the SEND CoP is NOT law. I often hear SENCOs sharing stories of LAs making decisions which are based on statements in the SEND CoP. These are many and varied but often include things like “not enough APDR cycles were completed”, “evidence was not gained from external professionals prior to making the needs assessment request” and sometimes simply “we don’t think an EHCP is needed”. Following these statements, there will usually be a reference to the SEND CoP as justification for the decision but here is the crucial fact that is worth repeating - the SEND CoP is NOT law! If this resonates with you, you may well have felt like you just keep hitting “stop” signs wherever you turn. The good news is that the law (rather than SEND CoP which is guidance) is on your side.
The statements that ARE law around EHCNAs are written in the Children and Families Act (CAFA 2014) and the SEND Regulations (SEND Regs). These laws DO NOT state specific evidence is required so any reference to “requirements” are unlawful thresholds which can and should be challenged. Equally, a letter which states “we don’t think an EHCP is required” should also be appealed - it has been shown in court that it is not the LA’s decision to make regarding whether the child has needs or not. Indeed, courts have ruled that the only way of knowing if an EHCP is needed or not is to carry out a Needs Assessment.
As a SENCO, Headteacher or parent, you can challenge unlawful decisions through a formal appeal.
If you would like to find out more about how to complete an appeal, join me for a brand new webinar “Appealing a refusal to assess” on Thursday 13th March, 4-5pm
