What is the law relating to SEND.
For all children and young people with special educational needs and disabilities, including those with EHC plans, the law is contained in the following places:
The Children and Families Act (“CAFA”) 2014 is statute law.
It is legally binding which means that the LA and schools must comply with it or else they are acting unlawfully.
Part 3 of the CAFA 2014 contains all the relevant sections about children and young people with SEN and disabilities.
Section 100 of the CAFA 2014 contains schools’ duty to support pupils with medical conditions.
The Special Educational Needs and Disability Regulations 2014 are the main set of Regulations underpinning the CAFA 2014.
They are also legally binding.
The Special Educational Needs (Personal Budgets) Regulations 2014.
This is a special set of Regulations dealing with personal budgets and direct payments.
This sets out the SEND Tribunal’s powers to make recommendations about health and social care.
The law is set out and expanded upon in SEN and Disability Code of Practice (the “Code”).
This Code provides much more detail on the legal framework relating to special educational needs and disabilities.
Wherever in the Code it says an LA, school or college must do something, then it is referring to compulsory obligations which are set out in the CAFA 2014 or the Special Educational Needs and Disability Regulations 2014.
Wherever the Code says an LA or other entity should do something, this is statutory guidance.
The Code is not law. If there is any difference in what the law (CAFA 2014 and regulations) and the Code says, the law takes precedence.
Disability discrimination: statute law, regulations and guidance
Children and young people with special educational needs may also be considered disabled.
There are some situations where disabled people are subjected to direct or indirect discrimination.
Equality Act 2010 (Disability Regulations) 2010
Exclusion from schools: statute law, regulations and guidance
Children and young people with special educational needs and/or disabilities are at greater risk of exclusion from schools or post-16 institutions.
Statute law
Education Act 2011 – this is the main statute which sets out what a school should do when excluding a pupil.
Education Act 2002 – this Act covers a wide range of topics, but section 52 still contains the basic power of head teachers to exclude a pupil from school, and it also contains provisions relating to the power of staff at school to search pupils.
Education and Inspections Act 2006 – this Act extended the law on schools’ power to discipline and makes parents responsible for ensuring their excluded child is not in a public place during the first five days of any exclusion.
It also sets out the obligation on schools to arrange full time educational provision for pupils who have been excluded for a fixed term, while LAs have this responsibility where pupils have been permanently excluded.
Key regulations
School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 (SI 2012/1033) – this contains detailed provisions about exclusions, and applies to maintained schools, pupil referral units and Academies.
The Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 – this sets out more detail on schools’ and LA’s obligations to provide education for excluded pupils.
Statutory guidance
Exclusion from maintained schools, Academies and pupil referral units in England – this is statutory guidance which applies to all exclusions happening up to and including 31 August 2022
‘Suspension and permanent exclusion from maintained schools, academies and pupil referral units in England including pupil movement’ - this is statutory guidance which applies to all exclusions happening from 1 September 2022.
Behaviour and discipline in schools: guide for governing bodies
Alternative Provision statutory guidance for local authorities – this guidance is for local authorities, schools, Academies, pupil referral units and alternative provision settings about the use and inspection of alternative provision.
