There is a huge array of legislation in place for our children and young people. However, many of us either don’t know what is out there or how it can be applied. There is also confusion over whether something is absolutely set in stone and cannot be ignored, or whether it is just something that we only see in good practice.
These provide the basic details of what the law requires. This is not guidance, it is not a suggested method, this is the law. It has to be adhered to. There is no “best endeavours” or “should have regard to” allowed.
Primary Legislation has to be approved by Parliament (i.e. approved by the House of Commons and the House of Lords).
These, as it was once explained to me, put the meat on the bones. So they provide more detail about timescales, processes and what the Act or Primary Legislation requires.
Again, these have to be adhered to.
Secondary Legislation has to be approved by Parliament.
This is produced by the Government as guidance to explain in more detail, and in terms that everyone understands, what the Primary & Secondary Legislation requires. It does not have to be approved by Parliament.
Supplementary legislation does not have to be followed to the letter, if good reason can be shown as to why it was not followed.
In the introduction, the Code of Practice states “where the text uses the word ‘must’ it refers to a statutory requirement under primary legislation, regulations or case law.
The bodies (*) “must have regard to the Code of Practice. This means that whenever they are taking decisions they must give consideration to what the Code says. They cannot ignore it. They must fulfil their statutory duties towards children and young people with SEN or disabilities in the light of the guidance set out in it. They must be able to demonstrate in their arrangements for children and young people with SEN or disabilities that they are fulfilling their statutory duty to have regard to the Code.
So, where the text uses the word ‘should’ it means that the guidance contained in this Code must be considered and that those who must have regard to it will be expected to explain any departure from it.
(*) The bodies:
- local authorities (education, social care and relevant housing and employment and other services)
- the governing bodies of schools, including non-maintained special schools
- the governing bodies of further education colleges and sixth form colleges
- the proprietors of academies (including free schools, university technical colleges and studio schools)
- the management committees of pupil referral units
- independent schools and independent specialist providers approved under Section 41 of the Children and Families Act 2014
- all early years providers in the maintained, private, voluntary and independent sectors that are funded by the local authority
- the National Health Service Commissioning Board
- clinical commissioning groups (CCGs)
- NHS Trusts
- NHS Foundation Trusts
- Local Health Boards
- Youth Offending Teams and relevant youth custodial establishments
- The First-tier Tribunal (Special Educational Needs and Disability)
It is always best, where possible, to use the primary and secondary legislation to ensure your child (or young person) receives the Special Educational Provision they are entitled to.
The Children and Families Act and the SEN Regulations are compulsory and not open to negotiation.
Lots of parent rely on the Code of Practice and although this is statutory guidance and everyone should have regard to it, there are a few get out clauses.
If someone tells you that they didn’t do something because they didn’t know the law said they should, ignorance of the law is not an acceptable excuse.
Ignorantia juris non excusat (sometimes called wilful blindness) is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because they were unaware of its content.
Children and Families Act:
Education and Skills Act:
Schools Standards and Framework Act:
Chronically Sick and Disabled Persons Act 1970:
Care Act 2014:
National Health Service Act:
Human Rights Act:
SEND (Personal Budgets) Regulations:
SEND (Detained Persons) Regulations:
The Children and Families Act 2014 (Transitional and Saving Provisions)(No 2) Order 2014:
Equality Act 2010 (Disability) Regulations 2010:
The School Discipline (Pupil Exclusions and Reviews)(England) Regulations 2012 :
SEND Code of Practice:
Supporting Pupils at School with Medical Conditions:
Home to School Travel and Transport Guidance:
Exclusion from maintained schools, academies and pupil referral units in England:
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