Councils' duties under special needs statements unchanged

22nd August 1997 at 01:00
The outcome of Beth Tandy's case in the Court of Appeal ("Councils win right to plead poverty", TES, August 8) does not mean that cash-strapped local education authorities are now free to deny disabled pupils the help they need.

If Beth had continued to have a statement of special educational need, then the outcome of her case would have been very different. Children with statements of special educational need continue to be protected in law. Sadly, Beth lost that protection once her statement was ceased in 1995: though she gained the sympathy of the court, her case was lost also.

Recent legal judgments have underlined the duty that local education authorities have to make the provision set out in a child's statement. Justice Turner, for example, in the 1996 Harrow judgment, confirmed that this duty is an absolute one, owed personally to the child. Further, he said, it is a duty which is "simply expressed and subject to no qualification". Unfortunately for Beth Tandy, once she was without a statement, then her LEA's duty to her was severed: she ceased to have, in the words of one Appeal Court judge, "an unqualified individual right ... to a specific amount or to a specific kind of educational provision".

Children with statements do have that right. If a child's statement is changed without regard to their needs then parents have a right of appeal to the SEN tribunal. If an LEA simply fails to arrange the provision on a child's statement, parents should consult a solicitor. Parents and their advisers should be clear that the Tandy judgment does not allow LEAs to renege on their obligations to children with statements. The implications of the judgment are more limited than your report would suggest: it affects only those children whose provision is subject to LEA discretion because they don't have a statement.

The Tandy case is a chilling example of what can happen once an LEA's discretion replaces statutory duty. Since the 1981 Education Act came into force in 1983, statemented children have had a legal entitlement to the provision that meets their needs. Even so, parents of disabled children routinely have to struggle to get that provision.

The forthcoming Green Paper promises changes in special education: will those changes give LEAs more discretion while weakening their statutory duties? Beth Tandy's case shows that LEA discretion can be bad news for disabled children. Parents and those working on behalf of disabled children need to resist strenuously any proposals that would increase discretion and weaken legal duties. Sympathy is no substitute for entitlement.

KATY SIMMONS Independent Panel for Special Education Advice Office B Brightwell Grange Britwell Road Burnham, Bucks

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