Law is on the side of the child with a statement

11th April 1997 at 01:00
Joan Dalton should take heart. The law is on her side - or rather, on the side of the statemented child. If the child with Down's syndrome had his provision clearly set out in his statement, it is simply unlawful for that provision to be arbitrarily cut and his parents need to consult a solicitor right away. If the provision has been cut by way of an amendment to the statement, his parents will have a right of appeal to the Special Educational Needs Tribunal. If they can show that he still needs the provision, the tribunal is likely to uphold their appeal.

The legal obligation for making the provision lies fair and square with the LEA. While it is perfectly legitimate for the local authority to ask the school to help with that provision, case law has established that the school must agree to do so. If they simply can't do it, they should say so - at which point the LEA must arrange the provision in another way.

LEAs have statutory obligations towards children with statements -obligations which in law they do not have towards the chronically sick, elderly or adults with disabilities. We would therefore disagree with the solicitor who, elsewhere in the same issue, says that LEAs will be able to plead poverty and escape those statutory responsibilities.

A recent judgment against the London borough of Harrow underlined the principle that LEAs have a direct legal obligation owed personally to the child. The fact that LEAs do not have the cash to discharge their statutory responsibilities is another issue altogether and one that they should be tackling, not by eroding the provision of individual children but by saying to legislators what the dissenting judge said in the Gloucester appeal: "Having willed the end, Parliament must be asked to provide the means."

It is down to parents to uphold their child's legal entitlement, possibly through the court or through the tribunal. But governors such as Joan Dalton must be aware of the legal framework in which they work. Otherwise, they are likely to compound the injustice already being done to children whose provision should be guaranteed.

KATY SIMMONS Co-ordinator Independent Panel for Special Education Advice PO Box 1933 Marlow, Buckinghamshire

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