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ITEM EX9

EXECUTIVE – 18 FEBRUARY 2003

THE NATURE AND USE OF THE SPECIAL EDUCATIONAL NEEDS RESOURCES MATRIX

Advice Note by Solicitor to the Council

 

Issues

  1. I am asked to advise on the use by the LEA of the Special Educational Needs Matrix (‘the Matrix’) and specifically whether the use of the Matrix in determining the appropriate support and provision for pupils with Special Educational Needs (‘SEN’) is lawful.

    2. Statutory Framework

  2. The following is a summary of the relevant legal issues.
  3. The Education Act 1996 imposes statutory obligation on LEAs to provide suitable education for pupils according to their age, aptitude and ability. Where a child has SEN then often these needs can properly be met within the school setting. If the SEN are such that is probable that further provision is called for then the LEA has an obligation to assess. In the light of that assessment, the LEA can make and maintain a Statement setting out the provision that the LEA will make. The content of the Statement is prescribed and includes the type or name of the appropriate placement and the details of the SEN provision to be made to meet the identified needs of the pupil.
  4. Regulations give more detail as to the assessment and statementing process and the Code of Practice on SEN provides further practical advice to LEAs and schools on how to discharge their statutory duties.
  5. The decision-making process for the LEA, therefore, is:
    • Does the pupil have SEN which require assessment?
    • If yes, then, does the assessment indicate that SEN provision is required over and above that which is available within a mainstream school setting?
    • If yes, then, a Statement should be made.

    1. There are further legal obligations to review the Statement periodically which can provide an opportunity for the Statement to be amended should the LEA consider that necessary.

      2. Criteria

    2. Decision making by a public body such as the LEA involves the exercise of discretion. In exercising that discretion it is a general rule of law that any decision must be fair, reasonable, proportionate and should only take into account relevant factors and should disregard irrelevant factors. It is normal practice, to ensure that a decision is properly made, to develop criteria that serve to guide the decision maker and ensure consistency of decisions.
    3. It is a further legal principle that an authority should not fetter its discretion. Therefore, whilst criteria are an essential procedural safeguard, they should not be followed slavishly and must admit of exceptions in special or exceptional circumstances.
    4. When considering whether an assessment is necessary, the Code of Practice on SEN stipulates that the LEA should have regard to evidence obtained from the school, parents and other professionals as to the child’s progress.
    5. There are no ‘criteria’ as such for reaching a decision as to whether an assessment should be undertaken. The Code does not set out ‘hard and fast rules . . . Decisions must be made by local education authorities in the light of all the circumstances of each individual case and, always, in the closest consultation with parents and schools.’
    6. The Code goes on the state that: ‘In the interest of establishing agreed local interpretation, the LEA may operate moderating groups to support them in making consistent decisions.’ Advice is given about their composition and the importance of having all the evidence available to the Panel when making decisions.
    7. Having assessed a pupil’s SEN the next decision is whether to make a Statement. The Code of Practice sets our a ‘framework within which it is important that schools, LEAs and other agencies involved develop the details of local interpretation.’ The moderating groups, referred to above, should ensure consistent and robust decision making through ‘sampling and retrospective comparison’.

      8. Resources

    8. The LEA has further statutory obligations when discharging its statutory duties to have regard to the efficient use of resources and must give consideration to questions of unreasonable public expenditure. It is not permissible, however, to allow considerations of affordability to impinge on the decision as to whether needs should be assessed or provided for in a Statement. The obligation on the LEA to provide is a mandatory one, regardless of cost.
    9. Questions of costs are relevant when considering a choice between provision which will meet the need. If the less expensive is as suitable to meet the assessed SEN, then the LEA can opt for the less expensive option as the most efficient use of resources.

      10. The Matrix

    10. It should be evident from the above that it is useful for the LEA to have a set of criteria to assist in the decision as to whether an assessment should be made, or in the light of the assessment whether a Statement should be provided or amended. A set of criteria helps to justify the decision taken and provides a consistency of approach.
    11. The LEA has developed a matrix which has been referred to as a Resource Matrix and a Special Provision Matrix. The copy [at Annex 1 above] is in draft form. I am instructed that the Matrix is used by the Panel which has the responsibility for determining the type of SEN provision and whether an assessment should be undertaken.
    12. The Matrix sets out a number of stages or bands which I take to relate to the extent of the identified SEN. The rest of the Matrix sets out the type of provision that is commensurate with that stage or band of SEN, with the more severe SEN attracting the larger amount of provision. Details are also given of how the Statement should be reviewed and assessed and the level of Adult contact.
    13. The details of the appropriate type of provision would seem to accord with that envisaged in the Code of Practice on SEN and it is assumed have been formulated from experience of individual cases.
    14. I am instructed that the Matrix acts as guide to the Panel and provides a reference point for decisions. I am also informed that each individual pupil is considered on a case by case basis and the Matrix is not used rigidly.
    15. Other than one exception there is no mention of financial resources. There is no evidence on the face of the document that consideration of financial resources is a factor in determining the appropriate provision of assessed SEN.

      16. Advice

    16. I do not consider using a Matrix is unlawful. On the contrary, the benefits of having a set of criteria to act as a guide to determining whether SEN provision should be made and the type of provision the LEA is likely to make, are obvious and have already been referred to.
    17. On the basis of my instructions, Officers are aware that the Matrix should not be seen as a strict set of rules and do not apply the criteria in a rigid way. Officers are further aware of the need to consider the circumstances of each individual case.
    18. I would advise that a note setting out the way in which the Matrix should be used would be helpful which should make clear that applying the criteria rigidly without reference to individual circumstances could be challengeable. Similarly, the note should state that consideration of costs/resources should not influence any decision about the appropriate provision that should be made.
    19. The Matrix should be kept under review by the LEA to ensure is accurately reflects the appropriate provision suited to the different type of needs.
    20. The Code of Practice encourages a transparent decision making process and the LEA should give consideration to the circulation of the Matrix to others involved in the process.

P G Clark

Head of Legal Services &
Solicitor to the Council

Contact Officer: Nick Graham, Principal Solicitor Tel: 01865 815969

4 February 2003

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