Question: When the new special educational needs law comes
in to place, will we lose all of the case law when appealing?
IPSEA’s answer: Case law, or common law, in England makes
up much of the substantive law that governs our lives, and that includes the area
of special educational needs (SEN). Acts of Parliament set up broad frameworks,
and then judges tease out the detail of how the law applies to particular
cases, sometimes filling in gaps left by an Act’s drafters. Case law interprets
the statutes in Acts of Parliament, and tends to be very literal – that is,
judges look carefully at the meaning of words, often giving them their plain or
natural meaning, but sometimes considering them in terms of the general purpose
of the Act or the purpose of the Government as stated by a minister during Parliamentary
debates.
So individual words can be very important, and judges may
assume a different approach is intended when words are changed, as we argued
for instance when it looked as though the duty to ‘specify’ special educational
provision in Part 3 of the statement of SEN would be replaced by the duty to
‘set out’ the provision.
We are concerned that some areas are to be changed radically
and therefore we may lose the case law which interprets the current legislation.
An example is the definition of health provision in the proposed legislation,
where we foresee a danger that we could lose the current case law which says
that therapies can be educational provision (therefore enforceable) or health
(therefore not enforceable) depending on the facts of the individual case. The
draft legislation introduces such a broad definition of health provision that
it could be seen by judges to move anything provided by the NHS into the health
section of the Plan, and a local authority (LA) would not therefore have
responsibility to ensure it was delivered.
Where there are requirements that have been omitted, such as
the duty on LAs to respond within a time limit to a parent’s request for
statutory assessment, then all case law interpreting the omitted law will cease
to be relevant.
So the answer is that it depends on how much the legislation
departs from current law. We are hoping that the Government, in keeping its
promise to ensure that parents’ and children’s legal protections are
maintained, will ensure that no rights based on case law are lost, given the
extensive list parents and their advisers draw on when negotiating with LAs or
appealing decisions.
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