Monday, 10 December 2012

SEN reforms: will we lose case law?

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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