• March 29, 2024
 The Impact Of A Child’s Additional Needs on Private Law And Financial Remedy Proceedings

The Impact Of A Child’s Additional Needs on Private Law And Financial Remedy Proceedings

The Family Court has the child’s welfare as its paramount or first consideration but when and how should the court take account of a child’s additional needs? If a party raises an argument that a child’s additional needs may be relevant to the court’s decision making, knowing where to look for evidence and what to look for is essential.

What are Special Educational Needs?

Section 20 of the Children & Families Act 2014 sets out when a child or young person has special educational needs (“SEN”). The criteria can be summarised as follows:

  • A learning difficulty or disability which calls for special educational provision to be made.
  • A significantly greater difficulty with learning than others of the same age.
  • Difficulty or prevention in making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.

Section 36(8) of the 2014 Act places a duty on local authorities to assess children who may have SEN. Although a local authority may refuse to assess, the threshold for assessment is low. Section 37(1) of the Act goes on to set out when a local authority must issue an Education, Health and Care Plan (“EHC Plan”) to provide for the child’s additional needs. An EHC Plan can run until the age of 25.

An EHC Plan will describe the child’s needs, the provision that will be made to meet those needs as well as the school place or educational provider.  In terms of educational provision, the EHC Plan is legally binding on the local authority and what is set out in the Plan, must be provided as a matter of law.

Why does this Matter?

SEN is a definition which embraces a large variety of diagnoses but let’s take Autism Spectrum Disorder (“ASD”) as an example. Put in the context of a simple scenario, one party may argue that i) the child could not cope with transitioning between two houses, ii) may struggle with change or iii) that the other party’s living arrangements may not be conducive to meeting the child’s sensory or physical needs.

Where can the court find reliable evidence as to the child’s day to day needs? An EHC Plan can have significant evidential value and should not be overlooked. The description of the child’s needs is often lengthy and set out in great detail. It often covers issues such as the child’s cognition and learning needs, physical needs as well as social, emotional and mental health needs.

Plans usually contain a number of bespoke expert reports as appendices. One often sees reports from Educational Psychologists, Child Psychologists, Psychiatrists, Speech & Language Therapists, Occupational Therapists, Physiotherapists, as well as teaching staff or nursery staff.

These reports often contain valuable information which can assist the court in better understanding the child’s diagnosis and resulting needs. It may be open to a party to argue that if the school reports a child struggling with changing classrooms, an average class size or unstructured times during the school day this ought not to be overlooked. The reports may identify the child’s sensory difficulties or challenges in the physical environment. It is also possible that a Plan may reveal that the child’s needs are not significant and therefore ought not to impinge on the proposed child arrangements.

What if the child doesn’t have an EHC Plan? If the local authority has not issued an EHC Plan, ask what other records are held by the school. Often the outcome of the assessment and other documents will be available even if the assessment did not result in a Plan.

Finally, a party may consider making a specific issue application in respect of schooling but it is important to note that if either party disagrees with a local authority’s choice of school as provided for in the EHC Plan, there is a route of appeal available through the First Tier Tribunal (Special Educational Needs and Disability).

Financial Remedy Proceedings

In respect of financial remedy proceedings, it may be argued that one party can’t work due to the additional time spent in caring for the child or the distance involved in taking the child to or from a specialist educational setting. It is important to look at the local authority’s home to school transport policy for children with SEN to understand whether a duty is triggered and what the parties may be entitled to in terms of transport, including whether or not it would cover both parents’ homes.

If one party’s earning capacity is affected by the child attending school for only part of the school day or because of frequent requests to collect the child early, the parties may wish to consider whether the school is actually meeting the child’s needs. School placements (as well as other sections of EHC Plans) are challenged in the First Tier Tribunal. The parties may also wish to consider what additional help is available through a local authority’s Local Offer.

The cut off point for child maintenance or other child related benefits may not tie in with young person achieving independence. Section 29(3)(b) of the Matrimonial Causes Act 1973 allows for financial provision for children to be extended beyond the child’s 18th birthday if there are special circumstances and pursuant to paragraph 3(2)(b) of Schedule 1 of the Children Act 1989, where there are special circumstances an order can extend beyond the child’s 18th birthday.

Selling or retaining the family home can also be an extremely important decision for parties who have a child with additional needs. An EHC Plan can be transferred to a new local authority where appropriate but a child may attend a very specialised school in proximity to the home.

Careful consideration needs to be given to whether or not deferring the sale of the home may be appropriate with more bespoke triggers e.g. dependent on when it is anticipated the child or young person will reach independence, transition to adult services or entrance to residential school or supported living.

There may be arguments about housing needs and adaptations. When it comes to housing needs, it is worth checking the availability of Disability Facilities Grants which can be worth up to £30,000 and do not affect entitlement to other benefits. Grants may have a pay-back clause and therefore a decision would need to be made about the optimum time to sell the family home if the parties have already received a grant.

The law in relation to special educational needs and the associated entitlements may be unfamiliar territory for judges. If a child’s additional needs are relevant to the outcome of proceedings, it is crucial that the issues are identified at an early stage and the court is equipped with proper evidence in support.

Aimee Fox, Barrister at 3PB Barristers

Aimee Fox is a specialist in Education and Family Law. She handles an established practice specialising in financial remedies and private law proceedings.  She is often instructed for her expertise in education law (SEN) to assist on related Children Act matters. Aimee’s financial remedy work has included a variety of high value disputes. She continues to be in constant demand for her expertise in complex and highly sensitive cases.

Aimee has extensive experience in tribunals relating to EHC Plans. She has also been successful in a number of judicial reviews and appeals to the Upper Tribunal. Aimee’s expertise is such that she is often invited to train other practitioners and was recently invited to speak on Education Law at the Annual Conference of Chartered Paediatric Physiotherapists at the Emirates Stadium.

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