Managing SEND, Part 1: Legislation - Special cases

What pressures do managers face specific to children with special needs, and how should they deal with them? In the first of a new series on the subject, Karen Faux reviews the legal framework

See the full series on managing SEND

Since the SEND Code of Practice was implemented in 2014, nursery managers are increasingly playing a central role in the process of identifying and supporting children with special educational needs and disability. While all providers must have procedures in place for meeting these needs, ‘the buck stops’ with managers, says manager Ann Miller, Sure Steps Nursery in Liverpool. ‘Although they may be managing a busy nursery, the code spells out that is their responsibility to interpret the needs of all the children in their care.’

There are three key documents which set out settings’ statutory responsibilities for children with SEND: The code, The Equality Act, and the EYFS.

The code aims to clarify the approach that providers must have in place to provide support for children with disabilities and SEN, and places managers at the heart of the process. Their ability to identify need at the earliest point, and make effective provision, is seen as key to improving long-term outcomes. It provides a stronger focus on early intervention, a joined-up approach across education, health and social care, and aims for a more user-friendly system. Its content adheres to statute in The Special Educational Needs and Disability Regulations 2014, and draws on the definitions contained in the Equality Act 2010 and The Children and Families Act (CFA) 2014.

The Equality Act aimed to pave the way for a more common-sense approach to defining disability and SEN and combating discrimination. It provides a wider definition of special educational needs and disability, which supports the code’s more flexible approach to support.

Running alongside this, the Statutory Framework for the EYFS promotes equality of opportunity and anti-discriminatory practices.


The Equality Act defines disability as ‘a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities’. A physical or mental impairment includes learning difficulties, mental health conditions, medical conditions and hidden impairments such as specific learning difficulties, autism, and speech, language and communication impairments. Behavioural difficulties in themselves are no longer seen as a SEN but as symptomatic of a possible unmet SEN. Under the act, settings must make ‘reasonable’ adjustments to ensure that no-one is put at substantial disadvantage by any policies, practice or physical aspects of the setting. This duty covers alterations to physical features and providing auxiliary aids.


The manager must work closely with a qualified SENCO who in turn must ensure the whole team understands their responsibilities. They must work closely with parents and liaise with professionals or agencies beyond the setting.

Where a child is identified as having a special need, the code ‘envisages’ that the key person will lead engagement with the child and their parents, with the support of the SENCO.

The code’s over-riding purpose of early intervention sharpens the focus on assessment and planning. Where a setting identifies a child as having SEN, under the code the setting must take four stages of action: assess, plan, do and review. This cycle is led by the key person and supported by the SENCO with the child’s parents involved throughout. The child’s views should also be considered. The code sets out exactly what discussions with parents should cover and how this process should be carried out. Nasen guidance suggests reviewing a setting with the family to ensure any adjustments made are appropriate.

The four broad areas of need are identified as:communication and interaction; cognition and learning; social, emotional and mental health; and sensory and/or physical needs. The code recognises that these are not definitive, and that children’s needs may change.

The integrated health and early education review for two-year-olds, contained in the EYFS, supports settings in meeting the code’s requirements to identify a learning difficulty or disability and deliver an effective intervention. The EYFS Profile, usually completed when children turn five, should identify the need for any future support.

Another key piece of legislation is the Children and Families Act (CFA) 2014. Under this, SEN Statements were replaced with Education Health Care (EHC) plans for children whose needs are significantly greater than most children their age.

The SEND regulations determine how local authorities must fulfil their duty to meet the need for these, and how they should approach providing support and publicise the ‘local offer’: all local services available for SEND children and families, including parent carer forums. They must also ensure settings have sufficient funding to support children with SEND. Early years providers also have a duty to provide information to parents about how their setting can support the child, and what support is available locally. They must co-operate with the local authority in meeting their duties for children with SEN.


Practitioners must maintain a record of children as required by the EYFS framework. The code states that they must be available to parents and that they must include how the setting supports children with SEN and disabilities. It makes clear that these records must be accurate and up-to-date, and that Ofsted will expect to see evidence of children’s progress, a focus on outcomes and a rigorous approach to monitoring and evaluation.

Well-maintained record-keeping is key to accessing funding for SEND under the code. Where a special need is identified after a child arrives at nursery, providers can approach their local authority for advice through area SENCOs, specialist teachers or health professionals, and request ‘top-up’ funding. This involves staff, parents and professionals feeding into individual support plans as a vehicle for funding. Paperwork is not standardised but all local funding applications will involve form-filling and include evidence from the setting, parents, child and outside professionals. These are submitted by the setting’s SENCO to a local authority funding panel, which typically includes the family services lead, PVI provider representatives and health professionals. Where funding is awarded, new paperwork has to be submitted every six months for review.

EHC needs assessments and plans are more formalised, tightly regulated documents placing clear duties on local authorities under the SEND regulations. While these can be requested by a child’s parents, early years setting or health professionals, nurseries see fewer of these compared with individual development plans.

The code strives to make the EHC assessment a flexible and ‘forward-looking’ process that helps raise ‘aspirations’, discouraging local authorities from applying a ‘blanket’ policy to particular groups of children or types of need.

The local authority must inform the child’s parents within a maximum of six weeks from receiving the request. Where this relates to a child attending an early years setting, the manager must be part of the assessment process and be kept informed by the local authority throughout. A draft plan is sent to parents and the proprietor/manager of the early years provision for approval generally within 15 days.

Care should be taken with documents submitted for an EHC assessment. The setting should ensure they submit appropriate evidence, including of regular ‘assess, plan, do review’, demonstrating increasing levels of personalisation, and that advice from other agencies has been implemented.

An EHC assessment does not always lead to an EHC plan. The information gathered during the assessment may indicate ways in which the setting can support the child without one.

The local authority can decide an EHC plan is no longer necessary or it is no longer responsible for the child. The plan will also often be reviewed when a child moves to school.


With 13 managers across its five sites and an emphasis on supernumeraries, Mulberry Bush in Walmersley, Bury is in a strong position to be proactive in its SEND support.

Stacey Kenyon, senior manager, believes that the move from statements to the EHC has made a big difference to the way nurseries are respected for their input. Having herself worked in a special school, she has a strong overview of how assessment should be approached.

‘Our SENCOs and key persons are now more involved in the writing of the EHCs, working with parents and, in many cases, hospitals,’ she says.

‘With statements, the picture of the child was very clinical, it wasn’t about what was important to them and practitioners did not find them terribly useful.

‘We recently had a little boy in Whitefield who was the subject of an EHC. Part of assessing his needs involved bringing in his mum, his elder brother and blowing up photos of him to focus on his activities. The EHC was all about his development, his favourite toys, and what people loved and admired about him as a little boy. He was invited to sit in at the start of the meeting and listen to the comments made about him and he was chuffed.

‘With the EHC written in April, we were able to invite the school into the setting and establish what support he would need when he started school in September. ‘When it comes to individual support plans, the team is able to be pro-active and apply for funding swiftly. Unlike some local settings we have the resources to navigate the funding paperwork.

‘In Bury, providers have just been told that much of the form filling will in future be filled out by local authority outreach workers. This is because many nurseries are struggling with it, which means many children could be losing out on the support they need.’

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