A key duty for certain settings is the duty to use their ‘best endeavours’ to secure special educational provision for all children or young people for whom they are responsible.
This duty applies to:
- mainstream schools (including mainstream academies)
- maintained (state-funded) nursery schools
- 16-19 academies
- alternative provision academies
- Further Education institutions and
- Pupil referral units.
(Note that this does not apply to non-maintained special schools or non-maintained independent schools).
What the law says
“If a registered pupil or a student at a school or other institution has special educational needs, the appropriate authority must, in exercising its functions in relation to the school or other institution, use its best endeavours to secure that the special educational provision called for by the pupil’s or student’s special educational needs is made”. (Section 66 of the Children and Families Act 2014)
The reference to the ‘appropriate authority’ means the governing body, proprietor or management committee of the school or other setting. The legal duty is directly on them as a body and not the head teacher of the school or principal of the college.
The governing body (or equivalent) is in a position to effect change as it is responsible for the appointment and performance management of such posts. This means that the governing body, proprietor or management committee must use their best endeavours to secure the special educational provision.
Using best endeavours means doing everything they can to meet the child or young person’s SEN. There are further details of what this might include in the SEN and Disability Code of Practice 2015.
It is a proactive duty that requires the appropriate authority to enquire and ensure that the nursery, school or college is actually making the special educational provision that children and young people require. It is not enough to accept the word of a school’s head teacher, for example, that an adequate record keeping process is in place – the school governors should ensure that it is.
The best endeavours duty can require schools or other settings to obtain specialist help, such as speech and language therapists or educational psychologists. The Code also includes a requirement that “where a pupil continues to make less than expected progress, despite evidence based support and interventions that are matched to the pupil’s area of need, the school should consider involving specialists, including those secured by the school itself or from outside agencies” (paragraph 6.58 for schools, or 5.48 for early years settings).
For children or young people with an EHCP, the best endeavours duty also applies, but additionally the local authority has an absolute duty to secure the provision in their EHCP. It is not enough for the LA to simply ‘try their best’ to provide it: the LA must ensure that it is provided.
The SEN information report
The governing bodies of all maintained schools and nursery schools and the proprietors of academies must also publish a SEN information report. This report will generally be found on the school’s website.
The report must contain details of:
- how the school identifies children with SEN
- how it makes provision for children with SEN and the facilities available to do this;
- details of the special educational needs coordinator (SENCo); and, importantly
- what arrangements the governing body themselves have for dealing with complaints from parents about their child’s SEN provision.
This should include the name of the governor responsible for SEN matters on the governing body. (Full details of the items which it must include are found in Schedule 1 of the Special Educational Needs and Disability Regulations 2014.)
This report will therefore contain information which should help a parent check whether the governing body or proprietor is complying with its ‘best endeavours’ duty and to take steps to complain if they feel they are not doing so.