Safeguarding Children and Young People with Special Educational Needs and Disabilities (SEND)

Key legislation:

The Children Act 1989 provides the legislative framework for child protection in England for all children, including those with SEND. Key principles established by the Act include:

the paramount nature of the child’s welfare
the expectations and requirements around duties of care to children.

The specific legislation relating to the safeguarding of d/Deaf and disabled children in England is the Children and Families Act 2014. Part 3 establishes help for children with special educational needs and disabilities, including a single assessment process and personal budgets.

Under Section 17 of the Children Act 1989, local authorities in England must also safeguard and promote the welfare of children in need. A child in need is a child who is unlikely to achieve or maintain, or have the opportunity to achieve or maintain, a reasonable standard of health and development without any support provided by a public authority. This may include having a disability.

The Rights of Children and Young Persons (Wales) Measure 2011 embeds the UN Convention on the Rights of the Child into Welsh law, including giving disabled children the right to protection, participation and service provision.

National Strategy

The government’s SEND Code Of Practice provides guidance on the special educational needs and disability (SEND) system for children and young people aged 0 to 25, from 1 September 2014.

This statutory code contains:

details of legal requirements that you must follow without exception
statutory guidance that you must follow by law unless there’s a good reason not to

It explains the duties of local authorities, health bodies, schools and colleges to provide for those with special educational needs under part 3 of the Children and Families Act 2014.

The code, which applies to England, is for:

headteachers and principals
governing bodies
school and college staff
special educational needs (SEN) coordinators
early education providers
local authorities
health and social services staff

Read the SEND Code of Practice here.

Download the DfE Safeguarding Disabled Children Practice Guidance

Mental Capacity Act (MCA)

The Mental Capacity Act (MCA) 2005 has been in force since 2007 and applies to England and Wales. It applies to young people over the age of 16 and adults. The primary purpose of the MCA 2005 is to promote and safeguard decision-making within a legal framework. Everyone working with (or caring for) any young person from the age of 16 who may lack capacity must comply with the Act.

The MCA sets out 5 core principles:

Principle

In Practice

Principle

A person must be assumed to have capacity unless it is established that they lack capacity.

A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

An act done or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

In Practice

Every young person from the age of 16 has a right to make their own decisions if they have the capacity to do so. Practitioners and carers must assume that a young person has capacity to make a particular decision at a point in time unless it can be established that they do not.

Young people should be supported to help them make their own decisions. No conclusion should be made that a young person lacks capacity to make a decision unless all practicable steps have been taken to try and help them make a decision for themselves.

Young people have the right to make a decision that others would see as ‘unwise’. This does not automatically mean they lack capacity and they should not be treated as such.

If the young person lacks capacity any decision that is made on their behalf, or subsequent action taken must be done using Best Interests, as set out in the Act.

As long as the decision or action remains in the young person’s Best Interests it should be the decision or action that places the least restriction on their basic rights and freedoms.