The law on educational provision to support Ukrainian children with SEN and disabilities arriving in England

with Ali Fiddy, Chief Executive of IPSEA

Background image: UNICEF Ukraine from Kyiv, Ukraine, CC BY 2.0 via Wikimedia Commons

We are all beside ourselves with shock and sickening helplessness at the invasion in Ukraine. Everyone can surely empathise with how terrifying it must be for Ukrainian residents, forced to leave the previous safety of their homes and flee across borders to unknown destinations and futures. We can barely imagine the horror of seeing your neighbourhood obliterated before your eyes and family and friends killed. What must it must be like for Ukrainian children and young people with SEN and disabilities, being pulled from all that is familiar and secure, taken to a strange country and, if they're lucky, a new school.

But if a child arrives in England, what rights to education do they have? Ali Fiddy, chief executive of SEND legal information charity, IPSEA, explains here for SNJ that Ukrainian ---and other migrant children--- have a right to an education that meets their needs and schools have a crucial role to play.

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The education rights of migrant children with special educational needs and disabilities by Ali Fiddy, CEO, IPSEA

Like everyone else, we at IPSEA are desperately concerned about the war in Ukraine and the impact on Ukrainian citizens, whether they have remained in the country or fled across the border. More than two million people have already left Ukraine, with hundreds of thousands of children among the refugees. 

Many of these Ukrainian children and young people will have special educational needs and/or disabilities (SEND). We don’t yet know how many will arrive in the UK in search of a safe and settled place to live, even if only temporarily. We are also acutely conscious of the terrible dilemma faced by families and carers of children with the most complex needs in Ukraine, who may not easily be able to leave their homes in search of safety.

Education is one of the most important things that children need to access when they come to this country seeking refuge. In its ‘Agenda for action for uprooted children’ published in 2016, Unicef called for increased efforts in all countries to provide refugee and migrant children with access to the education and health services they need.

IPSEA shares Refugee Education UK’s concern that children and young people’s education must be “protected and respected during this crisis”. We want to emphasise that all children have the right to access education in England, including refugee and asylum seeking children. Local authorities have a legal duty to provide all children of compulsory school age in their area with a suitable full-time education, appropriate to their age, ability and any special educational needs they may have, as set out in section 19 of the Education Act 1996.

This legal duty applies irrespective of a child’s immigration status or right of residence, so all children with SEND who arrive in England from Ukraine will have the same entitlements to free, government-funded education as settled residents.

Barriers of administration

A detailed report by Unicef in 2018 found that refugee and asylum seeking children have to contend with many barriers in accessing education in the UK. To name just a few:

  • long waiting lists for school places,
  • complex online application processes that families struggle to navigate,
  • being placed in temporary initial accommodation,
  • mental health problems associated with their past experiences and
  • ongoing anxieties and trauma about the situation they have come from and the things they may have witnessed.

Children with SEND of course face all these issues and more besides. Unicef’s report, ‘Education for refugee and asylum-seeking children’, is clear that if a child’s special educational needs are already known about, they typically wait longer than other migrant children for a school place that meets their needs. Even if it’s clear that a child has special educational needs, their needs will need to be formally assessed if they are likely to require the additional support of an EHC plan – and we know how long that process can take for non-migrant children.

If a child’s needs have not yet been identified, they often remain unassessed and unsupported because schools may find it difficult to disentangle their special educational needs from their language needs as learners for whom English is an additional language.

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Language, SEND, or both?

It's essential to understand as early as possible whether a child or young person’s education needs stem primarily from language barriers or from unidentified special educational needs. 

Unicef recommends that local authorities should promote broader training and dissemination of good practice in identifying special educational needs in refugee and asylum-seeking children whose first language is not English. Their 2018 research found, 

“When children do not have English as their mother tongue, and have substantial gaps in prior learning, special educational needs can be obscured and may take longer to be recognised. Nonetheless, a small number of professionals interviewed had witnessed refugee or asylum seeking children’s education constrained by late assessment linked to a persistent refusal to acknowledge that a child’s lack of progress may not be accounted for by language difficulties alone.”

EDUCATION FOR REFUGEE AND ASYLUM SEEKING CHILDREN: ACCESS AND EQUALITY IN ENGLAND, SCOTLAND AND WALES

Schools have a crucial role to play in relation to children with SEND arriving from Ukraine. They must ensure they are prepared to: 

  • Meet children’s needs at SEN Support,
  • Help families understand the legal framework for assessing and meeting the needs of children and young people with SEND,
  • Support families to apply for EHC needs assessments and advocate for them as necessary,
  • Facilitate interpreters,
  • Signpost families to other sources of support, including SENDIASS and charities such as IPSEA

We know that understanding the education rights and entitlements of children with SEND and navigating the system to obtain the provision and support they need is a challenge for most families. For a family that has newly arrived in the country from a war zone, it is unimaginably difficult.

We urge local authorities and schools to be aware that, in addition to their recent trauma and language challenges, there will be Ukrainian children and young people arriving who also require special educational provision and support. The law is clear that this support must be provided.

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