Bullying of SEN children - will the new law help?

Research has shown that children with disabilities are more likely to be subject to bullying with substantially higher levels of constant and occasional bullying than peers without any form of disability or special educational needs.

The research highlights that at age 7, 12% of children with SEN said they were bullied ‘all of the time’ by other pupils. Only 6% of 7 year olds without special educational needs felt that they were bullied ‘all the time’.

The law

It is a well-established principle that schools are responsible for the welfare of children whilst they are in charge of them. The Courts have also held that schools can be held responsible for any harm caused to child ‘A’ by child ‘B’ whilst both children are in the care of the school.

The legislative provisions generally are that the school should “protect and promote” the welfare of all of its students (s175 Education Act 1996). This is a very general duty but ultimately requires that schools are proactive in their approach to children’s welfare, including issues such as bullying.

Additional duties to protect children with SEN?

The Children & Families Act 2014 is also likely to have some impact on this issue.

Children with severe SEN will, until 1 September, have been issued with a Statement of SEN. From 1 September the Statement is being replaced with the Education, Health and Social Care Plan (EHCP).

The EHCP, as the name suggests, will describe all the education, health and social needs of the particular child. In addition, one of the key principles of the new law is that support and services must be made available to children with SEN so that they are able to achieve the best possible educational, social and health outcomes.

Therefore, it is entirely possible that this will create an additional duty on the school / local authority to prevent bullying. It may well also be that additional funding and/or resources could be allocated in order to prevent the bullying and help the child recover from any bullying they have suffered.

It is yet to be seen whether the key principles and the EHCP can be used to the full extent that most parents, and their lawyers, are hoping and pushing for.