The Journal for Executive and Governance Leaders

SEN Placements in Mainstream Schools: successful challenge by Academy confirms correct process to be used by Local Authorities

The placement of students with the most extensive Special Educational Needs and Disability (SEND) in mainstream schools continues to be a significant challenge as schools’ resources reduce. Mainstream schools have limited legal grounds for declining to be named by a Local Authority (LA) in a pupil’s Education, Health and Care Plan (EHCP), especially when parents have exercised their right to name that School as the preferred placement for their child. Schools are however entitled to the following in that process:

  1. The LA must engage in a rational consideration about whether the placement meets the legal pre-conditions (suitability, any incompatibility with the efficient education of other pupils, and efficient use of resources) rather than just implement parental preference for a place;
  2. An adequately detailed description of the pupil’s provision requirements to allow a properly informed choice of potential school placement by the LA; and
  3. An informed and meaningful consultation process between LA and School.

A recent High Court case involving Medway LA gives an example of when an LA has failed to meet these requirements.

In that case an Academy School successfully challenged the LA after it transferred an EHCP from a child’s previous LA, removed provision from the EHCP and then named the School in Section I. The child concerned was eight, diagnosed with an Autistic Spectrum Disorder, with delayed language, communication, play, and social skills as well as difficulties with attention.

The LA initially consulted the School, as required, to take the Child under the EHCP drawn up by the Child’s previous LA. The School said it was not suitable to provide for the needs identified in that EHCP. Notably it stated it did not have a sensory room, or space to install one, and because it was a junior school starting at age 7, it did not have an appropriate curriculum or peer group for the Child who was functioning at P-levels. Notwithstanding these specific concerns raised by the School, the LA issued the EHCP, naming the School, having considerably reduced the provision needed by the Child in section F of the ECHP. That amendment was not supported by any additional expert evidence and was consequently in effect just an edit down of Section F. After the EHCP was finalised by the LA, the School calculated it would need additional funds to support the Child in excess of £40,000 and the LA offered £21,151.

The placement of students with the most extensive Special Educational Needs and Disability (SEND) in mainstream schools continues to be a significant challenge as schools’ resources reduce.

Roger Inman

The School first sought the intervention of the Secretary of State (SoS) to determine the LA had acted unreasonably but acting on the SoS’s behalf, the Education and Skills Funding Agency declined to intervene. That step is necessary before any school can seek the help of the High Court.

The School then issued judicial review proceedings and the High Court accepted that the LA had not conducted a proper consultation with the School and had acted unlawfully because it behaved irrationally when amending Section F of the Child’s EHCP. Specifically, the High Court agreed with the School that the LA had put inadequate detail in Section F to identify the provision that the Child actually needed, and the Judge decided that the LA’s edit of Section F provision fell ‘very far short of the provision required’. The Judge also decided that the LA had not taken the School’s suitability adequately into account when it decided to name it as the placement.

The High Court consequently made an order quashing the EHCP issued by the LA naming the School and reinstated the detail of the Child’s previous EHCP. The LA consequently had to reconsider which school to name in the ECHP.

This case demonstrates that it is possible for a school to mount a successful challenge to the local authority’s issue of an EHCP when it irrationally ignores the extent of a child’s needs and/or the suitability of a school to meet them. Schools in that circumstance should act rapidly (there is a three month overall time limit to start a High Court case) to challenge LA consultations and, where necessary, seek the intervention of the SoS and then judicial review if the SoS fails to back the school.

Further information on this complex topic can be obtained from Oliver Daw, Stone King LLP, specialist lawyers advising schools: [email protected]