Key takeaways
Schools must be properly consulted on EHCPs
Local authorities must follow lawful, transparent processes.
Responses should be informed and evidence-based
Schools must assess needs and justify concerns clearly.
Legal routes available to challenge placements
Options include Education Act powers and judicial review.
The number of new education, health and care plans (EHCP) continues its upward trajectory with 576,000 EHCPs currently issued, as of January 2024, which is up by 11.4% from 2023. However, the current financial constraints on school budgets mean many schools and academies are unable to deliver the education that pupils with special educational needs, need and deserve. Schools are feeling the brunt of wholly unsuitable placements and significant underfunding as a result.
When schools/academies are to be named in a draft EHCP, local authorities are required to consult with them to ensure the placement is suitable for the child. However, our team of education lawyers are often approached by schools and academies who feel that a local authority has not engaged in the correct processes and in doing so has treated them neither fairly nor lawfully. Here we examine the process and ways which schools and academies can best establish their positions on such circumstances.
What is an EHCP?
An EHCP is a legal document maintained by the home local authority under which a child or young person lives. It is a collaborative process (or should be) allowing for stakeholder voices to be heard. An EHCP sets out a child’s needs, and the additional support required to meet those needs, over and above the notional special educational needs (SEN) budget allocation that mainstream schools receive.
There are eleven sections in a final EHCP (A-K). The sections particularly relevant to schools and academies are:
Sections B – D: outline the child’s SEN, health and/or social care needs
Section E: the outcomes sought for the child
Section F: the SEN provision required by the child
Section I: the name of the institution (school/academy/nursery) to be attended by the child, or the type of institution to be attended
Section J: if there is a personal budget allocation and how this will be spent.
Appeals against section B, F and I can be made to the First-tier Tribunal by parents of children and young people.
When a specific school/academy, or other institution has been requested
Many readers will be aware that when preparing an EHCP a parent or young person can request a specific school. Under s39 Children and Families Act 2014, that request must be granted unless the matters outlined under s39(4) are met. It is for the local authority to determine if the request falls within s39(4) or, if not, to proceed to name the request school in section I of the EHCP.
It is important to note that the duty to name parental preference is qualified, and not absolute. Local authorities, as public bodies, must ensure they comply with the law on consultation in the circumstances and to carefully consider the consultation responses of the schools/academies being consulted.
When there is no request for a specific school
Where a parent or young person does not make a request for a particular school, or does so and their request is not met, s40(2) Children and Families Act 2014 applies. Therefore, the local authority must ensure that the plan either names a school or other institution which they think would be appropriate for the child or young person concerned or specify the type of school or institution that would be appropriate.
Despite no school being named, local authorities must ensure they comply with the law on consultation and carefully consider responses.
Where a parent or young person does not make a request for a particular school or does so and their request is not met s33(2) of the Children and Families Act 2014 will apply. Accordingly, the local authority must specify mainstream provision in section I of the EHCP unless:
it would be against the wishes of the parent or young person
it would incompatible with the efficient education of others or,
there are no reasonable steps the local authority could take to avoid this.
It is for the local authority to set out what reasonable steps could be put in place in to overcome the incompatibility.
The consultation process
Either way, the local authority needs to consult the proposed placement. Schools/academies should have no less than 15 days to respond to the local authority’s proposal to name them in the final EHCP. Before responding to a consultation, schools/academies should consider whether the local authority has provided sufficient information to properly consider the placement request. For example, do you have all the section K evidence listed? Also, be mindful that a proper consultation needs to allow time for the school or academy to respond fully. Consulting over a period of closure is going to impact the fairness of the consultation process.
The school’s or academy’s response needs to identify what basis the local authority is consulting upon, if is parental preference or not. it is critical to ensure that you know the tests you are responding to and can frame your response accordingly.
You must then set out your assertions by:
linking it to the section K evidence
linking it to the needs in section B and,
linking it to the provision in section F.
If you assert you cannot meet the needs, you must assist the local authority and tell them why. This equally applies to the provision in the draft plan. Also, consider direct discussions and time with the parents and child/young person so you get to understand them and engage with them before giving your fully informed response.
Once a school has responded to a consultation, the local authority needs to give due consideration to the response before deciding whether to name a placement. It should also be transparent with the parents and young person. During their decision-making process, the local authority should seek to resolve any concerns that the school/academy may have in relation to being named in the final EHCP.
The local authority should not set out to make a unilateral decision without further engaging with the school/academy on the matter. As noted above, the local authority is a public body and is subject to public law. In addressing any consultation response, it must be able to account for how it has reviewed that consultation response in accordance with the Children and Families Act 2014, and public law generally.
If an EHCP is finalised naming a school or academy which feels strongly that it cannot meet the need or provision required, then it should make its position clear to all stakeholders.
Complaints and intervention
In the first instance, a resolution should be sought with the maintaining local authority. This will be a means to keep the issue proportionate for all and give the local authority the opportunity to reflect and account.
If direct discussions do not offer a satisfactory resolution the school or academy can engage rights under the Education Act 1996 to allow them to seek directions from the Secretary of State for Education. Whilst there is no set time for this, it offers an opportunity for objectivity and review of the exercise of powers by the local authority.
Judicial review
An application for judicial review is another avenue available for a school/academy to oppose a decision made by the local authority. An application for judicial review can take place even if the section 496 application is not successful or has not been made. Tight time limits apply here, so early advice on prospects and engaging in the applicable pre-action protocol are critical to ensuring that time is managed. Judicial review is a procedure by which the courts examine the decisions of public authorities with an order to follow to seek to remedy adverse findings, including quashing plans.
Our team of education lawyers has a depth of expertise in advising schools on all stages of this process, including training. Please do get in contact if you require any assistance.
