Our School Support Service is often asked by maintained schools and academies how it can challenge being named in a child’s education, health and care plan (“EHC plan”). This briefing note summarises what challenges can be made and the basis of the argument that should be made.
The proposal to name the school/academy
Where a local authority proposes to name a school/academy in an EHC plan, it must send a notice to the school/academy confirming this and inviting representations within 15 calendar days. This is usually achieved by the local authority sending a letter to the school/academy, often attached to an email.
It is important for schools/academies to be ready to send a properly made response within the 15 calendar day window, and to ensure that the representations they make are on the correct legal grounds.
The statutory test
Under current legislation relating to special educational needs (“SEN”) and the SEN & Disability Code of Practice 2015 (“SEND Code”), the local authority must comply with parental preference for a particular school/academy unless:
- The school/academy is not suitable for the child’s age, ability, aptitude and/or special educational needs; and/or
- The child’s attendance at the school/academy would be incompatible with the efficient education of other pupils, and there are no reasonable steps the school/academy can take to prevent that incompatibility; and/or
- The child’s attendance at the school/academy
its resources, and there are no reasonable steps that the school/academy can take to prevent that incompatibility.
Representations by the school/academy
The school/academy should ensure that representations they make within the 15 calendar day consultation window are based on one or more limbs of the statutory test set out above. Where possible, they should be supported by statistical or other supporting evidence.
The representations can be prepared by the SEN Coordinator (“SENCo”) or Inclusion Manager, but should be made by way of a formal letter on headed notepaper, and approved and signed by the Headteacher/Principal. Both the SENCo or Inclusion Manager and the Headteacher/Principal should be fully familiar with the standard procedure and the statutory test.
The letter is an extremely important stage of the process as, if the local authority chooses to ignore the representations made and goes ahead with naming the school/academy, this decision can only be really challenged where the school/academy is confident that it can establish that the local authority has acted unreasonably in doing so.
The next stage
Following receipt of representations by the school/academy, the local authority will need to consider these and decide whether or not to name the school/academy in the EHC plan. Unfortunately, there is no statutory timescale in this respect, and schools/academies must therefore be prepared to chase the local authority for a decision after a short interval. When the local authority issues the final EHC plan naming a school in Section I, both that school and the parents must be sent a copy of it.
Challenging being named in an EHC plan
Where a local authority goes ahead and names a school/academy despite their representations that the placement is unsuitable, the school/academy is under a statutory duty to admit the child.
It does not matter whether there is a place available or not, as children with an EHC plan naming the school/academy must be admitted. This applies equally to children who are below or have ceased to be of compulsory school age (it should be noted that, for the purpose of the statutory maximum infant class size, children with an EHC plan admitted outside the normal admission round are “excepted pupils” and do not count towards the class size).
The school/academy can only challenge being named in the EHC plan by making a complaint to the Secretary of State that the local authority acted unreasonably by doing so, seeking a direction to the local authority to resolve the matter.
Making a referral to the Secretary of State
Section 496 EA 1996 contains a general provision allowing any person (including the Governing Body of a maintained school and the proprietor of an academy) to complain that a local authority has acted unreasonably with respect to the exercise or performance of their duties (including SEN duties).
“Unreasonableness” has been defined by the Courts as acting in a way in which no reasonable local authority would have acted in the circumstances.
The complaint should be carefully prepared by way of a formal letter on headed notepaper, signed by the Headteacher/Principal, and should clearly set out that it is submitted under Section 496 EA 1996, that the local authority have acted unreasonably by naming the school/academy in the face of the representations made, and that the school/academy is seeking a direction that they should not have been named.
A copy of all relevant documentation should be listed in the letter and attached, including the original proposal to name, the representations made, any response received from the local authority and the EHC plan.
A copy of the letter and attached documents should also be sent to the local authority. In some cases, where there has been communication between the school/academy and the parents, it may be appropriate to also send a copy to the parents, particularly where they are considering lodging an appeal to the First Tier Tribunal (SEN & Disability) (“SEND Tribunal”).
For academies, this procedure is summarised in their funding agreements.
Parental preference and appeals to the SEND Tribunal
It will clearly be a relevant factor whether the parents have expressed a preference for the school/academy, or whether the local authority have simply decided that it is suitable for the child.
Where the parents have expressed a preference for the school/academy, this does not prevent it from challenging being named in the EHC plan on the grounds of one or more of the three limbed statutory test set out above.
Where the parents have not expressed a preference for the school/academy, and have expressed a preference for another school/academy (including a special school/academy), this can also be included in the school/academy’s representations.
In these cases, the parents may well also want to lodge an appeal to the SEND Tribunal against the school/academy being named. If an appeal is lodged, the ruling of the SEND Tribunal will be binding on all parties. Otherwise, the Secretary of State will make the final decision.
Often, local authorities will pursue a placement at a school/academy they believe will not challenge their decision. Even if making representations against being named to the local authority or lodging a complaint with the Secretary of State is unsuccessful, the fact that the school/academy is aware of its options and prepared to use them may deter the local authority from pursuing the school/academy in the future, except in appropriate cases.
For further information, or for advice and assistance with making representations or lodging a complaint, please speak to our School Support Service team, via our helpline 0345 070 7437 or email us at schoolsupport@wslaw.co.uk.