Martin Mensah, Head of 9SJS Special Education Needs and Disability team shares his insight.
What is the position when a local authority deems a placement suitable but the School does not feel that it can provide a place for a child?
Parents are entitled to have a particular school of their wishes named.
In accordance with s.39(3) Children and Families Act 2014, the parent or young persons requested placement must be named unless one of the exceptions in s.39(4)(a) or (b) applies, namely:-
a. the school or institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person, or
b. the attendance of the child or young person at the requested school or other institution would be incompatible with –
the provision of efficient education for others, or
the efficient use of resources.
I have been asked to advise on a number of these matters recently where the parents and the local authority agree but the sole resistance comes from the school that is named.
In this scenario, the following are the key considerations:
1. Once named, a school is legally bound to accept a child by virtue of s.43(2) Children and Families Act 2014.
A school cannot appeal to the First Tier (SEND) Tribunal against being named in the plan.
Their redress lies in asking the Secretary of State to intervene under s.496 Education Act 1996, issuing a direction to the local authority (a discretionary power) or seeking a judicial review of the decision of the local authority.
2. The local authority must consult with the school.
If the school sets out that it has, (for instance)
- difficulties in managing the childs SEN,
- finding them a suitable cohort,
- has a lack of space for breakout areas
- and/or has serious safeguarding concerns,
these issues must be adequately addressed in correspondence/meeting with the school.
A cursory consideration but failure to engage with the issues by the school is wholly undesirable.
Of course, it may be that such dialogue can ameliorate the concerns of the school. The promise of additional funding or resource (e.g. 1:1 support assistant) may be sufficient to progress matters.
Paragraph 9.80 of the SEN Code of Practice provides that:
‘The local authority must consult the governing body, principal or proprietor of the School or college concerned and consider their comments very carefully before deciding whether to name it in the child or young person’s EHC plan’.
In practice, consultation means:
- Any decision must be at a formative stage
It cannot be a fait-accompli – this is not genuine and worthwhile consultation
- The school must be given sufficient information to enable them to consider/respond to
- The school must be given adequate time to respond
- The response received from the school must be given conscientious consideration
If the school raise points, consider them and rebut with evidence where possible or seek further information.
These are derived from the Gunning principles from R v Brent London Borough Council, ex parte Gunning, (1985) 84 LGR 168 (endorsed in by Lord Wilson in R (Moseley) v London Borough of Haringey  UKSC 56 and noted as a ‘prescription for fairness’) These are that:
- Consultation must be at a time when proposals are still at a formative stage;
- The proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response;
- Adequate time must be given for consideration and response; and
- The product of consultation must be conscientiously taken into account in finalising any statutory proposals.
One has to consider the practicalities - the school and local authority need to have a cohesive and productive relationship to ensure that the needs of the child are met.
Having a prolonged conflict over placement of a child with all of the potential resentment and stresses that that brings suits none of the parties involved.
From a practical point of view, it would be wholly undesirable for a school to feel that they had no option but to take legal action against (judicially review) the local authority who had “foisted” a child upon them against their will with all of the cost and time involved.
There is the fact that the parents (who want the school named) will likely find it incredibly difficult to have a productive relationship with a school who has made it clear that they “do not want” their child.
This is obviously the worst case scenario and will only serve to fracture relationships.
Full consultation and engagement between the parties is key.
It is important for the local authority to fully understand the concerns raised by the school and whether they are actually as insurmountable as the school advances.
There is balance to be struck between the parents wishes and the reality of whether the school can actually meet need.
Regrettably, if the matter cannot be resolved and the offer of additional resources etc. cannot ameliorate the concerns of the school, it may suit all parties to seek an alternative placement to be named in Section I.
This avoids the potential conflict, aggravation and relationship breakdown which will not serve to provide a productive or healthy relationship between the parties and crucially, cater for the needs of the child.