Special educational needs (SEN) and education, health and care plans

Across the sector we are seeing an increase in schools being named in a child’s education, health and care plan (“plan”) despite the schools in question being wholly unsuitable for the child’s needs. Managing this increase in unsuitable placements is challenging for many schools, particularly ensuring that any challenge is robust and relies on the key legal grounds set out in the Children and Families Act 2014 and the special educational needs and disabilities (SEND) code of conduct.

Consultation and challenging the placement

When the local authority has prepared a draft plan for a child and provided it to the parents, the parents can make representations on the content. As part of this, they may request that a particular school is named in the plan. Where the parents make such a request, the local authority must consult the governing body of the school, providing 15 working days for the school to provide its views.

It’s important for schools to be aware that, in accordance with the Children and Families Act 2014, there are three grounds which can be relied on to challenge the placement of a child where a request has been made to name the school in the plan:

• The school would be unsuitable for the age, ability, aptitude or SEN of the child concerned
• The attendance of the child would be incompatible with the efficient education of others
• The attendance of the child would be incompatible with the efficient use of resources.

When challenging the placement, the consultation response forms a key part of any evidence in an appeal, so it is important to analyse the provision and needs set out in the plan on a detailed, individual basis. For instance, the school may include detail such as the capacity at the school and the impact of this on the proposed placement, the number and needs of vulnerable children already at the school, and specific concerns which the school has in respect of supporting the child and making reasonable adjustments.

Using this tailored information helps demonstrate that the school has carefully considered the proposal, and the child’s needs, prior to making a decision to challenge the placement.

In some cases it may be that helpful information such as safeguarding information or relevant risk assessments have not been provided by the local authority, so schools should take the opportunity to request any other information. Schools may also conduct their own risk assessment, demonstrating why the placement is unsuitable for the child. However, if ultimately the local authority names the school in the plan, the child must be admitted.

Where might the local authority fail?

The local authority is required to consider the school’s comments very carefully before deciding whether to name the school in the plan. However, recent case law has seen local authorities coming under scrutiny for failing to engage in a proper consultation.

In 2019, an academy trust brought judicial review proceedings against a local authority. It was found that the local authority had failed to engage in proper consultation and to give conscientious consideration to the school’s response that it would be an unsuitable placement.

The concerns included that there were no trained or experience staff to cater for the child’s severe autism, that a sensory room – which the child needed –  was not available and could not be built, and the child would not have access to an appropriate peer group. Despite this, the local authority named the school in the child’s final plan.

In a judgment which was critical of the local authority, it was stated that the local authority had unlawfully “eviscerated” the special educational provision set out within the plan, and the lack of a proper Section F of the plan meant that it was impossible to engage in any proper consultation with the school to enable a decision as regards suitability.

Furthermore, in a recent judicial review, a local authority was also found to have failed to engage in sufficient dialogue and engagement with the school, and therefore the requisite standard of conscientious consideration was not met. Accordingly, the local authority’s decision to name the school was quashed.

Therefore, schools should carefully consider the correspondence received from the local authority and whether there has been true engagement and ‘conscientious’ consideration during the consultation process. This may involve, for example, reviewing the time which has elapsed between the school’s response to the consultation and the local authority’s ultimate decision, or whether the local authority has addressed any of the specific concerns raised by the school.

Practical steps

We appreciate that this is an increasing issue across the breadth of the sector, and we are frequently approached by mainstream and special schools seeking support both in respect of the initial consultation response to the local authority, and to challenge the placement to the Secretary of State. Submitting a robust and tailored challenge is essential to avoid a child being placed in an unsuitable setting.

If the challenge is unsuccessful and the final plan names the school, there is a duty for the school to admit the child. Failure to do so may lead to a parental complaint, or a potential disability discrimination claim in the First-tier Tribunal (Special Educational Needs and Disability).

In addition, we are aware that the local authority progressing with an unsuitable placement risks the child having potential behavioural issues at the school. If a school finds itself in this situation, it may need to consider enforcing an appropriate sanction in line with its behaviour policy. However, before considering using exclusion as a sanction where a child has a plan, an emergency review should be requested.

Schools are increasingly considering making a complaint to the Secretary of State seeking a determination that the local authority has acted unreasonably in naming the school. In the interim, it may be possible to agree alternative provision. This can help to avoid a situation of the child joining the school whilst the complaint is considered by the Secretary of State.