School named on EHCP - independent mainstream v maintained special

Parents often reach out for help when they want to appeal the type and name of school on their child’s Education, Health and Care Plan (EHCP). For many children, the local maintained special or mainstream school is simply not the right fit. The special school is too generic and does not meet their child’s special educational needs (SEN). Some mainstream schools will have special units or bases for children with SEN and sometimes this may work, particularly where the unit or base specialises in the type of SEN your child has. But for some children, none of the above will be right. What is needed is a mainstream school, but one that can offer small class sizes. Often, this is found in an independent school but to get it named on an EHCP often requires an appeal to the Special Educational Needs and Disability (SEND) Tribunal.

In the case of A J v London Borough of Croydon [2020] UKUT 246 (AAC), parents won the right to have their  SEND First Tier Tribunal appeal heard again before a newly constituted panel in a decision where all grounds of the appeal were upheld.

The Upper Tribunal case was about an appeal to the SEND Tribunal about the secondary school named on the EHCP. The parents  wanted their child to remain at their current school, a small independent mainstream school, whereas the Local Authority (LA), Croydon, wanted the child to attend a maintained special ASD school.

The First Tier Tribunal found for the LA special school giving very brief reasons for its decision, stating that the independent mainstream school would be unsuitable as it does not specialise in meeting any particular special need. The parents appealed to the Upper Tribunal.

In considering the First Tier Tribunal decision, Judge West found that the First Tier Tribunal: 

• had unlawfully ordered a placement where there was nothing in Section F of the EHCP that indicated the need for a special school placement; there was nothing to say that the child required a peer group other than a mainstream one; 
• had not provided sufficient reasons or explained properly why it concluded that the special school was suitable;
• had failed to lawfully explain the basis on which it rejected points raised by the parent about the special school’s suitability;
• should not have required the parent to show that their choice of school was suitable. Given that the LA had not previously questioned suitability, it was for the LA to show why it was not suitable. The Tribunal should have sought further evidence. Judge West said 

Even if, despite there being no evidential foundation for the questions being raised and despite them actually being contrary to the evidence, the [FTT] nonetheless wanted to satisfy itself on the points, then it was incumbent on it to take the necessary steps to ensure the evidence was available to it, not simply to (in effect) bemoan the lack of anything specifically on those points and treat that as fatal to Wickham Court being considered suitable, including by inappropriately placing the burden on the parents to answer unevidenced questions raised by the council, rather than by requiring the council to make good its points.

The LA tried to argue that a new First Tier Tribunal panel would more likely reach the same decision based on the cost of provision at the independent mainstream school being greater that the LA special school. Judge West said it was not a decision for the Upper Tribunal to make, but for the First Tier Tribunal. When looking at a cost comparison, other considerations including additional benefits for the additional cost must also be considered and this must be done by the specialist First Tier Tribunal. 

You can read the full case here.

Coming up to transition?

If you are coming up to transition year i.e. moving from first to middle school, or secondary school  or post 16/19 further education, and you think your child is going to need a school or college that is different to the local offering, then plan early by starting to look at other placements and arranging visits. This can start as early as Year 5 for secondary school transitions and Year 10 for post-16 placements. If you are looking at independent schools, make sure the school has carried its own admissions process and can offer a place. You should have your preferred choice ready by the Annual Review before the end of the autumn term pre transition.

We specialise in EHCP appeals and have an excellent record for succeeding in placement appeals. Contact us early on in the process so we can advise the steps you need to take and help with your appeal.

The Boyes Turner Education Team is working remotely during this time and fully able to continue to deal with new enquiries. We can help at whatever stage you are with your EHCP appeal to the SEND Tribunal, including representation, and can be contacted on 0118 952 7219 or via senexpertsolicitors@boyesturner.com