The first blog post in this two-part series looked at the legal framework governing how to choose a school with an Education Health and Care Plan ("EHC Plan"). This post focuses on the two most common reasons why parents and carers appeal placement: namely that a school (or college) is either too full or too expensive. It is much rarer for a local authority to argue that a school is unsuitable (and in the case of mainstream placements effectively impossible for them to do so).
Too Full
Parents and carers are frequently told that whilst a school they wish to name at Section I of an EHC Plan is suitable, that school cannot be named as there are no places available; in other words, it is full. The first point to note is that being full is not a lawful reason to refuse a child or young person a place at a setting. The wording in the legislation (s.39(4) Children and Families Act 2014) states that a local authority may refuse to name the parents/carers choice of setting if:
The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) of the child or young person; or
The attendance of the child or young person would be incompatible with the provision of efficient education for others; or
The attendance of the child or young person would be incompatible with the efficient use of resources.
When a local authority asserts that a school is full, they are in effect relying on the second of these reasons: namely that the attendance of the child or young person would be incompatible with the provision of efficient education for others. However, for this exception to apply it is not enough for a school (or college) merely to have exceeded its Published Admissions Number (“PAN”) and/or to state that admitting an additional pupil would stretch its resources/dilute the provision it is able to offer. Rather, it must be shown that the attendance of the specific pupil in question would be incompatible with the efficient education of others, and to do this there would need to be “some clear identification of just what difference [his] admission would have and to the efficient education of which children... so as to meet the strong test of incompatibility.” [NA v London Borough of Barnet [2010] UKUT 180 (AAC)]. This is quite a high bar and one that schools and colleges frequently fail to meet when properly advised on what it is they must demonstrate. Ultimately, however, it is a question of fact and will vary in every case because every school's circumstances are different, and every child is unique.
Too Expensive
This argument, which routinely arises where parents/carers are seeking independent settings, concerns the cost of the preferred placement and falls within the third of the above exceptions: namely that attendance of the child or young person would be incompatible with the efficient use of resources. What this means in practice is that the cost to the public purse of the parent/carer’s choice of setting is excessive. It does not mean that if the parent/carer preference is at all more expensive it cannot be named. Rather it requires that the local authority balance the weight the law gives to parent/carer choice against the additional cost incurred by that choice. If the difference is relatively small (as a rough guide £4-6,000 per year or less) then the placement is unlikely to be considered ‘inefficient’ (in Essex County Council v the Special Educational Disability Tribunal [2006] EWHC 1105 (Admin)). In practice, however, it is often the case that the cost differential is significant (frequently £10,000s) and the only way to overcome this argument is to demonstrate - by way of evidence - that the local authority’s choice of school is not in fact suitable, and that therefore the question of inefficient use of resources does not arise at all.
SEND Advocacy can advise on placement issues and support you to obtain the right setting for your child or young person. If you need someone in your corner to help you secure the education your child or young person deserves, contact us today.
