This is Part 3 of a 3 Part series of blog posts on appealing Education Health and Care Plans ("EHC Plans"). This blog focuses on appeals against section I (Placement). Part 1 looked at appealing sections B (Needs) and F (Provision) and Part 2 considered extended appeals that include sections C and G (Health) and D and H (Social Care). General guidance on time limits and the requirement for mediation can be found in the blog post on Refusal to Assess ppeals; although if you are only appealing Section I there is no requirement to mediate or obtain a mediation certificate.
If you are appealing for a maintained school or an independent school that is s.41 approved then under section 39(4) of the Children and Families Act 2014 ("CAFA") there are a limited number of lawful reasons why a local authority can refuse to name the parent/carer's choice of school, and appeals against Placement invariably relate to two of them: (1) incompatibility with the efficient education of others ("the incompatability test") and (2) inefficient use of resources ("the inefficiency test").*
For a local authority to meet the incompatability test it is not enough for them to show that the school is oversubscribed; often what is meant when a school asserts that it is “full”. Instead there must be clear evidence of the difference that the admission of that one extra child will make in order to reach the high threshold of incompatability: NA v London Borough of Barnet (SEN) [2010] UKUT 180 (AAC). This is a question of fact for the local authority (or the Tribunal standing in the shoes of the local authority), and is likely to require consideration of a number of factors including the size of the school as a whole, the specific needs of the child wishing to be admitted and those already in the school/class, and the measures that can or cannot be taken to mitigate against the impact of the additional child’s attendance.
To succeed under the inefficiency test, the local authority must prove that placing the child in the school of parental preference constitutes an inefficient use of resources (i.e., is too expensive), and this is again a question of fact. Even where it can be shown that the parental preference is more expensive, in determining whether or not that additional cost is ‘inefficient’, the local authority must then go on to balance the (not insignificant) weight afforded by the legislation to the primacy of the parental request, against the additional cost incurred by that request. Again, this is a question of fact.
In addition, the issue of inefficeinty is only relevant if the local authority can show that its preferred placement is suitable. If it cannot, the question of cost does not arise. For this reason, placement appeals often focus on whether or not a school is 'suitable'. Again, this is a question of fact and it is determined by reference to the Special Educational Provision ("SEP") required by the child or young person, as set out in section F of the EHC Plan. This is why it is so critical to ensure that the SEP in section F is accurate and comprehensive. It is important to remember, however, that a school does not have to the best fit for a child or young person in order to be suitable and that local authorities are only legally obliged to provide what is reasonably required.
For further discussion on the law around placement, see blog posts on choosing a school here and here.
SEND Advocacy can advise on appeals against placement 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.
*If you are appealing for a wholly independent school CAFA doesn't apply.
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