The case of Swalcliffe v Wokingham is interesting as it involves a High Court intervention on a decision by a local authority to concede an appeal brought by parents.
To understand the impact of this case, it is important to understand how parental preference operates when it comes to Education Health and Care Plan (‘EHCPs’). When parents nominate a school as their preference, the local authority is then governed by a general duty to have regard to wishes (section 9 Education Act) or a positive presumption that the local authority will comply with preference (section 39 Children and Families Act 2014).
Whether section 9 or section 39 applies is a technical point of law. In this case, parental preference meant that there was a presumption that the LA should comply with preference. When a school is named in an EHCP – and which operates under section 39 Children and Families Act 2014 – if it is amend on an EHCP there is a legal duty to admit that child. This is important because it explains what happened in this case.
In this case, the LA, contrary to clear and reasoned informed from Swalcliffe, decided to name it in a young person’s EHCO, triggering the duty to admit. Concerned that it was simply not suitable for the young person, Swalcliffe was forced to commence judicial review proceedings of this decision.
The school challenged that decision to the High Court, reasonably concerned that the young person themselves, and the cohort of children already at Swlacliffe, would be severely negatively affected by the admission.
The High Court has found in the school’s favour and has overturned that decision, and has directed the Local Authority to again, begin consultations and to recommence the proceedings before the Tribunal.
The initial appeal concerned a young person who was seeking a residential placement at Swalcliffe School, a non-maintained special school which is residential in nature and caters for children and young people with a diagnosis of autism spectrum disorder.
The Local Authority had consulted with the school on numerous occasions in respect of a potential admission to the school for the young person in question. This began by way of an EHCP and working document being sent to Swalcliffe School, upon which they decided that they would not be able to admit the pupil as they did not have a suitable cohort and they would be unable to meet the young person’s special educational needs.
Despite this initial rejection, the young person and their family, and indeed the local authority, continued to press the school to change their stance. The school agreed to assess the young person to ascertain whether their attendance could be compatible with the rest of their cohort, however, following the three day residential assessment, the school confirmed that they were not suitable and that they would not be able to admit the young person.
The school conveyed this stance to the Local Authority in increasingly strong terms. Despite this, the Local Authority, likely having not found an alternative school, wrote to the school to advise that they were going to be named in Section I of the young person’s EHCP and as such a consent order would be sent to the Tribunal. The school responded and requested that their objection be placed before the Tribunal before an order was issued.
Ultimately, a consent order was issued and an EHCP issued subsequently, which named Swalcliffe School in Section I of the EHCP. The school challenged that decision and the EHCP by way of a Judicial Review, arguing that the Local Authority had not properly undertaken consultation with the school, and that in response to the negative consultation response, had not undertaken due care and had failed to appropriately put sufficient weight on the school’s findings when deciding to still name the school in the young person’s EHCP.
The Court found that the consultation process had been appropriate, however, they agreed with the school, that the Local Authority had failed to conscientiously consider the school’s response before coming to its decision to name the school and agreed to submit the consent order in such terms.
This is an important decision for any family or Local Authority who find themselves in a position where they are continuing to seek placement at a school who had responded to a consultation request in the negative. It is clear that the Local Authority has to carefully consider the consultation response before moving to name them in any event. This, of course, does not mean that a brief consultation response which is negative and does not go into sufficient detail is sufficient grounds to refuse to name a school, however, when there is such strong reasoning for refusing to admit a pupil, Local Authorities, and indeed the Tribunal, will have to carefully consider whether it remains appropriate to ignore the views of the school in question.
It is extraordinary a school has been forced to take this approach and shows the level of concern involved at the school. The similarities to a successful precedent Judicial Review undertaken by Ed Duff of HCB are striking, and it is concerning that Local Authorities remain ignorant of their duties to consider a school’s consultant response and ensure that a child is only placed in a suitable educational placement that is able to meet their special educational needs.
As such, it is important that proper legal advice is taken when seeking to pursue that a school is named in an EHCP when they have provided a negative response. The special educational needs and disability lawyers at HCB Solicitors would be happy to speak to anyone who finds themselves in a position of having to carefully consider a school’s consultation response before or during an appeal to the Tribunal. Indeed, we would be happy to assist with appeals to the Tribunal where this is an issue. As such, we would be happy to hear from you and can provide a free consultation should you wish, by calling 0333 202 7175.