Legal Question

“My daughter Mia, aged 11, has Down syndrome, Autism and Epilepsy, and we live in rural England. Mia had a positive experience in her mainstream primary school, where a good circle of support staff ensured all her different support needs were met. She also had a network of close friends, with whom she enjoyed various extra-curricular activities, both in and after school. Mia has been looking forward to going the local mainstream secondary school in September, which also has good extra-curricular activities, where she would join some of her primary school friends as well as making new friends. The school Mia wants to attend lies between our house and her grandparents’ house, and she also has an older brother who attends the school, so she will have additional family support including us or her grandparents collecting her after school. However, the local authority is not in a position to fund all her support needs in this secondary school, which we are very disappointed by. What rights do we have this secondary school named on her EHCP, to enable her to have support in secondary school, and who has final responsibility for this?”

Unfortunately, you do not have an absolute right to have your preferred school named in Mia’s EHCP, but there is a presumption that the local authority (LA) should name your preferred school in Mia’s EHCP, and this should be the LA’s starting point. This is because your preferred school is a mainstream school (I have also assumed it is a state school), which the LA should name unless particular exceptions apply. The onus is on the LA to set out why these exceptions apply rather than you.

These exceptions are:

• That the school is unsuitable for Mia’s age, aptitude, or ability. In other words, it cannot meet her needs.

And/or

• To place her there would be prejudicial to the efficient education of other students and/or use of resources.

If the LA does not agree with your preferred school and allocates Mia a school elsewhere, they need to name that other school on her EHCP no later than 15^th February in the year she is due to transfer. At that point, you will have a right of appeal to the Special Educational Needs and Disability Tribunal (the FTT).

During the course of your appeal, it would be wise to focus your evidence on why/how your preferred school is able to meet Mia’s needs. Whether the FTT finds your preferred school to be suitable for Mia’s needs will depend largely on what is specified in Sections B and F of her EHCP. The question is: does the school offer what Mia needs? The school’s own views are relevant. If they think they can meet need, there is a good chance that the LA or the FTT standing in their shoes will agree. If they don’t, your appeal will be more difficult but not impossible, as the FTT will consider all the evidence in the whole.

If the school is found to be suitable, the FTT will go on to decide whether Mia’s attendance at the school would be incompatible with the “efficient use of resources”. Whether this exception will apply will depend on what provisions Mia needs to meet her SEN, and how much they would cost the LA/public purse. I.e., if the LA names a school which already has all the provision Mia needs but your chosen school would require significant funding to meet need, this exception could apply. This is very individual to the facts, and you would benefit from detailed legal advice should this exception be relied upon by the LA.

You also asked about who has final responsibility for providing the support named in Mia’s EHCP. This rests with the LA. If Mia does not receive the provision in her EHCP, legal action can be taken against the LA.

To summarise, you do not have an absolute right to have your preferred secondary school named in Mia’s EHCP, but you do have a right to appeal against the LA’s refusal to name the school, and there is a strong presumption in favour of parental preference. Based on what you have told us, that you requested a mainstream (we think state) school which is local to you and to which you could arrange transport, you have a strong starting point. We wish you and Mia all the best.

This legal question was posed by Edmore Masendeke,  Michelle Daley, and Louise Arnold. It was answered by Eve French from Simpson Millar Solicitors.