Legal Question

Q: Whilst I know that the underlying principle of the Children and Families Act is the presumption of mainstream education, I understand that a local authority can rely on several caveats in determining where my child should go to school, including a special school even if it’s not what we want as a family. How can I use Article 24 of the United Nations Convention on the Rights of Persons with Disabilities in arguing for a good inclusive education placement when the LA has the legal power to segregate my child from mainstream education?

A: Article 24 of the United Nations Convention on the Rights of Persons with Disabilities provides disabled learners (those with mental and physical disabilities) with the right to receive a mainstream education, with appropriate support.

In theory, this means that all disabled learners within the UK should be able to access mainstream education and not be forced to attend special school placements.

However, this is not the case: the UK government has not fully signed up to Article 24, and has instead placed a restriction on Article 24, known as an Interpretive Declaration, which states that an inclusive education system in the UK includs both mainstream and special schools.

Does this limitation impact EHCPs?

The reality of this limitation is that a local authority (LA) can decide to name a special school in a child or young person’s Education, Health and Care Plan (EHCP), against a parent’s wishes, without being in breach of Article 24.

Until the UK government signs up fully to Article 24 a “good, inclusive education” can include placement at a special school as part of an EHCP.

The government has also placed a Reservation on Article 24, which states that disabled learners can be educated away from their local community if more appropriate educational provision is available elsewhere. For example a child or young person living in Manchester could be educated in Derby, if it is deemed the most suitable placement for them by the LA.

Appealing Against An EHCP

It is worth noting that these restrictions do not prevent parents from referring to Article 24 when putting arguments forward for a placement at their preferred mainstream school; it just means that the LA is not forced to comply with Article 24 in naming a placement.

If an LA does name a special school in a child or young person’s EHCP and a parent wishes to challenge this decision, it is best practice for parents to lodge an appeal with the Special Educational Needs and Disability Tribunal following the issue of the final EHCP.

As part of the appeal, parents should gather evidence from independent experts where possible, in particular an independent educational psychologist, to support their claims that an inclusive mainstream education is more appropriate for their child or young person than a special school placement.

Such evidence would need to show that the parental preference school is as capable of meeting their child or young person’s needs as the Local Authority preference special school, if not more so, particularly in accordance with the age, ability, aptitude, or special needs of their child or young person.

Parents will also need to show that a child or young person’s attendance at a mainstream school would not be incompatible with the provision of efficient education of others or the efficient use of resources.
It is the tribunal panel’s job to determine which school is considered most appropriate to meet the child or young person’s needs based upon the evidence before it from both the parent and the LA.

Rachael Smurthwaite

Rachael is a solicitor with Simpson Millar, and specialises in education law