09.09 Must the LA consult with a candidate placement before naming it in section I?

Noddy 'no-nonsense' Guide

Noddy 'no-nonsense' Guide
Authors: David Wolfe QC, Leon Glenister
14 Feb 2022

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  • 14 Feb 2022
  • Yes


    Yes. The LA must consult before naming a placement: CFA2014 s39(2), s40(3).

    However, a school should be careful before refusing to admit a CYP on the basis it was not consulted by the LA. Where a school is named in an EHCP, the refusal to admit due to a failure to consult can be challenged by judicial review and costs ordered against the school (even if the Secretary of State has agreed with the school in a determination under EA1996 s496 that the LA has unreasonably named the school in question): N v Governing Body of a School [2014] EWHC 1238 (Admin).

    A school can challenge the legality of the LA issuing of a plan where it is unsuitable. But such a challenge would not succeed unless there was something unlawful anout the LA’s decision. It would not be enough merely for the school to disagree with the LA’s assessment of (say) its suitability.

    An example of illegality was seen with R (An Academy Trust) v Medway Council [2019] EWHC 156 (Admin) where the Court found, when it was transferred the child’s LA from RB Greenwich, Medway Council had irrationally removed provision from Section F to name a particular school. 

    The school is also able to ask the Secretary of State to intervene pursuant to EA1996 s496 on the basis an LA has acted unreasonably.

    Note in that regard that maintained schools, academies and section 41 schools have a duty to admit where named in the EHCP: CFA2014 section 43

    Most academies also have a clause in their funding agreement providing that the academy can seek the Secretary of State’s determination as to whether the LA should have named the academy. However, that determination is still subject to an appeal to the FTT.

    Noddy 'no-nonsense' Guide

    Noddy 'no-nonsense' Guide
    Authors: David Wolfe QC, Leon Glenister