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• 14 Feb 2022

• Yes

  Complex

  Yes. By section CFA2014 s61, an LA can make provision out of school if appropriate provision cannot be made in school:

  “(1) A local authority in England may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school or post-16 institution or a place at which relevant early years education is provided.

  (2) An authority may do so only if satisfied that it would be inappropriate for the provision to be made in a school or post-16 institution or at such a place.

  (3) Before doing so, the authority must consult the child’s parent or the young person.”

  One slight change from the position under EA1996 s319 is that there is no longer an express power to arrange part of the SEP to be delivered otherwise than in school, although that remains permissible and so there is no effective change in the law: NN v Cheshire East Council (SEN) [2021] UKUT 220 (AAC) #30.

  The LA must decide if it is “necessary” to educate a child or young person other than in a school or post-16 institution, but what is “necessary” is cast in terms of whether it is “inappropriate” for provision to be made in school or post 16 institution. Therefore case law on what “inappropriate” means is directly applicable, as are the cases on what constitutes a school.

  The term “a” school should be read as “any”, so that it must be shown it would be inappropriate for the provision to be made in “any school or post-16 institution”: Derbyshire CC v EM and DM [2019] UKUT 240 (AAC) #18, NN v Cheshire East Council (SEN) [2021] UKUT 220 (AAC) #28.

  The first question to be asked is what does the CYP need (i.e. decide on Section F) and then decide if that can be provided in school: S v Bracknell Forest [1999] ELR 51. 

  In NN v Cheshire East Council (SEN) [2021] UKUT 220 (AAC) #47, the UT gave helpful guidance on how to approach cases where education otherwise than at school is proposed.

  • The FTT must first consider CFA2014 s61 and “ask whether it is satisfied that it would be inappropriate for (i) any special educational provision that it has decided is necessary for the child to be made in any school and (ii) any part of the provision to be made in any school”.
  • In looking at that, the FTT should consider TM v Hounslow [2009] EWCA Civ 859#26: To answer the question whether or not it would be “inappropriate” for provision to be made in a school, it is not enough to ask whether the school “can” make the SEP set out in section F. One must ask if the school “would not be suitable” or “would not be proper”. That requires the LA to take account of the circumstances of the case which would include the child’s background and medical history, the particular educational needs of the child, facilities that can be provided by a school and otherwise than at a school, the comparative costs of alternative provisions, the child’s reaction to the provisions, the parents’ wishes and any other particular circumstances that might apply. A child’s anxiety may lead for it to be “inappropriate” for provision to be made at school: M v Hertfordshire CC [2019] UKUT 37 (AAC)#45.
  • If the FTT is not satisfied that it would be inappropriate for any such SEP to be made in school, it follows that particular school or type of school would be appropriate, which leads to consideration of Section I.
  • At this point, there may be consideration of whether a particular educational institution is a “school or not”. More: Can a “unit” within in a school be treated as a separate school in its own right for the purposes of a placement request?
  • If in issue, the FTT should consider whether the school or type of school will be “attended by” the child. The requirement to specify the school the child “attends” in Regs2014 reg 12 is “to be present at”: NN v Cheshire East Council (SEN) [2021] UKUT 220 (AAC) #43. If attending for at least part of the time, the school or type of school must be specified in Section I; as will a bespoke package outside a conventional classroom setting: NN #47(f).
  • What specified must be strictly limited to the name and type of school. Any approved home tuition is not put into Section I: East Sussex CC v TW [2016] UKUT 528 (AAC)#33. Anything specified in additional to the name and type of school is likely to be an error of law: NN v Cheshire East Council (SEN) [2021] UKUT 220 (AAC) #46, #47(g). Note that previous case law had come to a different view. It had been considered that where a “home programme” is identified (e.g. Lovaas) that should be described in section F (previously Part 3) and can also be described in section I (previously Part 4): Wandsworth v K [2003] EWHC 1424 (Admin) #14. In M & M v West Sussex CC (SEN) [2018] UKUT 347 (AAC) #68, the UT decided that there remained a requirement to specify a type of school in section I, which can be met by specifying the type of school which is the ultimate aim to become appropriate for the child; or where part of the overall package is at a school, that type of school. However, in Derbyshire CC v EM and DM [2019] UKUT 240 (AAC) the UT found that M & M is wrong on this point and that the duties in section 39(5) and section 40(2) on the LA to name an “appropriate” school do not arise where it has decided a child should have education otherwise than at school and therefore it would be inappropriate for the provision to be made at school.

  More: Are all children with SEN educated in a school?

  Go to Glossary

  

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

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