Can the LA impose their own policy on consulting schools?

We have a "transition review" coming up (child in year 6) and also a contents tribunal a few weeks after that. Perhaps because of the latter, the LA are being particularly hostile and obstructive towards us.

We want them to consult with a non-section 41 school which we belive meets our child's needs. The school has indicated they'd be happy to receive evidence from us e.g. Tribunal Working Document, reports from experts (e.g. OT and EdPsych) which give a fuller picture than the current EHCP, but they want the LA to consult.

We have good reason to think they will object and try to obstruct on various grounds (which they've used recently with others)

- Refusing to consult one school before consulting others (Catch 22 for us as it's non Section 41 and we need to know whether they'll offer a place before we can name it)

- They have an internal policy that they insist on naming at least two or three schools and that one of these must be mainstream. This to me sounds like a blanket policy they've imposed locally and not law. Can I challenge it?

- Can they refuse to disclose accurate information to any other schools they consult (e.g. their own schools), if we disclose that they share it - e.g. working document, expert reports etc.?

thank you



26 Sep 2023

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A: SenseCheck

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  • 30 Sep 2023
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    Too fact specific, I can't generalise.:

    The LA has the authority to establish its own policies, albeit they must be lawful.

    I would like to refer you to the following Noddy Guide:

    09.17 Can the LA/FTT ignore the parental preference?

    the key point is that even if a parent requests a placement for a their child (who is not over 18) at a “school” not included in the following list:

    (a) a maintained school;

    (b) a maintained nursery school;

    (c) an Academy;

    (d) an institution within the further education sector in England;

    (e) a non-maintained special school;

    (f) an institution approved by the Secretary of State under section 41 (independent special schools and special post-16 institutions: approval).

    The request should not be dismissed outright. It is reasonable for the LA to, at the very least, engage in consultation. However, it's important to note that the parent's rights do not automatically guarantee that the requested placement will be included in section I of the “pupils” EHCp.

    Perhaps the most straightforward way to address this issue is by submitting a complaint through the LA's official complaints procedure, referencing the provisions of section 9 The Education Act 1996 which states:

    9 Pupils to be educated in accordance with parents’ wishes.

    In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.

    Regarding the lack of transparency in consultations, this can hinder the effectiveness of the consultation process with any possible placement. Further, I suggest that it is entirely reasonable for a parent's request to share specific, relevant information during a consultation to be complied with by an LA. Once again, using the LA's official complaints procedure could be an appropriate course of action.

    I eagerly anticipate reading any input from others who may wish to contribute to this discussion.



    Sean Kennedy

    Sean Kennedy
    Talem Law