Q:
EHCP was issued with no school named. Initially mainstream but now agreed mainstream is not appropriate. The LA have consulted for a school place with incorrect diagnosis, stating that my daughter has MLD social and behavioural needs when she is SpLD, intelligent and has no social or behavioural needs. Are they breaking the law in doing this?
A: SenseCheck
- 1 Yes
- 0 No
- 0 Other
- 20 Mar 2024
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Yes
Complex
To answer this question, it is worth breaking it up into its elements.
- Can a Local Authority issue an EHCP without naming a specific school in Section I?
The Noddy Guide addresses this particular question:
9.04 Does section I always have to name a particular placement?
To summarise the answer in the guide, Section I doesn’t always have to name a particular placement but it must set out the type of school that is considered appropriate e.g. a special school. The duty for this falls upon the Local Authority.
In this situation you have the right to challenge that decision by way of issuing an appeal to the FTT Tribunal. An appeal must be submitted within 2 months of the decision letter or within 1 month following receipt of a mediation certificate. If you are only appealing Section I of your daughter’s EHCP then you do not require a mediation certificate before submitting an appeal.
- Has the Local Authority acted unlawfully by providing incorrect information about your child’s needs when consulting with a school?
Without knowing the full facts, it is difficult to answer this question in full; however I hope the following advice is useful.
If the Local Authority had named the school in Section I of the EHCP following a flawed consultation, then it could be said that they had acted unlawfully.
Your question is indirectly considered in the Noddy Guide:
09.09 Must the LA consult with a placement before naming it in section I?
As you can see from that section, the Local Authority must comply with the ‘Sedley criteria’ which includes a duty on the Local Authority to provide sufficient information to a school to consider and respond. As the Local Authority has provided insufficient information regarding the child’s SEN the school has been prevented from being able to properly consider the consultation.
If the school in question was one you requested and, following a defective consultation, that school then responded by saying it could not meet your daughter’s needs then this could form the basis of an appeal to the First Tier Tribunal. This is because they were not fully aware of her special educational needs.
What to do about it?
In the first instance, I would recommend referring to the Noddy Guide for guidance about appealing an EHCP.
Based on your question, you should submit an appeal in respect of Section I of the EHCP and Sections B and F (if you are concerned that those sections do not accurately set out her needs (Section B) and the provision required (Section F).
At the same time, you should push the Local Authority to re-consult with the school who were previously sent the wrong information and any other school you consider to be suitable.
Furthermore, if it is the case that the child in question is now currently out of school and not receiving the provision listed in Section F of their EHCP then you ought to consider obtaining legal advice in respect of a potential judicial review claim against the Local Authority.
I hope I have answered your question.
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