Q:

A school complaints panel has ruled that the Head teacher can deviate from providing what is well stated in section F of the EHCP, is this lawful?

I made a complaint to the LA and the mainstream primary school that my daughter was not receiving her education in line with section F of the EHCP which was very clearly and precisely stated following Tribunal.
The LA refused to address my complaint telling me that the school must consider it. The complaint went to Stage 2 at the school and the panel ruled it was reasonable and defensible for the Head not to provide SaLT, now and next trays, noise cancelling headphones etc to my child and dismissed my complaint. I am within 12 weeks of their decision, can I challenge this decision at Judicial Review or by other means? Much of the provision is now being made ironically, although some elements are outstanding.
I have written evidence directly from the Head refusing my child the provision because it was his opinion that she did not need it.

advice Section F disability discrimination Judicial Review
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Amina Tayiba
Parent
02 Mar 2024

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  • 02 Mar 2024

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    Ms Tayiba,

    I understand that the situation appears quite messy, but unfortunately, it's not an uncommon occurrence and, in my opinion, on the face of it unlawful. 

    To clarify the key legal aspects, it seems that the Local Authority (LA) may have ‘delegated’ the responsibility for the special educational provision in Section F of your daughter's EHCP to the school she attends, which is acceptable but nothing more that a local arrangement. However, if this arrangement proves ineffective, the LA remains responsible for ensuring the implementation of the specified special educational provision. This is detailed in the Noddy Guide, specifically in paragraph 08.22:

    Is the duty on the LA to secure the provision in Section F absolute? 

    In essence, local authorities have an absolute obligation to arrange the Special Educational Provision (SEP) specified, quantified and detailed in section F. It's not merely a "best endeavours" commitment. If section F lacks the required specificity, it hampers the ability of a parent or young person to enforce the LA's obligations in this regard.

    Therefore, if there was special educational provision that should have been provided for your daughter but wasn't, you have the following options:

    a) Judicial Review – I strongly recommend seeking assistance from a law firm specialising in this area of public law if this is your preference. 

    b) If you've exhausted the complaint options with the LA and there is no resolution, you can complain to Local Government & Social Care Ombudsman (LGO)

    The advantage of the LGO is that it is cost-free. Typically, people often seek the LGO's assistance for issues like the one you have detailed and have been known to request:

    a) An apology from the LA. 

    b) Immediate implementation of the missing special educational provision. 

    c) Compensation for missed provision.

    You can find decisions on the LGO website, many of which align with the circumstances you've outlined. Reviewing these decisions will provide insight into how the LGO responds to complaints.

    Note that the decisions of the Local Government Ombudsman are generally binding on the involved local authorities. Local authorities are expected to implement the recommendations made by the LGO to resolve the issues raised in a complaint. However, it's essential to note that the LGO doesn't have legal powers to enforce its decisions directly. 

    More information about the procedure can be found here:

    https://www.lgo.org.uk/make-a-complaint/faqs

    I hope this is helpful, and I eagerly await any further contributions.

     

    Sean Kennedy

    Sean Kennedy
    Talem Law

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