Q:
Can council name an out of area mainstream school instead of a local school if both can meet need?
We visited a large number of local mainstream schools (including some suggested by SEN case worker) but didn't think any of them could meet the needs in the EHCP. Therefore we named a specialist school, and an out of area mainstream more experienced in supporting children with similar needs to our daughter. The LA consulted with an additional 4 schools which we / SEN case worker did not consider. We had been clear to our SEN Caseworker that our preference was for a mainstream school if they could meet all of the needs in the EHCP, but that we had not found one locally.
LA named the out of area mainstream due to 'parental preference', and are therefore saying they won't provide transport as they could have named a local school.
What are the scenarios where LA can name a school that was not listed in parental preference? Can LA account for broader information by provided by the parents, not just the actual listed schools?
A: SenseCheck
- 1 Yes
- 0 No
- 0 Other
- 16 Mar 2024
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Yes
Simple
Summary:
When issuing an Education, Health, and Care plan (EHCp), the Local Authority (LA) determines the content of section I (placement), but they should ensure the SEP in section F can be provided. Transport cost considerations in mainstream placements come into play, for example an 'out of area mainstream school', which could incur higher transport costs. LAs can consider and select schools they consider a child could attend; if parents disagree, they can appeal to the First-tier Tribunal (FtT). Concerning transportation, the LA may request parental arrangement to manage public funds. It's crucial to ascertain the LA's alternative school choice and assess the rationale behind transport costs.
Requesting detailed cost breakdowns aids in evaluating the LA’s decision. When issuing an Education, Health and Care plan (EHCP), the Local Authority (LA) make the final decision on what information is included in section I (placement). However, they should ensure that the special educational provision specified, quantified and detailed in section F can be provided. Further the efficient use of resources is also important and and an ‘out of area mainstream school’ may be more costly if transport is provided (see below). But, in summary, it is acceptable for a LA to have their own opinion as to which schools (mainstream or special) a child should attend, and these may not have been put forward by a parent. If parents prefer their child to attend a mainstream school but the local authority (LA) disagrees, they can only the claim the child's presence would be incompatible with the effective education of other children (they will be educated with) and no reasonable steps can be taken to remove this incompatibility. Should a parent (or young person) disagree with the LA's decision, they have the option to seek assistance from the First-tier Tribunal (FtT).
Your query touches on themes previously addressed. Therefore, I recommend reviewing the following link, which delves into the issue of 'suitability' in mainstream education and highlights its irrelevance, along with considerations regarding placement costs:
https://supportsendkids.org/question/1709110863824
After reading this answer and the relevant sections in the Noddy Guide, you may take the view that a local mainstream school/s could be ‘made suitable’ for your child. If you take the view that this is the case, then your parental preference may change.
Regarding the transportation situation presented to you, I suggest summarising it as follows:
There are two mainstream schools available for your child to attend, yet the LA has concurred with your chosen school preference. However, they stipulate that you must arrange transport yourself, deeming it an inefficient use of resources for them to do so. It is noteworthy that the parents' preferred school has been identified, while the local authority's preferred school has not.
Many parents are faced with this situation, so it's worth dedicating some time to discussing this scenario.
For further insights into the relevant legal framework, please consult the Noddy Guide:
That said, in this situation maybe a parent could consider posing the following questions to ascertain the LA's stance and evaluate its validity. For illustrative purposes, let’s assume both schools are mainstream schools.
a) Which specific school, purportedly closer to the child's home, does the LA assert they 'could' have named in section I? Without this information, it is impossible to assess the relevant transport costs informing their decision. Moreover, knowing the identity of the alternative school enables a parent to evaluate its suitability for your child.
b) Should a parent uncover the identity of the alternative school, it could be contended that only marginal costs are pertinent when calculating respective transport costs. Marginal costs pertain to the additional expenditure incurred with each additional unit. For instance, if the LA already transports children to both schools and there is available capacity on the bus(es), it could be argued that the relevant cost is zero.
In such cases, parents frequently seek detailed cost breakdowns from the Local Authority (LA) that were relied upon to justify their decisions. This facilitates a thorough evaluation of the LA's stance. If the LA does not provide this information, parents can contemplate utilising the complaints procedure to acquire it. Furthermore, in the event of an appeal, parents (or the young person) have the option to request that the Tribunal order disclosure of the information is not forthcoming.
Lastly, while transportation is not directly within the remit of the FtT (although there have been suggestions it could be considered special educational provision in certain limited cases), it can, as we both know, address placement issues.
I trust this information proves beneficial, and I eagerly await any further contributions.
Sean Kennedy
Sean Kennedy
Talem Law
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