Council's "evisceration" of details in a child's Education and Health Care Plan was unlawful 14 February 2019

School successfully challenges council's alteration of an Education and Health Care Plan and naming of an unsuitable school

Local authority obligations

When dealing with EHCPs, local councils have various statutory obligations. For example, councils have a duty to make sure that the EHCP provides for mainstream education for a child or young person unless that is incompatible with the wishes of the child's parent or the young person themselves, or it is incompatible with the education of others. Further, the local authority has a duty to ensure that the specified educational provisions outlined in the EHCP are provided. EHCPs must be reviewed every 12 months and must be re-assessed in certain circumstances, including when the named school requests it.

The SEND Code of Practice 2015 sets out at section 9.69 what should be included in an EHCP. Section F of the EHCP should include the detailed and specific educational provision required by the child. 

Case details

Upon the child, who suffered from Autism Spectrum Disorder, moving to Medway from Greenwich, the EHCP that was previously in place was transferred to Medway Council. The council asked a school to accept the child, but they refused on the grounds that they were unsuitable, as they were unable to provide for the child's needs identified in the EHCP, such as lego therapy, a sensory room, and staff trained in signing and Picture Exchange Communication System (PECS).

Medway Council subsequently amended the EHCP, removing large sections that gave details of required provision for the child. It also named the school in the EHCP so that it would be legally bound to accept the child.

The school argued against the council's actions on two main fronts. First, that the changes that were made to the special educational provisions section of the EHCP were beyond what could be reasonably made. Secondly, due to the lack of detail in Section F, it was impossible for the council to comply with its legal duty to consult with the school on its suitability for the child.

The decision

The High Court held that the local authority acted unreasonably when it "eviscerated" the ECHP and named the school, despite it being unsuitable for the child. Consequentially, the Court ordered the ECHP to be quashed, and the previous version re-instated, whilst the local council arranged for the child's attendance at an appropriate school.

Comment

This is a rare example of a judicial review challenge of a local authority's decisions relating to special educational needs provision.

Chris Billington, Head of Education at Wrigleys comments: "This judgment makes interesting reading, particularly in clarifying the qualified right of a child with special educational needs to attend a mainstream school. It is important to note that, where there is no mainstream school in the area which is suitable for the child, the local authority has an obligation to make a mainstream school suitable at the cost of the local authority."

This article was co-written by Alacoque Marvin and Callum Pooler.