Making the EHC Plan fit the school

07/02/2019 Published by Lexis Nexis

Local Government analysis: The court held that the local authority had acted
irrationally by removing provision from Section F of a child’s EHC Plan without a proper
evidential basis. Further it held that the local authority had failed to consult properly
with the academy trust and to take notice to its objections to being named in Section I
of the Plan. Finally it held that s 33 of the Children and Families Act 2014 did not give a
parent an absolute right to a particular mainstream school for their child. Written by
Hannah Lynch, barrister at St Pauls Chambers.

R (on the application of an Academy Trust) v Medway Council [2019] EWHC 156 (Admin)

What are the practical implications of this case?

• the High Court emphasised that, when a child moves from the area of Local Authority A to
  Local Authority B and his/her education, health and care plan (EHC Plan) is transferred to
  the Local Authority B, the latter may not remove provision from Section F of the EHC Plan
  without a proper evidential basis
• where parents of the child express a preference for a mainstream school in Local Authority
  B, the Local Authority must give proper consideration to section 39(4) of the Children and
  Families Act 2014 (CFA 2014) when the school says it is unsuitable for the child
• local authorities will have to be much more careful before deciding to ‘direct’ a school to
  accept a child with an EHC Plan or naming an academy in Section I, which has said it
  cannot meet a child’s needs

What was the background?

Child X moved, with his family, from the Greenwich local authority area, to the Medway local authority area. As a result, Medway assumed responsibility for his EHC Plan. X could not stay at the school currently named in his EHC Plan for any length of time, due to the distance from his new home, so his parents expressed a preference for the claimant academy to be named in Section I.
The claimant academy said that it was unsuitable for X, within the meaning of CFA 2014, s 39(4)*,
because it could not deliver substantial parts of the provision in the Greenwich EHC Plan. Medway
Council offered a specialist placement to X’s parents, who turned that offer down.
The Local Authority then resumed discussions with the claimant academy, which said that it would need top-up funding of £35,285.89 to deliver the provision in Section F of the Greenwich plan. Medway Council re-issued X’s EHC Plan, naming the academy in Section I, but having removed significant parts of the provision that were in Section F of the EHC Plan when it was maintained by Greenwich. This obliged the claimant school to admit X, pursuant to CFA 2014, s 43*. Medway Council offered the claimant academy top-up funding of £15,151, considerably less than the academy had said it would need. The academy referred the matter to the Secretary of State, who declined to act. The academy therefore lodged a judicial review against the Medway decision to remove large sections of Section Fand name it in Section I.One of the arguments advanced by Medway was that, as the mainstream school of parental preference, it would have been obliged to name the academy regardless of its contention that it wasunsuitable, because of the (qualified) obligation to provide a mainstream school place imposed by CFA 2014, s 33*.

*Link requires access to Lexis Nexis.

What did the court decide?
Judge Philip Mott QC found that:

• The fact that the Education and Skills Funding Agency (ESFA) (on behalf of the Secretary of
  State) had declined to act in support of the claimant academy (by issuing a ‘direction’ to
  Medway under s 496 Education Act 1996) did not provide a bar to the claimant’s judicial
  review challenge
• Medway had acted irrationally by removing significant parts of Section F from X’s EHC Plan
  without proper evidence to demonstrate that the removed provision was no longer required [paras 84-85]
• Medway had failed to consult properly and fairly with the academy and take its concerns
  about suitability into account [para 87]
• the interplay between CFA 2014, ss 33 and 39 was such that a parent’s right to mainstream
  schooling for their child with an EHC Plan, was stronger than the right to request a particular school. A parent’s right to a particular mainstream school could be displaced where that school was unsuitable, within the meaning of CFA 2014, s 39(4) [para 95]. A parent’s right to mainstream schooling is very powerful and requires a local authority to take all reasonable steps to remove any ‘incompatibility with the efficient education of others,’ but it is not an absolute right [para 102]
• in the present case, the claimant academy could have been made suitable with a high level
  of top-up funding, but there was another local mainstream school that could meet X’s needs, with a lower level of top-up funding, due to pre-existing expertise and resources within that school

Case details

• Court: High Court, Queen’s Bench Division, Administrative Court (London)
• Judge: Philip Mott QC
• Date of judgment: 04 February 2019