Parent asks:

We have just named a school on my son's EHCP following the annual review. He is currently in mainstream primary (year 4) and we have requested a specific special needs school within our area and under our LA. This is something we believe is required as soon as possible. If my son is allocated a place at the school, can the LA specify when the place will be available? At the moment they have hinted that should there be a place at this school for my son, the earliest he will be able to move is September 2018. I thought under the "duty to admit" - if they agree the school is right for my son then they should allocate a place within a reasonable timeframe?

IPSEA answers:

Where a parent requests a maintained special school (that is a school funded and controlled by the local authority) for a child with an EHC Plan, the law gives the parent the right to have their preferred choice of school named in the Plan. The local authority is required under the law to consult with the parent’s choice of school and, subject to the exceptions below, to secure a place. The exceptions are:

• the school is unsuitable for the age, ability, aptitude or special educational needs of the child or young person; or
• attendance at the school would be incompatible with the provision of efficient education for others or the efficient use of resources

There are two other legal duties which are applicable in this situation. Firstly, the local authority must secure all of the special educational provision set out in Section F of the EHC Plan. Secondly, where a school is named in a Plan, the governing body (principal or proprietor) of the school or other institution must admit the child. These two duties are interlinked as in order to secure the special educational provision, the child will need to attend the school named in the Plan. The local authority cannot name a school in a Plan and then wait for a place to be available.

The only two options available to the local authority would be to ensure the child is admitted to the named school or refuse to name the school for one of the reasons listed above.  At IPSEA we know from experience that local authorities have refused to name a school in a Plan on the basis that the school is “full”.  Clearly, this is not one of the statutory exceptions listed above and a local authority relying solely upon this justification would be acting unlawfully.  In the alternative, the local authority may claim that attendance at the school would be incompatible with the provision of the efficient education of others.  The Special Educational Needs and Disability (SEND) Tribunal has considered what incompatibility means and in the leading case of NA v LB Barnet [2010] UKUT 180 (AAC), 2010  the Tribunal found that the local authority needs to show what difference the admission of one additional child would have on the efficient education of which children.  The test for incompatibility would not be met by merely showing “adverse effect”, “impact on” or “prejudicial to”.

So our advice would be to continue to press the local authority to amend the Plan and name your preferred choice of school and then if the place is delayed you will need to point to the local authority’s statutory obligations mentioned above.  If this doesn’t resolve the matter, then you could make a complaint to the local authority in accordance with its complaints procedure and then complain to the Local Government Ombudsman if the local authority fails to provide a satisfactory response.  Alternatively, you could seek legal advice on whether there are grounds for making an application to the High Court for judicial review.

If the local authority names another school in your son’s Plan, it will need to rely on one of the exceptions to dislodge your choice of school and you will have a right to appeal that decision at the SEND Tribunal.