Legal Question – Inclusion Now 50

Question:

“As a parent of a 10 year old disabled child I am concerned about local authority proposals to remove the SEN unit from one mainstream school and reduce the number of SEN pupils in other mainstream schools. There are proposals to increase special school placements by establishing two free special secondary schools and increasing special secondary maintained and academy school placements. I am worried what this will mean for my disabled child who will be making the transition to secondary school. What can I do to legally challenge this direction of policy where disabled pupils will find it harder to access mainstream education?”

Answer:

What does the law say?

There are two relevant legal duties on the local authority that you should be aware of. The first is known as the mainstream school presumption. What this means is that even if a child has a Statement of SEN or EHCP, they must be educated in a mainstream school unless an exemption applies to this. The exemptions are that it is incompatible with the wishes of the parent, or the provision of education of other children.

The second duty is that local authorities have to make sure there are ‘sufficient schools’ in the area of the local authority. In order to comply with this duty, they have to make sure that school places available offer all pupils ‘the opportunity of appropriate education’. This means that the places need to vary for different pupils’ ages, abilities and aptitudes.

How do these duties help in this situation?

These duties mean that if a parent wants their child to be educated in a mainstream school, the local authority has to facilitate this unless the local authority can demonstrate that to do so would be incompatible with the education of other children. This, therefore, means the local authority should ensure that there are enough mainstream school places available for children with Statements of SEN or EHCPs.

Local authorities can reduce the number of school places available if for example, they have a surplus of places which are never filled. However, if they are doing this because they are increasing the number of special school places available, and expecting SEN pupils to attend them instead, they could find that they are in breach of their duties to ensure sufficient school places are available in the area as well as complying with the mainstream presumption.

What can I do if the LA is trying to make my child move from mainstream to special school?

If your child has a Statement of SEN or an EHCP, the local authority should not try and change their school placement without formally amending this. Once they have taken the steps to formally amend this, you will have a right of appeal to the First-tier Tribunal (Special Educational Needs and Disability). If you are not happy with the placement named we recommend you use this right of appeal. If this is an issue which is impacting on a number of parents or has the potential to, you might also want to consider seeking legal action to see if anything can be done to prevent these changes to how the local authority ensures it has sufficient school places for children within its area, and particularly those with SEN.

Samantha Hale

Samantha is an Associate Solicitor with Simpson Millar and specialises in education, community care and public law.