Landmark judicial review hands schools more power to challenge council SEND placements.

The High Court has today ruled that Medway council acted unlawfully when it changed the Education, Health and Care Plan (EHCP) of an autistic pupil so that a nearby mainstream primary school, which cannot be named for legal reasons, would have to admit him.

A school is required by law to take in high needs pupils if it is the “named” school on a child’s EHCP.Without some change in evidence such a wholescale and fundamental revision would be irrational.

Lawyers say the ruling is important for schools because it means if leaders are not happy with a council’s decision to place a pupil with them then a “judicial review is clearly now a viable option”.

Ed Duff, lawyer at HCB Solicitors, which won the case on behalf of the school, said councils must be able to “clearly evidence the process they have gone through when deciding a school is suitable”.

The school gave Medway six reasons it could not take on the eight-year-old pupil, who has severe communication and sensory difficulties, after he moved into the area before September.

The pupil’s ECHP, written up by Greenwich council, stated he needed to use a sensory room for one hour a day, but the school pointed out it had no space for one.

No teachers knew how to use a picture exchange communication system or British Sign Language and the school had also never delivered a P-level curriculum, which is for pupils working below national curriculum assessments.

The school’s leaders also said they were seriously concerned about the pupil’s welfare should he attend.

Medway ignored these reasons, as well as a request for £40,000 in additional funding a year from the school, according to Duff.

Instead, the High Court judgment ruled that Medway “‘eviscerated’ the special educational provision set out in the Greenwich plan”.

This included removing the need for a sensory room. The council also only offered the school an additional £3,000 a year.

“That’s not legal. The local authority can change an EHCP but only once it has completed a full-reassessment, taking advice from relevant professionals,” Duff told Schools Week.

The school still refused to take the pupil and, as it was in breach of its statutory duty to take on a pupil where it is the named school in a plan, asked Damian Hinds as secretary of state to intervene.

But the Education and Skills Funding Agency, enquiring on Hinds’ behalf, agreed with Medway’s argument that the SEND Code of Practice says councils must work on the “presumption of mainstream” provision for high needs pupils.

However the new judgment shows councils must make a “detailed consideration of all available mainstream schools” rather than just the one parents choose, said Duff.

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