Judicial Review by Academy
Anyone in the ‘education sphere’ will probably have heard murmurings about the recent case (R (An Academy Trust) v Medway Council  EWHC 156 (Admin)) which saw an academy trust launch a judicial review against Medway Council (“the Council”) after it named one of its academies (“the Academy”) in an Education, Health and Care Plan (“EHCP”).
An 8 year old boy (“the Child”) had moved to the Council from another local authority. The Child had Autism Spectrum Disorder and other needs relating to his language, communication, play and social skills and attention. He had an Education, Health and Care Plan (“EHCP”) which set out the provision required to meet those needs.
As the Child no longer lived near his old school, the Council was required to identify a new school placement for him. The Child’s parents expressed a preference for the Academy and the Council consulted with it. The Academy responded to the Council’s consultation by advising that it couldn’t deliver all of the provision identified within the EHCP and was therefore unsuitable.
At this point it is useful to be aware that the Children and Families Act 2014 places a duty on local authorities to provide for mainstream schooling unless that is “incompatible with the wishes of the parents”, or is “incompatible with the provision of efficient education for others”.
In this case, the parents had opted for the Academy so the only basis upon which the Council could refuse to name the Academy was under the second exception. Where this incompatibility arises a local authority is under a duty to spend money to overcome it - up to a reasonable level. There were some – very limited - discussions between the Council and the Academy about the cost of making a placement at the Academy suitable.
Ultimately, the Council determined that it had to name the Academy as this was what the Child’s parents wanted. In doing so, it chose to amend the Child’s EHCP by removing from it the provision that the Academy could not deliver. It then named the Academy in the EHCP, thus lawfully requiring it to admit the Child.
Having been named, the Academy stated that it would require around £35,000 to meet the Child’s needs. The Council disagreed with this estimate and instead proposed to provide around £15,000. The Academy did not accept this and sought the intervention of the Secretary of State to try and overturn its being named.
In the meantime, the Council also consulted with two other schools. It is worth noting at this point that one of these schools indicated that they could meet the Child’s needs with additional funding of £16,000 but the Council continued to name the Academy in the EHCP.
Following consideration of the Academy’s referral, the Secretary of State declined to intervene and so the Academy sought a judicial review of the decision.
The High Court found in favour of the Academy. The key points being that:
1. the Council had acted irrationally and unlawfully by removing provision from the young person’s EHCP without further assessment or advice; and
2. the Council had erred in that it fixated on the fact that the parents were seeking a mainstream placement. It had persisted with naming the school proposed by the parents when it was open to it to consider alternative mainstream settings.
What does it mean for local authorities?
In the first instance, the decision is clear that local authorities can’t simply remove provision from an EHCP in order to make a school suitable. It certainly can’t remove provision without any professional advice to suggest that it should be removed. Realistically this aspect of the judgement has long been established in law and shouldn’t be a surprise to any local authority (except, it seems, Medway).
When it comes to consulting with mainstream schools, local authorities have often found themselves stuck ‘between a rock and a hard place’. Where parents seek a mainstream school placement and the school advises that it cannot provide a suitable placement, the local authority must consider carefully whether the placement really is unsuitable, how the provision available matches with a child’s EHCP and what the cost of making the placement suitable would be.
The judgment highlights that in such situations, local authorities must ensure that they consult with all available mainstream schools, rather than only the one being requested or the one nearest to the child’s home. The judgement states that “the presumption of mainstream schooling is very powerful, but not absolute”. Accordingly, there is no requirement to simply name the school of parental preference when another school could be made ‘appropriate’ at a reasonable cost.
It seems that the key message for local authorities is to ensure that all options are considered in order to strike the balance between parental preference and school views.
What does it mean for schools?
It is not unusual for schools to respond to place consultations by indicating that they cannot meet a child’s needs. However, often these responses are lacklustre and do not properly set out why the school cannot deliver what is required.
For any school that considers it should not be named on an EHCP it must properly evidence why it is unsuitable. If it is possible to make a placement suitable then it must provide detailed costings for doing so. If the local authority then goes on to name the school in the EHCP without sufficient funding to make the provision required then there may well be grounds to challenge that.
For more information on this article, you can contact Laura Thompson, or you can give us a call on 0345 070 6000.