According to national statistics published by the Department for Education, the number of pupils with an Educational, Health, and Care Plan (EHCP) increased by 50% between 2016 and 2022 (DfE, 2022).
Primary schools across the country have likely felt the impact of this rise. This article will, therefore, focus on those exceptional cases where the child has an EHCP, but the school cannot meet their needs and/or simply cannot withstand the resource implications.
In my experience, schools admit the majority of pupils, including those with challenging needs, and schools employ a range of strategies to ensure that the system eventually copes.
However, evidently each school has its limit, and these cases are the inspiration for this particular article.
What the law says
The statutory SEND Code of Practice (DfE, 2014) states that the local authority must name a school specified by parents, unless one of three exceptions apply. This principle is known as “parental preference”. In summary, and using laymen’s terms, the exceptions are:
- The school in question cannot meet the child’s needs.
- The child’s attendance would disrupt the efficient education of other pupils.
- The child’s admission would be an inefficient use of resources.
The concept of such parental preference applies to most types of schools, such as state maintained primaries, and academies. The key requirement that is the most relevant to this article is the need for a consultation period before naming the school. The code states:
“9.80: The local authority must consult the governing body, principal or proprietor of the school or college concerned and consider their comments very carefully before deciding whether to name it in the child or young person’s EHCP, sending the school or college a copy of the draft plan. If another local authority maintains the school, they too must be consulted.”
The code also emphasises that a governing body has 15 days to respond to the proposal to name its school in a plan.
This article will focus on a hypothetical yet realistic scenario where the local authority does, or is expected to, insist on naming a school for a child with an EHCP. I will work on the assumption – from experience – that this school is at its absolute limit in terms of resources. Context is very important for this particular topic.
Exhaust all options
If you decide to resist admission, begin gathering as much evidence as possible connecting to the school itself, and the applicant child. For instance, run basic and perhaps more advanced assessments of the child’s abilities. Arrange for the child to visit your school as much as possible to enable all appropriate staff to observe and carry out those assessments properly.
If you believe that such a child is that exceptional case, and you have not exhausted all remedies, your school will already be at a disadvantage in preparing a response to the local authority. This first step is crucial before proceeding any further. I would expect to see reports, assessments, and emails, which substantiate as many claims as possible.
The exceptions to parental preference
Let’s explore each of the three exceptions highlighted above where the local authority can refuse to name a school.
- The child’s needs: I would always advise addressing each of the child’s individual SEN, and as a whole. The child’s age, ability, and aptitude should also be considered. If they would suffer any detriment in these areas by attending your school, highlight this. This exception tends to be the most straight-forward to handle.
- The efficient education of others: The “efficient education of others” refers to the impact on the child’s proposed peer group. Physical restraints are important here. I would suggest raising capacity concerns wherever possible. If your net capacity assessment limits have been breached, emphasise this. Likewise, if your classroom sizes do not meet the appropriate DfE guidelines, this is certainly worth raising in your draft response to the local authority.
- Resources: This not only includes school finances and budgetary concerns but global school resources as a whole. In my own cases, this has extended to specifying how many staff members are legally disabled, poor pupil-staff ratios, lack of specialist staff, and any other detriments that the school is already struggling to cope with.
I attended one SEND tribunal* appeal hearing where a very sharp head was able to quantify and prove how much of his time was consumed by attending tribunal hearings. This was one small part of the local authority’s entire case and was seemingly improvised on-the-spot.
For many schools facing challenging circumstances, the education of other pupils and resource concerns overlap significantly. This is to be expected, so do not be too concerned about the labels.
Other potential concerns
Health and safety of the relevant child, proposed peer group, and staff may be another concern. This can stem from the child’s behavioural needs as an example, the needs of the peer group, resource implications, or all of these factors. This kind of argument can be very compelling, particularly when substantiated with risk assessment documentation.
If you are considering resisting being named by the local authority, make sure that you consider all three exceptions, and in great depth. While only one hurdle needs to be passed for your school to be ruled out, do not put all your eggs in one basket. Strategy is everything. Heads tend to overemphasise the positives of the school – this is not the time for that. Each struggle of any meaningful relevance should be specified.
Resist properly
I sometimes use certain mantras with my clients, where appropriate, as they tend to remember them. A very relevant one in these cases is: there is the law, and there is reality.
As set out above, the law favours the local authority but in reality, it cannot force a school to admit such exceptional pupils where there is an appropriate degree of resistance. Some local authority officers can be stubborn, and this combined with a complex power dynamic with schools can be harmful to schools in the long run.
However, in such rare cases, it is important to resist admission to make the difference, and to resist effectively. Gather as much evidence as you can. Seek specialist legal guidance, preferably within the consultation period, so at the very least you have that support available in the background before beginning in-depth liaison with the local authority. I have personally reviewed numerous draft responses from governing bodies to local authorities over the years and advised on what additional evidence was required.
I have seen heads successfully predict their school being named in plans by the local authority, despite it evidently bursting at the seams. I would urge you to be prepared if your school is even remotely close to this point, or close to its breaking point.
Conclusion
Local authorities can take advantage of the heads who are struggling, and this can result in certain mainstream primary schools being overwhelmed. This is evident by the papers I have reviewed over the years, and I have found it incredible that these schools were able to operate.
My experience suggests that heads feel they must resist being named for a variety of reasons but ultimately each conclusion leads to the educational welfare and emotional wellbeing of the relevant applicant child, and their proposed peers. While a school may be able to accept the huge majority of pupils, there will often be a case that is an exception.
If you are considering resisting being named, be careful, measured, and strategic. A head’s word is not enough. Work with the governors, or equivalent, and seek as much support as you can get, before sending your formal reply to the local authority.
- Nabil Dance is an educational lawyer who advises parents and schools in England and Wales. You can contact him via nabildance@mail.com. The contents of this article do not constitute legal advice and are provided for informational purposes only. Read Nabil’s previous articles for Headteacher Update via https://bit.ly/htu-dance
Further information & resources
- DfE: SEN in England (national statistics), June 2022: https://bit.ly/3DgGRDX
- DfE and DoH: SEND code of practice: 0 to 25 years, June 2014 (last updated April 2020): https://bit.ly/3nwHmPK
* SEND Tribunal signifies the first-tier tribunal (SEND) commonly and formerly nicknamed “SENDIST” in the past.