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How Is School Suitability Assessed?

View profile for Ed Duff
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We have recently successfully opposed an Application for Permission to Appeal brought by a Local Authority following a decision of the Special Educational Needs and Disability Tribunal.

The Local Authority did not agree with the decision of the Special Educational Needs and Disability Tribunal (SENDIST) that our client's son required a highly specialist residential ASD placement.

We helped with the original appeal to SENDIST because parents were concerned that the Education Health and Care Plan did not properly set out what the young man's Special Educational Needs were. In addition, the Special Educational Provision detailed in Section F of the Education Health and Care Plan was very vague and, in particular, the parents were concerned that the school placement named in Section I of the Education Health and Care Plan was not a suitable school.

During the build up to the Final Hearing, which had been adjourned already, the Local Authority agreed much of the amendments that we had sought regarding Section B (Special Educational Needs) and Section F (Special Educational Provision). As such, the substantive issue for the Special Educational Needs and Disability Tribunal was the school that should be named in Section I of the Education Health and Care Plan.

The young man had been attending a mainstream primary school but this had been accepted as being unsuitable for his needs. Our clients wanted the young man to attend at an independent special school for pupils with high functioning autism and communication difficulties. Because of the distance from the family home this had to be a residential setting.

Initially, the Local Authority refused to even accept that the young man required a special school setting. However, in January 2017 it did accept that he required a special school.

Ultimately, the matter went to Appeal Hearing on 09 March 2017. Two days before that Hearing, the Local Authority proposed a special school as being the option it preferred for the young man.

The Special Educational Needs and Disability Tribunal heard substantive evidence about the two respective placements. Ultimately, the Special Educational Needs and Disability Tribunal concluded that the school the Local Authority was proposing was unsuitable. This was mainly because of the peer group that the school could offer. The school catered for a very wide range of functional skills. These were separated across "tiers". The first tier accommodated the young people with the most significant learning difficulties and challenging behaviour. The second tier less so and the third with the most high functioning pupils. Importantly, however, challenging behaviour was present at all three tiers.

The Special Educational Needs and Disability Tribunal communicated its decision that the parents' Appeal should be upheld because the pier group, or cohort, of the school proposed by the Local Authority was not suitable.

The Local Authority sought to Appeal this decision. It made an application for permission to Appeal to the Special Educational Needs and Disability Tribunal which was refused. That application was then renewed to the Upper Tribunal.

The Local Authority essentially argued a point that the Special Educational Needs and Disability Tribunal had made an error in law on the basis that it had failed to sufficiently deal with the evidence before it on the point of suitability. In particular as well, the Local Authority argued that because there was a significant cost difference between the two schools, the Special Educational Needs and Disability Tribunal was required to provide more substantial reasoning than if the costs difference was marginal. Further, the Local Authority argued that as its preferred placement was a specialist independent ASD school, the heavy presumption should have been in favour of suitability. Any finding of unsuitability was shocking and concerning.

Finally, the Local Authority submitted that because the Special Educational Needs and Disability Tribunal had not made any finding that the placement it preferred could not discharge the provision detailed in Section F, the finding of unsuitability was unfounded.

The Upper Tribunal, following an oral Hearing, refused permission to Appeal. That decision is here.

The most significant learning point from this Appeal is that a school's suitability for a pupil is assessed by more than simply referring to the Special Educational Provision detailed in Section F of the EHCP and, further, more than the content of Section B, which is the Special Educational Needs Description.

As we raised with the Upper Tribunal, the Assessment for suitability can be on the basis of a number of other points. This has, in other cases, included reference to the ability to deal with anxiety, home school relationship, physical features of the school, new school's ability to manage school refusal, school's ability to manage stress and all the acoustics of a school.

Whilst this decision is one that very much goes to the facts of the case, it does also provide a helpful reiteration of the general principle that a decision from the Special Education Needs and Disability Tribunal does not need to be an elaborate, complex or lengthy affair. Rather, as long as the parties reading the decision can understand the outcome and the basis for it then it is likely that the decision does not represent an error in law. Arguing that the Special Educational Needs and Disability Tribunal made an error in law on the basis of failing to deal with evidence, the Appellant would have to be establish that there is a very significant element of evidence that the Tribunal has simply not dealt with. It is not enough to simply disagree with how the Special Educational Needs and Disability Tribunal attach weight to particular aspects of evidence.

If you are experiencing difficulties in relation to special educational needs or otherwise in securing additional support for your child or young person from your Local Authority, then please do not hesitate to contact our Specialist Educational Solicitors on 02920 291704.

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