What are an academy trust's options when challenging a local authority SEND decision?
We look at what trust leaders can do to challenge local authority SEND decisions and provide legal and practical tips to help achieve a resolution.
Department for Education data on special educational needs and disabilities (SEND) in England, published on 8 June 2023, highlights the immense strain on SEND provision. 2022 saw a 23% increase in initial requests for an education, health and care plan (EHCP), with a 59.9% decrease in the number of EHCPs issued within 20 weeks. Meanwhile, the number of new plans increased by 7% with total EHCPs increasing by 9% to 517,026. The significant increase in SEND need is placing huge pressure on the resources of trusts, schools and local authorities, risking decisions and placements that aren’t in the best interests of the child.
In this article, we provide the legal framework and options to assist trust leaders in navigating the SEND process and challenging the local authority where appropriate. We also include practical tips from Natalie Packer, an independent SEND consultant and Forum Strategy Associate on MAT-wide SEND reviews, and a case study from Stef Edwards (Trust Leader) from Learn Academies Trust (Learn-AT) with their experience of how difficulties can be resolved.
A key part of any strategy to challenge a local authority (LA) decision is a clear understanding of the legal duties of the LA and the school. This will help trust leaders target their focus on the LA while ensuring they also comply with their own duties.
Under the Children and Families Act 2014 (CFA), an LA must publish its local offer and is responsible for ensuring this is reflected in an EHCP. Where an EHCP is inconsistent with the local offer, trust leaders should therefore challenge the EHCP on this basis. This can be done where the EHCP is in draft or otherwise as part of the annual review. This does mean, though, that trust leaders need to be familiar with the local offer.
Where an LA names your school in the draft EHCP, they must consult you. Where the parent has asked for your school to be named, the LA must name your school unless
- the school is unsuitable for the age, ability, aptitude or special educational needs of the child or young person or
- the attendance of the child or young person would be incompatible with the provision of efficient education for others, or the efficient use of resources.
This is your opportunity to challenge the proposal, which Natalie looks at in more detail in the practical considerations below.
According to the CFA, an LA must co-operate with a school and others when discharging its functions and must secure the SEND provision in the EHCP. The SEND code of practice: 0 to 25 years further requires an LA to consider the evidence and how best to achieve the outcomes and precludes the use of a ‘blanket’ policy for particular children or types of need. Trust leaders should therefore remind an LA of its duties where practices or procedures depart from what is required or permitted.
A school must also co-operate with the LA in the exercise of its functions and use its best endeavours to secure that the required SEND provision is made.
Where differences arise, trust leaders should check the LA’s arrangements for avoiding or resolving disagreements. The CFA requires an LA to publish disagreement resolution services and complaints procedure in its local offer, which may help engineer a solution. Otherwise, a complaint to the DfE may be appropriate where the LA breaches the high needs grant conditions and regulations, which may trigger an intervention. It may also be worth considering a complaint to the Local Government and Social Care Ombudsman who has power to investigate LA maladministration. Although they don’t have the power to take enforcement action, it may help to exert pressure on the LA where a complaint is upheld. The key is to devise a strategy to escalate and resolve the dispute.
Practical considerations (Natalie Packer)
Where an LA consults you on naming your school in an EHCP, your response is your only opportunity to challenge the placement, without escalating the matter to the DfE or engaging in tribunal or court proceedings. You will have 15 calendar days to respond in writing. A simple response intended as an acknowledgement could be taken as a response, so take care with the wording used and if possible make clear any intention to challenge the placement. You should look carefully at the child’s needs and consider why you are unable to meet them by reference to the criteria in the bullet points above. You will need to gather as much evidence as possible to support your case.
Below are some suggestions from Natalie Packer for evidence you can include.
Your school is unsuitable for the pupil’s age, ability, aptitude or special educational needs
Highlight any detriment to the child’s ability or needs that may occur if they attend your school, referring to their needs as outlined in section B of the EHCP. For example
The attendance of the child would be incompatible with the provision of efficient education for other pupils
Describe the impact on the child’s proposed peer group. Refer specifically to the pupil’s needs in section B and the education provision in section F. For example
The attendance of the child would be incompatible with the efficient use of resources
Consider the impact on the school’s budget and physical resources, including staff. Again, refer specifically to the education provision in section F. For example
It may also be appropriate to arrange for the child to visit your school so you can observe and carry out assessments. If the pupil has had unsuccessful placements in another school, provide information on why this was unsuccessful. Also, confirm if the parents have expressed a preference for another school and state their reasons. You should gather and include evidence from previous schools, the parents, the pupil, staff and/or external professionals if this will help your case.
When putting your response together, keep it to the point and organise your paragraphs under headings relating to all of the three points noted above. Refer to any evidence that supports your case and relate the needs and provision of the child to the school context. Also, gather support from your headteacher and governors before sending the response.
If a pupil already at your school receives an EHCP and you believe you cannot meet their needs, follow the same suggestions and principles as above.
While schools are expected to contribute £6,000 from their notional SEND budget towards the costs of any additional support, further funding may be available from the LA high needs budget. If required, you should discuss this with your LA as they are responsible for placing a child and are required to allocate funds appropriately.
The Learn-AT SEND Business Project (Stef Edwards)
The Learn-AT SEND Business Project emerged from frustration about a rigid and inflexible SEND school funding system which entrenches perverse incentives for mainstream schools to resist admitting learners with complex needs. A constellation of issues led to the decision to try a different approach.
The formula used to calculate the core funding allocated to mainstream schools for learners with SEND means that schools with low deprivation but high numbers of learners with complex SEND needs are significantly financially disadvantaged. Low deprivation also impacts negatively on pupil premium funding. Low core funding from Learn-AT’s location in the county second lowest in national school funding further intensifies the crisis. The method for calculating the cost of SEND provision is also out-dated and predicated on support staff costs set around 2014. If SEND learner numbers rise, notional SEND funding tips into deficit, with money intended for mainstream learners subsidising SEND provision. The quality and efficiency of education for everyone is therefore compromised. Schools in this position are reluctant to accept more complex and costly SEND placements, which has a disproportionate impact on schools that aren’t full. Already grappling with the financial challenge of falling rolls, this can exacerbate a catastrophic spiral of financial and educational decline for these schools.
Several Learn-AT schools were in this intractable situation. The trust therefore proposed the Learn-AT SEND Business Project to headteachers, local governors and trustees.
A budget for specialist legal advice and one day a week was allocated to a Trust Business Manager tasked with gathering data, drawing conclusions and formulating a plan. She interviewed SEND leaders, scrutinised paperwork, delved into Provision Map and analysed financial information. After four months, she presented her findings and proposal to the Trust Board School Improvement Committee, the Headteachers’ Strategy Group and the Local Governing Body Chairs’ Forum. The findings were sobering:
The Trust Business Manager proposed the following workstreams to address the situation.
Learn-AT is approaching the end of the first year of the project and intends to continue. It’s too early to say whether they have transformed funding and provision for learners. However, there is a growing confidence that leaders feel better equipped, trained and supported to succeed in advocating on behalf of learners and families. Learn-AT has a better picture at trust level about where to target resources and where help is needed. Communications with external agencies are courteous, confident and grounded in a clear understanding of the legal position. This is eliciting a more productive relationship with the LA. Professionalising the ‘business’ aspects of SEND provision has helped to shine a strategic, systemic spotlight on practices which it is believed will continue to improve and reap quality dividends for all learners in the years to come.
A significant increase in SEND need is placing huge pressure on the resources of trusts, schools and local authorities, risking decisions and placements that aren’t in the best interests of the child. However, there are things that trust leaders can be doing to help manage the situation. Specifically
- a clear understanding of the legal framework and available options will help inform interactions with the LA and how best to resolve the impasse,
- drawing on the practical considerations of other experienced practitioners will help get the most out of the process for the benefit of everyone concerned and
- learning from the hard-earned experience of other trusts, and sharing yours in return, will help build a shared approach to SEND provision.
How Wrigleys can help
The education team at Wrigleys has a proven experience in advising on SEND provision in mainstream, special and hospital schools. We also advise on admissions, safeguarding, exclusions and behaviour as well as a whole range of other operational issues.
We are therefore ideally-placed to help schools and trusts successfully navigate the increasingly complex education landscape.
The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.