Date updated: Tuesday 11th June 2024

Local authorities (‘LAs’) are under a legal obligation to consult with schools when seeking to name a school in an Education, Health and Care Plan (‘EHCP’). There are key steps that they must follow in order to ensure that the consultations are lawful:

1. Consultation must occur when the proposal to name the school is at a formative stage; 

2. Sufficient information must be given to permit the school to intelligently consider and respond;

3. Adequate time must be given for the school to respond;

4. The consultation response must conscientiously be taken into account. 

This has been confirmed in important caselaw relating to the statutory consultation that LAs must undertake before naming a school in section I of a child’s EHCP.  

For schools, in practice, this means that before responding to a consultation, they should consider whether the LA has provided sufficient information to properly consider the request. This will include checking that: 

  • the LA has provided copies of the documents referred to in section K of the EHCP and any other relevant reports (e.g. annual review documentation);

  • advice has been received from all relevant professionals, such as an educational psychologist, occupational therapist, and a speech and language therapist;
  • the appendices and reports provided are recent enough to form a current picture of the child’s needs – typically those older than two years are considered outdated. 

In addition, the LA must not have already decided to name a particular placement before the consultation response is received, and it must also provide sufficient time for schools to respond to the consultation. The SEND Code of Practice says that schools should respond within 15 days. 

Once a school has responded to a consultation, the LA then needs to give due consideration to the response before deciding whether to name a placement; the process should be a dialogue that seeks to resolve any concerns a school may have about being named, rather than the LA making a unilateral decision without engaging with the school.   

If a school feels that the LA’s consultation is inadequate, then it may be unlawful. Accordingly, we often support schools in preparing formal complaints to LAs in relation to their consultations. Should this not resolve matters, then it is possible to escalate this via a formal complaint to the Secretary of State and then potentially challenge the LA via judicial review. 

Please contact your usual Stone King contact or Stephanie Armstrong, if you have any queries.