Naming schools in section I of an EHCP (2): naming two schools?

We have seen a number of Education, Health and Care Plans (‘EHCPs’) that both name a school and specify a type of school that is a different type of school from the one named (e.g. it names “A.M. Academy and a special school for children with moderate learning difficulties (‘MLD’) when identified”).  We consider that this would usually be an irrational step for a local authority (‘LA’) to take (irrationality being one of the bases upon which a public authority’s decisions could be challenged as being unlawful).

If a parent requests a special school be named, but not a particular special school, the LA must secure that the plan [either]:

a) names a school or other institution which the LA thinks would be appropriate for the child; or

b) specifies the type of school which the LA thinks would be appropriate for the child.

If a particular special school (I will refer to it as ‘A.S. School’) is named on a plan, it is because the LA considers it is appropriate for the child to be admitted to at the time when the plan is finalised; from that date, s/he must be admitted to A.S. School. Conversely, if a mainstream school (I will refer to it as ‘A.M. Academy’) is named in section I, then the LA must consider that to be the appropriate school for her/him to attend from that date.

If a child is attending A.M. Academy, but the plan is reviewed and A.S. School or ‘a special school’ is named, so long as the child remains at A.M. Academy, the LA may well be in breach of its legal obligation to secure the special education provision contained in section F. Moreover, naming A.S. School, or indeed ‘a special school’ on the plan would be incompatible with also naming A.M. Academy or ‘a mainstream academy’. That is, if a mainstream school is considered to be appropriate for the child to attend now, a special school cannot at the same time also be appropriate to name now. If it turns out that a special school place becomes available in the future then, at that point, the LA will need to consider whether it is then appropriate for the child.

This is supported in recent case law, which confirmed that “it is wrong in law to name a school in Section I that, at the time the EHCP is in force, is neither “appropriate” [for a child] nor the school “to be attended” by him [or her]”.  That is not to say that two schools (or types of school) can never be named in section I if in fact a child is attending both schools or it is anticipated that s/he will have an extended transition to the second school, to commence when the EHCP is finalised.

Please contact your usual Stone King contact or Elizabeth Fortin, if you have any queries.