A School successfully challenged the local authority after it transferred an EHCP from a child’s previous local authority, removed provision from the EHCP and named the School in Section I. The case provides an example to schools of when and how it may challenge a local authority.

The child concerned was eight and diagnosed with an Autism Spectrum Disorder, with delayed language as well as difficulties with attention, communication and social skills.

The local authority (‘LA’) consulted the School, which replied confirming it was not suitable to provide for the needs identified in the EHCP. Specifically, it stated that it did not have a sensory room, or space to install one; and because it was a junior school starting at age 7, it did not have an appropriate curriculum or peer group for the child who was functioning at P-levels. The LA went ahead and issued the EHCP, naming the School while amending the provision in section F (without any additional expert evidence) to the extent that the judge concluded the provision fell ‘very far short of the provision required’. After the EHCP was issued, the School provided costings to support the child in excess of £40,000 but the LA offered £21,151.

The School sought the intervention of the Secretary of State (‘SoS’) to determine whether the LA had acted unreasonably; but acting on the SoS’s behalf, the Education and Skills Funding Agency declined to intervene.

The School issued judicial review proceedings and the High Court accepted that the LA had not conducted a proper consultation with the School and had acted unlawfully and irrationally when amending section F of the child’s EHCP. The High Court agreed for the reasons above; quashed the EHCP issued by the LA naming the School; and reinstated the child’s previous EHCP issued by the local authority in which the child previously resided.

For schools, the case demonstrates that it is possible to successfully challenge the local authority on an EHCP it has issued; and that after seeking to resolve the matter with the local authority, a school should first seek the intervention of the SoS and then, if appropriate, pursue a claim for judicial review.

As the case has placed the spotlight upon the actions of local authorities and the powers of the SoS, schools should look to examine consultations more vigorously and, where necessary, be more ready to seek the intervention of the SoS.

If you need advice on a consultation response, an EHCP, or a decision of the local authority e.g. in relation to the funding of a pupil, please get in touch.