SEN caselaw insight: R. (Swalcliffe Park School) v Wokingham Borough Council and the First Tier Tribunal (SEND) [2023]

What does the Local Authority (LA) do with your (negative) responses to consultation, when it decides to name your school in section I anyway?

Why is this case important?

This case was a successful judicial review challenge by the school against the LA when it decided to name the school in section I despite the school’s detailed response to the consultation, which set out why the child’s admission would be incompatible with the provision of efficient education for others.  The court agreed that the LA had failed to “conscientiously consider” the school’s response when consulted about the placement. 

Extended discussions (including a trial placement and assessment) had taken place between the school and LA regarding the admission of the child, who had ASD and a developmental language disorder. The school had provided a detailed assessment report outlining the child’s behaviour and impact on existing students during the trial placement, and followed up with subsequent correspondence explaining why the child’s admission would be incompatible with the provision of efficient education for others. However, the LA failed to engage in meaningful dialogue with the school about its concerns and instead suggested that ‘reasonable adjustments could be made without explaining what these were. 

Key learning point: 

LAs must ‘conscientiously consider’ school responses to EHC plan consultations, in line with the criteria set out in case law and paragraph 9.80 of the SEND Code of Practice^[1]. It is not enough for the LA to say that it has carefully considered the response; meaningful dialogue should be entered into and supporting evidence requested where necessary.

Schools can request evidence from LAs as to any decision made to name them in section I of a child’s EHC plan, particularly where the LA’s decision appears not to have taken on board the school’s strong refutation of that proposal. 

^[1] The local authority must consult the governing body, principal or proprietor of the school or college concerned and consider their comments very carefully before deciding whether to name it in the child or young person’s EHC plan, sending the school or college a copy of the draft plan.