Parent Wins An Appeal To Send Their Child To A Special Needs School


The Law Of... fighting for your child's education

Every child has the right to be educated in a way that caters to their individual needs. But what happens when a child with special needs is denied access to an education that will help shape their future?

Parent Wins An Appeal To Send Their Child To A Special Needs School

Following her crucial role in a successful case regarding the provisions made for children with special educational needs, Rachael Smurthwaite, Solicitor in Education and Community Care, explores why it's so important for parents to fight for their child's education.

Rachael was recently contacted by a parent whose child, S, is 9 years old and has been diagnosed with Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder, Autistic Spectrum Disorder, and Global Developmental Delay.

In particular, S struggles with their behaviour, social communication and interaction, anxiety, and sensory processing, as well as having difficulties with attention and concentration.

Accommodating Each Child's Needs – EHC Plans

Children and young people who have significant and complex special needs, like S, are given special Education, Health and Care Plans (EHCP), which set out information about the extra help and support they will receive from their local authority.

The EHCP stated that S was to attend a maintained, mainstream school; however, S' parent and the school believed that S needed a specialist placement as the mainstream placement wasn’t able to meet S’ needs.

In S' best interests, their parent lodged an appeal by themselves against Sections B (needs) and I (placement). It soon became clear that they needed more specific legal advice and help with the case, and contacted us soon after the appeal was lodged.

Treating Each Child Fairly

To support S' case and evaluate whether the plan met the child's needs, Rachael commissioned independent expert reports from an Educational Psychologist, Speech and Language Therapist, and an Occupational Therapist.

The independent expert reports showed that S’ EHCP was wholly inadequate. S’ needs were far greater than those set out in the EHCP, and the provision to meet those needs was wholly unsuitable as it was unspecified and unquantified.

Rachael then had to seek the permission of the tribunal to amend the appeal to include Section F (provision), in order to secure appropriate provision for S to access their education.

Weighing Up The Options

As part of the appeal, S' parent sought a place at an independent special school, catering for children with a range of social, emotional, behavioural, and communication difficulties. This particular school uses a therapeutic curriculum, incorporating the national curriculum, to support its pupils, which S’ parent felt was the most suitable placement for S’ needs.

Whilst the local authority agreed that S required a specialist placement, they did not agree with the parent's preference and instead considered 2 other independent special schools. One was a boys' school catering for pupils with a range of behavioural, emotional, and social difficulties and the other was a school for children with learning difficulties including Asperger’s and Autism.

After visiting both schools, S' parent concluded that neither of the schools were suitable for S’ needs. One of the major problems was that both schools were over 15 miles away from S' home, and S wasn't able to travel for long periods of time. Their preferred school, on the other hand, met all of S' requirements and was much closer to S' home.

Finding The Best Outcome

In its response to the appeal, the local authority’s reason for not agreeing with the parental preference came down to an inefficient use of resources/unreasonable public expenditure – i.e. cost.

The difference in cost between the 2 schools the local authority selected and the parent's choice of school was significant. However, there were additional transport costs to be taken into account for the 2 schools preferred by the local authority, of a similar sum. This therefore reduced the overall cost of the placement to a marginal difference for 1 of the schools and in fact increased the cost of the other school.

After Rachael filed the expert evidence, which gave overwhelming support for a placement at the parent's choice of school, along with information about costs, the local authority conceded the appeal against Section I, and agreed to name the preferred school in S’ EHCP. The local authority also wanted S' parent to withdraw the appeal in its entirety; however, Sections B and F still needed significant amendments.

A working document of S’ EHCP was then sent to the local authority with proposed amendments, which included direct speech and language therapy and direct occupational therapy. The local authority agreed with all of the amendments proposed, as the provision could be made by the school due to employing its own speech and language therapists and occupational therapists.

A Positive Move Forward

S began attending the school prior to the end of the 2016 summer term and is already thriving. Overjoyed with the outcome, S' parent praised Rachael on her help and guidance throughout the case:

"I just wanted to say thank you so much for all what you did. You have been the only person who actually ever fought in our corner, and you have changed my son's life!"

"He goes to school every morning with a smile, and I will be forever grateful. You're amazing!"

Rachael comments:

"Parents who have children with special needs shouldn't have to fight tooth and nail for their child to have access to education that is most suitable for their needs – especially when they are given EHCPs that are meant to meet those needs."

"S' local authority had a responsibility to put together an EHCP that addressed the child's needs; however, they failed to view the child's needs as a whole when they selected potential schools for S to attend."

"This case appeared to hinge on costs and, sadly, the local authority seemed to be more conscious about keeping their spending down rather than what was most suitable for S. Parents who are experiencing similar treatment shouldn't have to fight alone, and with our expert legal services they won't ever have to bear the burden on their own."

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