English
August 2023
East Sussex County Council has been ordered to pay in excess of £7,000 to the family of a young autistic boy after they were forced to take legal action to secure funding for a place in a specialist school that could meet his special educational needs.
The 12-year-old boy from East Sussex, Jake, has Autism and a Language Disorder associated with Chromosome Deletion which means his education and school setting needs to be specific to his needs. In 2019, he was granted an Education, Health and Care Plan (EHCP), which is a legal document that sets out a child's special needs in these areas and the support they require.
However, while the EHCP did refer to Jake’s diagnosis, his family raised concerns that it did not correctly identify or recognise his complex SEN or make appropriate and necessary provision to enable his progress.
It also failed to provide a specialist school placement with the necessary integrated therapy, appropriate peer group, nurturing environment and education that he needed.
In April 2022, Jake’s parents sought to improve the accuracy of the EHCP in a bid to secure a suitable learning environment but were forced to appeal to the SEND Tribunal, following a failure of the Council to engage.
The primary school that Jake was attending were also supportive of the appeal and agreed that he needed a specialist secondary school. Even the mainstream secondary school originally allocated to Jake eventually admitted that they could not meet his needs, but the Local Authority continued not to engage.
The Local Authority’s position would have inevitably left Jake without a school to attend, and the family were left with no choice but to transfer him to Northease Manor School – a specialist co-educational independent school in Lewes for primarily autistic students and also students with dyslexia.
The family were originally assisted by a specialist SEND Consultant, Jeannette Bidder and went on to appoint education lawyers at Simpson Millar to take legal action over the Local Authority’s failure to update the EHCP, as well as its decision not to name, and fund, a suitable school placement.
A tribunal hearing took place in November 2022 which was adjourned due to the Council presenting unspecified safeguarding concerns as to their main reason for not agreeing to fund the child’s place at the school.
They said that their concerns were based on a safeguarding report, but they failed to disclose the report in question for a period of 4.5 months. This was despite requests from the parents, and indeed Orders from the Tribunal, that they do so.
Furthermore, the Council continued to consult with Northease for other children during this period. They also had no other school to suggest as an alternative for Jake.
A further hearing took place in February 2023 in which a specialist tribunal panel reviewed Jake’s EHCP, and considered the evidence presented with regards to his needs, before ordering East Sussex County Council to update the document including the naming of Northease Manor School.
This meant that the Local Authority was legally obliged to fund his school place moving forward. However, the costs incurred by Jake’s family up until this point – both in terms of legal costs and school fees – had been significant.
In recognition of this, the family’s solicitor, Sarah Woosey, made a costs application in order to recover the costs incurred for the period of time in which the Local Authority unreasonably defended the case.
The application was successful, and the Local Authority was ordered to pay over £7000 to Jake’s parents, which includes a proportion of legal fees and a contribution to the school fees already incurred by the family.
Commenting on the decision Sarah Woosey, an education law expert at Simpson Millar who represented Jake, said it had come as a ‘huge relief’ to the family, which had been forced to take out a second mortgage on their house to self-fund his school placement in addition to the professional fees involved in taking the case.
She added that the case was an exception to the rule where costs are concerned, and that many other families were being financially impacted by a system that is ‘failing children with special educational needs’.
According to Sarah, a decision ordering the Local Authority to pay costs in these types of cases is unusual but the Tribunal panel found that the Council acted unreasonably in defending the appeal after 11th January, when a report was produced to show that the safeguarding concerns previously raised had been dealt with by the school.
The Judge stated that they have concluded that ‘the respondent’s conduct justifies the making of an order for costs’, saying: “I have considered the effect on the applicant and on Jake. This led to [his mother] having to incur unnecessary costs in preparing for an appeal hearing on 20 February 2023 on which the respondent’s position was unsustainable and with the clear knowledge that the Tribunal panel would proceed to name Northease Manor School.”
Sarah Woosey from Simpson Millar added: “Jake’s family were delighted with the outcome of the case, and to have finally secured a funded place in a school which meets his needs and will enable his progress.
“However, this process has taken almost two years, and was unreasonably drawn out. It is only right that the Local Authority should not financially benefit from the delay in resolving matters as many local authorities seem to be able to in cases of this nature.
“While Jake has attended Northease Manor since September 2022, his school place was funded by his parents. This was at great expense and risk to the family; the uncertainty about school placement caused Jake much anxiety.
"The reason they did this was because they were so concerned about their son’s welfare. There was never a reasonable alternative to Northease suggested by the Local Authority, and they felt that they had no other option.
“Sadly, their circumstances are not unique. There are many families who are in a similar boat, desperately trying to secure a suitable school place and battling a system that is failing children with special needs.
“The Tribunal is there and does resolve these issues for huge numbers of families but the number of cases they have to deal with is forever growing, and so is the length of time taken to resolve appeals.
"The only real winners in these appeals are local authorities who, although they lose the majority of appeals, effectively save money because of the time taken to resolve matters. The amount of money involved in local authorities defending the undefendable can be eye-watering."
Sarah Woosey
Head of Education, Simpson Millar
Sarah went on to say that the government needs to look at the system generally and to find ways to hold local authorities to account when they don’t act swiftly to address such obvious issues with provision.
She added: “In Jake’s case, the Tribunal panel has ordered that East Sussex County Council pay both the legal costs, and a portion of the school fees incurred over the course of the appeal. This is a very welcomed, fair and proportionate decision and we hope that it will act as a deterrent to the Local Authority to unreasonably defend appeals in the future when they have no real prospect of being successful in their defence.”
Sarah explains however that due to the lack of cost orders in SEND Tribunal cases generally there is no real incentive for the local authorities to resolve matters quickly. She added: “The SEND Tribunal is a ‘no cost jurisdiction’, so cost orders are rare. Many families are therefore pushed to their limits just to get access to the provision that is appropriate for their child, and that they are legally entitled to.
“It’s very brave of Jake’s parents to have spoken out about their ordeal and to shine a much-needed light on the issue. It is their hope that in doing so, the government recognises that the system needs to change and that measures are introduced to hold local authorities to account. They also call upon local authorities themselves to act reasonably and with compassion for the vulnerable children at the centre of these cases.
“Sadly, however, negotiations with various local authorities reached an impasse over the funding of their students, and on Friday 4th August, 2023, Northease Manor School made the difficult decision to send a letter to parents and carers making it clear that there is a real risk of imminent closure if the funding dispute with local authorities is not resolved quickly.
“In many cases, the children who attend Northease have an EHCP which specifically names the school as the only suitable educational setting with all of the necessary provision in place to meet their needs.
“Where that is the case, the Local Authority is under a legal obligation to ensure provision is delivered. They also have a duty to ensure that those children have access to suitable, full time, education.
“If Northease ceases to exist, then the local authority is legally obliged to arrange alternative provision.
“Sadly, due to increasing costs Northease is not the first specialist independent school to face closure. This is putting additional pressure on other specialist schools across the country, and many children are struggling to find a place that meets their needs.”
"This is a devastating position for families of vulnerable children to be in, and we are very aware that most families have already had to fight to get their children there in the first place by going through the SEND Tribunal appeal process."
Sarah Woosey
Head of Education, Simpson Millar
Commenting on the case, Jake’s mother, Sara, added: “We hope that our fight for justice for our son will set a precedent for other families that are in the same position as us. Ultimately, we would love for the 'no cost jurisdiction' rule to be changed in time as we feel strongly that it only supports local authorities’ delay tactics for their own financial benefit.
“If this rule were changed, it could serve to help avoid financial ruin of families and allow more families access to justice that their children deserve.”
Sara along with other parents and carers whose children attend Northease Manor are now campaigning to keep it open.
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