The Right To Mainstream In EHCPs
The Law Of…Including A Mainstream Fall-back School
Simpson Millar recently supported a family in a special needs tribunal case concerning an Education, Health and Care Plan (EHCP) naming a local, specialist school. The family appealed for an independent special school for their child, but requested mainstream with preference for a particular school.
While the plan was being drafted the family and the local authority had agreed that a local mainstream school with an enhanced resource unit might be named. Our client then found the specialist placement they appealed for and realised it was the only place that could really meet their son’s particularly complex needs. They felt strongly though that if their appeal failed, the previously identified mainstream enhanced resource school was the most appropriate local school. This became their ‘mainstream fall-back’ position.
Emily Gent, Education and Community Care Associate, explains the case.
The authority decided that because the parents proposed a special school, it would name one and refused to consider mainstream further. When the matter went to tribunal hearing it was adjourned as the Judge considered a mainstream witness was required. The Judge recognised that unless the authority argued that the presumption for mainstream did not apply, it was inevitable that mainstream would be named.
The law requires that mainstream provision is made if it is compatible with the wishes of parents and unless it is incompatible with the efficient education of other children. It is assumed that mainstream can be made suitable for every child.
In this case, parents wanted a particular mainstream school with the enhanced resource. Although there is a right to mainstream there is no right to a particular mainstream school. We argued that, separate to the right to mainstream as a type of schooling, there is provision in law that a child should be educated in accordance with parental wishes, and so the enhanced resource school should be named on this basis.
Although there was evidence that a place had been offered in the mainstream school, the Judge at the first hearing wanted more information from the authority and for a witness from the school to attend. The authority then named the mainstream school, although it did so reluctantly, and there were questions on whether it would do so up to the day of the second hearing. The parents were able to appeal for an independent specialist school placement knowing that the mainstream fall-back was agreed and named in the plan.
The appeal resolved at second hearing in favour of the independent specialist placement.
The Upper Tier Tribunal
The fall-back position resulted in many queries and the matter was considered by 3 different tribunal judges and a Registrar at various stages. Each took a slightly different approach to how the appeal should be decided and we made lengthy submissions on the law that would have been beyond most parents.
There is considerable scope for special needs tribunal decisions on mainstream fall-back cases to be appealed to the upper tier tribunal (UTT). Any such application must be made within 28 days of when the decision is sent out. Where advice is requested we seek instruction at the earliest opportunity.
Appeals to the UTT can be funded under legal aid where parents are eligible and the prospects of success are fair.
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