Section I: Placement and its problems part 1

The vexed issue of a placement for a child or young person with special educational needs will follow on logically from the identification of what those needs are in section B, and the identification of what provision needs to be made of them in section F.

Many parents or young people may have their own ideas as to what would constitute the ideal placement. The local education authority may take the view that what is being asked for might constitute “Rolls Royce” education and disagree. The statute and the SEND Code of Practice then set out, how the issue of an appropriate placement, and whether that is in a mainstream school, or a special school or an independent school or otherwise is to be determined.

Starting with section 39 of the Children and Families Act 2014 the triggering point is always a request by the parents or young person for a particular school. Section 39 states:

(1) This section applies where, before the end of the period specified in a notice under section 38(2)(b), a request is made to a local authority to secure that a particular school or other institution is named in an EHC plan.

(2) The local authority must consult—

(a) the governing body, proprietor or principal of the school or other institution,

(b) the governing body, proprietor or principal of any other school or other institution the authority is considering having named in the plan, and

(c) if a school or other institution is within paragraph (a) or (b) and is maintained by another local authority, that authority.

(3) The local authority must secure that the EHC plan names the school or other institution specified in the request, unless subsection (4) applies.

(4) This subsection applies where—

(a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or

(b) the attendance of the child or young person at the requested school or other institution would be incompatible with—

(i) the provision of efficient education for others, or

(ii) the efficient use of resources.

(5) Where subsection (4) applies, the local authority must secure that the plan—

(a) names a school or other institution which the local authority thinks would be appropriate for the child or young person, or

(b) specifies the type of school or other institution which the local authority thinks wouldbe appropriate for the child or young person.

(6) Before securing that the plan names a school or other institution under subsection (5)(a), the local authority must (if it has not already done so) consult—

(a) the governing body, proprietor or principal of any school or other institution the authority is considering having named in the plan, and

(b) if that school or other institution is maintained by another local authority, that authority.

(7) The local authority must, at the end of the period specified in the notice under section 38(2)(b), secure that any changes it thinks necessary are made to the draft EHC plan.

(8) The local authority must send a copy of the finalised EHC plan to—

(a) the child’s parent or the young person, and

(b) the governing body, proprietor or principal of any school or other institution named in the plan.

Section 33 provides:

(1) This section applies where a local authority is securing the preparation of an EHC plan for a child or young person who is to be educated in a school or post-16 institution.

(2) In a case within section 39(5) or 40(2), the local authority must secure that the plan provides for the child or young person to be educated in a maintained nursery school, mainstream school or mainstream post-16 institution, unless that is incompatible with—

(a) the wishes of the child’s parent or the young person, or

(b) the provision of efficient education for others.

(3) A local authority may rely on the exception in subsection (2)(b) in relation to maintained nursery schools, mainstream schools or mainstream post-16 institutions in its area taken as a whole only if it shows that there are no reasonable steps that it could take to prevent the incompatibility.

(4) A local authority may rely on the exception in subsection (2)(b) in relation to a particular maintained nursery school, mainstream school or mainstream post-16 institution only if it shows that there are no reasonable steps that it or the governing body, proprietor or principal could take to prevent the incompatibility.

(5) The governing body, proprietor or principal of a maintained nursery school, mainstream school or mainstream post-16 institution may rely on the exception in subsection (2)(b) only if they show that there are no reasonable steps that they or the local authority could take to prevent the incompatibility.

(6) Subsection (2) does not prevent the child or young person from being educated in an independent school, a non-maintained special school or a special post-16 institution, if the cost is not to be met by a local authority or the Secretary of State.

(7) This section does not affect the operation of section 63 (fees payable by local authority for special educational provision at non-maintained schools and post-16 institutions).

These sections are important as they reflect the historical consequences of educating children with SEN in special or segregated schools as a default position: a sense of exclusion, when for many children provided they are given adequate support, it is possible for them to thrive in a main stream setting. Hence the statute is drafted to provide that the default position is mainstream education to prevent the blanket exclusions of the past, whilst giving a proper role to parental choice and with a weather eye to practicality: for some children, particularly those with the most severe SEN, mainstream education may not be appropriate provision.

 

 

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