High Court quashes Wokingham Borough Council’s decision to name a school

Brief background to R (Swalcliffe Park School) v Wokingham Borough Council:

Swalcliffe Park School, a specialist residential and day school for boys, was named by Wokingham Borough Council in the EHC Plan of a teenager who has Autism Spectrum Disorder (ASD) and development language disorder. As a result, the school was under a legal obligation to admit the boy. However, the school made an application for judicial review in the High Court challenging:

1. Wokingham Borough Council’s decision to name it in the EHC Plan in a letter dated 16 December 2021;

2. A consent order on 21 January 2022 by SENDIST permitting an amended EHC Plan for the boy in which the school was named; and

3. SENDIST’s decision on 28 February 2022 to refuse the school’s application to set aside the consent order.

The Local Authority’s decision to name the school under Section 39 of the Children and Families Act (CFA) 2014 was challenged on the following bases:

1. Requisite information was not provided for the purposes of the consultation;

2. The decision to name the school was taken without careful consideration of the school’s response to the consultation;

3. The decision was irrational as it lacked an evidential basis; and

4. The decision failed to consider the school’s safeguarding duties

The High Court ultimately granted the judicial review. Wokingham Borough Council’s decision to name the school in the EHC Plan was quashed and SENDIST’s consent order providing that the school could be named was set aside.

The school succeeded in their appeal on only the second of the four grounds above. The Local Authority was criticised for its failure to follow up with the school following its consultation response before naming it in the EHCP. The parties were ordered to complete the consultation process urgently and the tribunal proceedings were revived.

The judge noted that SENDIST was not wrong to grant the order. However, the Local Authority’s decision to seek the order, in the circumstances and at the point when it did, was itself wrong: the order was necessary for the implementation of that decision.

Practical Implications

The decision emphasises the importance of Local Authorities fully considering consultation responses from schools, especially where the consequences are the imposition of a legal obligation on then them to admit a child or young person. This does not mean local authorities cannot disagree with such a response however.This case does not change the fact that where section 39(4) applies, the decision to name a school, even if it is ‘full’ or does not agree to be named for some other reason, is for the local authority not the school.