Parents often place a child at a school of their choice and at their expense either before or during the EHCP process, or after a tribunal dismisses their section I appeal. Certain issues and difficulties can arise in these situations, some of which were considered by the UT in the recent case of MS & LS v Wakefield Council: [2021] UKUT 316 (AAC). The key statutory provisions are clear and well-known: section 42(2) of CFA 2014 requires LAs to secure the SEP specified in section F of an EHCP but section 42(5) disapplies this where the parents have made “suitable alternative arrangements”. The UT made clear that this disapplication is total, as well as providing guidance on assessing the suitability of school placements and the professional remit of Speech and Language Therapists (SALTs).
The case concerned the second of two iterations of child S’s EHC Plan (EHCP). In the first iteration, the parents of S sought A School, an independent s.41 school. The FTT found this to be suitable but considered sending S to the school as unreasonable public expenditure when a maintained primary school was also suitable and cheaper. The parents placed S at A School anyway.
Ahead of a secondary transfer, the LA named a maintained secondary school and the parents appealed. In the second tribunal, A School was found to be unsuitable on the basis that it was not delivering the provision set out in section F. The parents challenged this on the ground that the FTT should have considered whether A School was capable of delivering the Section F provision. The UT disagreed on the basis that the FTT had not been asked to consider this, the FTT’s inquisitorial role did not call for it to raise the matter, and fairness did not require submissions to be invited on the matter. The UT considered it particularly relevant that both sides were represented by experiences education law specialists, but also noted that the position would have been different if the FTT had been asked to consider whether A School was capable of delivering any section F provision that it was not, or might not have been, currently providing.
Another point in the judgment of importance is the relevance of SALT evidence to the issue of placement. The position of the LA and the FTT was that her evidence was not relevant to this issue but the UT disagreed. The child in question was autistic which the UT noted is generally accepted to be a social communication impairment, and said as follows:
“I find it very difficult to accept that, in principle, a speech and language therapist has nothing relevant to say about the appropriateness of a particular school for a child with autism, save for the suitability of the school’s arrangements for direct provision of speech and language therapy (by which I include connected matters such as staff training and monitoring of therapy provided by staff who are not qualified therapists). No child can be entirely self-taught and, accordingly, a child’s education is bound to involve some form of communication. Similarly, no process of socialisation can take place without some communication. Where a child’s condition involves, as with autism, a communication impairment, it might be thought obvious that a speech and language therapist would have much of relevance to say about matters going beyond the direct provision of speech and language therapy and extending into the communicative environment of a particular school. At the very least, proper reasons would need to be given by a tribunal for rejecting a speech and language therapist’s evidence on such matters.”
The third point is that identified at the outset of this post: an LA’s duties where the parents have made “suitable alternative arrangements”. As noted above, the LA’s section 42(2) duty to secure the provision set out in child or young person’s EHCP is disapplied in those circumstances. The Upper Tribunal clarified that such a disapplication is total, the entire duty to secure the section F provision is relieved, and the judge described A School as “a stranger to S’s EHC plan”. Importantly, however, for local authorities, the UT also said that an LA might legitimately seek to monitor a placement. This is so that it can continue to satisfy itself that the alternative arrangements are, indeed, suitable.
The fourth and final point is, again, a relatively straightforward one. The parents argued that the definition of “appropriate” in s.40(2) CFA was ambiguous and therefore should be interpreted with the help of the UNCRPD. It will come as no surprise to those who read the recent Supreme Court decision in R (SC) v SoS for Work & Pensions [2021] UKSC 26, that the Upper Tribunal dismissed this argument. The local authority argued, and the UT agreed, that “appropriate” is not ambiguous within s.40(2). UTJ Mitchell said that it was merely case-specific, and that, “the legislature chose to use a broad term such as this because a multitude of considerations are likely to be relevant in determining which school (or schools) are able to provide the education required by a particular child with special educational needs”.
Therefore, the First-tier Tribunal should not have considered whether the placement at School A would have been “inclusive” for the purposes of Article 24 because the SC judgment precluded such a consideration. However, the mistake was held to be immaterial to the FTT’s decision.
This case provides some helpful guidance on situations where parents make their own arrangements but it does not deal with the position where the parents’ alternative arrangements are not suitable, even though that was (on one view at least) the effect of the second FTT’s finding in this case. In such a situation it might be said that the parents are not discharging their duty under EA 1996, s.7 which is something to be dealt with through the school attendance order (SAO) process in EA 1996, s.437 onwards. The judgment mentions that the LA had threatened to serve such an order but they appear not to have followed through on that. This is understandable: there is plenty of room for argument about whether a school’s failure to deliver everything in section F of an EHC plan means that the child is not receiving a suitable education for the purposes of the s.7 duty. And even if it does, it would seem to follow that s.42(5) would not apply and the LA’s duty in s.42(2) would remain in force. So plenty for LAs to think about in these cases.
Paul Greatorex, Director, LASEN
James Dix, Paralegal, LASEN