10 July 2024

What do you do when a school doesn’t want your child? When the school you want to name in your child’s EHC plan not only says they can’t meet the child’s needs but seems dismissive of the very idea, and of your child themselves? 

Our Tribunal Support Service advisers support families in this position, which is a hard one to be in: you might accept that you’ll have a fight on your hands to get the local authority to apply the law, but it feels particularly harsh to come up against a school pushing back. Who wants to send their child anywhere they aren’t welcome? 

The new government is committed to educating a higher proportion of children with SEND in mainstream schools – but what if schools themselves resist this? 

Misunderstanding the law 

We regularly see copies of correspondence from schools to parents that demonstrates a misunderstanding of the law. A common misunderstanding is a school’s belief that some children are not suitable for mainstream education, usually because they consider that their SEN or disabilities are too great or too complex. 

But ‘suitability’ is not a reason in law for a local authority (LA) to refuse a child a mainstream education. This can only be denied if both of these two conditions are met:

  1. a mainstream placement would be incompatible with the efficient education of others, and 
  2. there are no reasonable steps the LA could take to avoid this 

The degree or complexity of the special educational needs (SEN) or disabilities, and the suitability of mainstream, is not a reason in law for refusal of a mainstream education. 

The right to a mainstream education 

This right to a mainstream education, which is set out at section 33 of the Children and Families Act 2014, provides a general right to a mainstream education, not a specific mainstream school. 

When a parent wants their child to have a mainstream education and makes a request for a specific mainstream school or college, the LA is entitled to consider whether that school is suitable for the age, ability, aptitude or special educational needs of the child or young person. 

It is also allowed to refuse the request on the grounds that the attendance of the child or young person would be incompatible with the provision of efficient education for others, or incompatible with the efficient use of resources. 

If the LA concludes that one of these reasons apply – perhaps because the child requires something which it is physically impossible to provide in that setting, or which can be provided more cheaply at an alternative suitable school – it must name an appropriate setting, or type of setting. This will need to be mainstream, unless that would be incompatible with the efficient education of others, and there are no reasonable steps the LA could take to avoid this. 

This is a high hurdle for an LA to meet, and the right to a mainstream education is a strong one. It can’t simply be disregarded or easily displaced. Even if a parent’s specific placement request was lawfully refused when first requested, that school could be back on the table as an appropriate setting as a result of additional provision or reasonable steps secured by the LA, and therefore could be named in the child’s EHC plan.

Training for schools 

We try to counteract legal misunderstandings through our SEND law training conducted by our legal team, which includes training for teachers and SENCos. 

The aim of the training is to provide school staff with the opportunity to explore key issues in SEND law relevant to their role, helping them understand their legal duties towards children with SEND and correctly apply the law. However, often we receive questions from schools about how they can avoid accepting a child while remaining within the law. 

We observe that some schools appear resistant to a child’s right to mainstream education, even if that’s what their parents want. Sometimes, we are asked how schools can legally argue that their school isn’t suitable for a particular child.

A huge fail in inclusive education 

Regrettably, some parents decide that it’s not a fight they want to have. Some even conclude that the only option is “education otherwise than at school” (EOTAS). But EOTAS should only be arranged when it isn’t appropriate for a child’s special educational provision to be made in any school, and their parents haven’t chosen to home educate them. 

It isn’t something that parents can request in the same way that they can request a particular school or college. It depends on a child’s circumstances, which will obviously vary from child to child. 

How have we ended up in this situation where parents are so alarmed by the attitudes of mainstream schools that they believe the only way their child’s needs can be met in empathetic surroundings is by taking them out of school entirely and requesting EOTAS? 

This is a huge fail in inclusive education, and makes a mockery of the Children and Families Act 2014. We understand – of course – that schools are under huge financial pressures. But there is something about the way some schools externalise this pressure onto the families of children with SEND, and the way they sometimes talk about individual children, that should make us all uncomfortable.

 

About the author

Catriona is responsible for IPSEA’s work in bringing about change by influencing the development of SEND policy nationally. Her background is in public policy and communications, and she has worked for a number of charities and public sector organisations, as well as in Parliament. In the past she has served as an elected councillor in a London borough, a special school governor and a charity trustee. Alongside her work, Catriona cares and advocates for her teenage daughter, who has complex needs. When there’s any spare time, she loves walking all over London and hiding in bookshops.

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