Case overview

The parents of a child with a Statement of Special Educational Needs (this was an earlier version of an education, health and care (EHC) plan) appealed to the SEND Tribunal about what the Statement said about special educational provision and the school named in it.

The parents’ appeal was not successful in the SEND Tribunal and they appealed its decision in the Upper Tribunal.

Special Educational Provision

The Upper Tribunal decided that the Statement had been too vague, and confirmed it should set out concrete provisions rather than simply recommend types of provision.

Placement

Because the independent school the parents wanted was 50% more expensive than the academy named by their local authority (LA) in the Statement, and had no specialist provision, the LA said the cost was unreasonable public expenditure, and the SEND Tribunal had agreed.

However, the Upper Tribunal said the SEND Tribunal had made an “error of law” (a mistake) because an earlier case (known as IM v Croydon LBC [2010] UKUT 205 (AAC) ) had set out certain things which must be considered when parents ask for an independent school to be named, and the SEND Tribunal had not considered those things.

What does this mean?

Special Educational Provision

This case confirms that wording in EHC plans must be specific, to make clear what a child or young person must receive. The judge said the SEND Tribunal “should not rubber stamp a Statement that is inadequate. The Statement that was accepted in this case was vague on the ‘who, what, when and how long’ details that were meant to spell out the LA’s duties.”  

Placement

This case confirms that a parent’s choice of school being more expensive does not necessarily stop it from being named in a child’s EHC plan. The benefits provided by the more expensive school have to be considered and the full picture might justify the extra cost.

Section 9 of the Education Act 1996 says that pupils are to be educated in accordance with the wishes of their parents, as long as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.

When considering whether to agree to name an independent school in an EHC plan, LAs (or the SEND Tribunal in place of the LA) must consider the following:

If	Then
two schools have been proposed (one by the LA and one by the parent)	consider: are both schools appropriate?
the parent’s preferred independent school is appropriate, and the LA’s proposed school is not	the parent’s choice must be named
both schools are appropriate	consider: would naming the parent’s choice be incompatible with the provision of efficient instruction and training? Or would the cost be unreasonable public expenditure?
both schools are appropriate and naming the parent’s choice would be incompatible with the provision of efficient instruction and training and/or the cost would be unreasonable public expenditure	the LA’s proposed school must be named
both schools are appropriate and naming the parent’s choice would not be incompatible with the provision of efficient instruction and training and/ or the cost would not be unreasonable public expenditure	the parent’s choice is able to be named

 

Whilst Statements have been replaced with EHC plans since this case, the principle remains the same, meaning this case is still relevant.

The full case report for EC v North East Lincolnshire LA (HS) [2015] UKUT 0648 (AAC) [2016] ELR 109 can be viewed online.

For more information, you can see our pages on what an EHC plan should contain and choosing a school or other setting in an EHC plan.