| SPOTLIGHT |
An academy trust, which cannot be named, has successfully challenged Medway Council in the High Court over whether it should have been required to take a boy with learning and behavioural problems.
Sitting as a deputy High Court judge, Philip Mott QC said he hoped that following his quashing of Medway’s plan for child X “there can be a level of cooperation and communication which has been sadly lacking hitherto”.
X suffers from autistic spectrum disorder and has delayed language, communication, play and social skills, though has talents in remembering patterns and sounds and with computers.
He was the subject of an education, health and care plan in the Royal Borough of Greenwich before his family moved to Medway.
Medway initially proposed to retain the Greenwich plan, but the school declined, saying that it considered itself unsuitable to provide for the needs identified.
The judge said: “Rather than looking elsewhere for at least temporary schooling for X, Medway decided to amend the Greenwich plan and name the school. As a result, the school would be legally bound to accept X, by virtue of section 43 of the Children and Families Act 2014.”
He said Medway removed large sections of the Greenwich plan, which specified the special educational provision to be made for X.
The school unsuccessfully tried to get the Secretary of State for Education to overrule this under section 496 of the Education Act 1996.
A lengthy dispute followed during which the school described the facilities it lacked for X’s needs while Medway insisted it should take X.
Judge Mott quashed Medway’s version of X’s plan, finding that Medway failed to give conscientious consideration to the school’s response to its consultation in relation to X’s placement, and so acted unfairly at common law.
He also found Medway misdirected itself as to the operation of sections 33 and 39 of the 2014 Act, and failed to further the policy and objects of the relevant primary legislation.
The judge said: “There may well be a margin of appreciation between the judgments of different local authorities on the same evidence.
“But the difference between the Greenwich section F and the Medway section F is so great as to be way outside such a difference of interpretation or judgment.
“In my view it shows that one or other must be irrational…it is clear that most if not all of the other provisions specified by Greenwich are supported by evidence as being required, not just part of an ideal wish list.”
Solicitor Ed Duff of law firm HCB, who acted for the school, said: “In response to the concerns raised by the school, Medway Council took the extraordinary decision to edit the Greenwich EHCP to effectively remove all specified provision.
“Further…an SEN officer made clear that the local authority could simply ‘make’ the EHCP fit a mainstream school.
“Despite months of ongoing negotiation, requests for additional funding and extensive explanation from the school that it was not suitable for the young person, Medway bizarrely continued to oppose the position.”
Mr Duff said the judgment meant that the general presumption for mainstream education only arises once a local authority determines that the particular school the parents request is unsuitable.
“This is where Medway went into error because it felt that the mainstream presumption was an overriding duty rather than a backstop position.”
"A Medway Council spokesperson said: “We are aware that the judgement has been published and we will be reviewing the outcome.”
Mark Smulian
