In recent years, England has witnessed a concerning trend in the area of special educational needs and special school places. The demand for specialist provision has soared, well above the available supply of special school places or mainstream schools with suitable special educational provision. As a result, children, young people, and their families are facing significant challenges in accessing the education and support they need. This article addresses this crisis, the legal frameworks governing it, and potential avenues for redress.
The Problem
Government statistics paint a stark picture: the number of pupils with Education, Health, and Care Plans (EHCPs) has surged by 64% since 2016, with a 9% increase in the past year alone. While many of these students can be accommodated in mainstream settings, a substantial portion require specialised placements. State-funded special schools have seen a nearly 5% increase in enrolment, totalling nearly 150,000 pupils in 2022-2023—a third more than in 2016. Alarmingly, half of these schools are oversubscribed, exacerbating the shortage crisis.
The repercussions of these shortages are profound. Some overcrowded special schools have resorted to converting non-classroom spaces into teaching areas, compromising the learning environment. Some students face prolonged periods without suitable school placements, while others endure lengthy commutes to attend distant schools. Local authorities, grappling with budgetary constraints, often resort to independent specialist provision, further straining resources.
The question is – what can be done to tackle this crisis?
In the long term: local and national “target duties”
Both central and local governments have statutory duties to promote educational provision. These are called “target duties” as they are not absolute in nature, but aspirational. They require the public body to aim to achieve a prescribed goal, but failure to achieve it without more does not generally constitute a justiciable breach (R v Inner London Education Authority ex. P. Ali [1990] 2 WLUK 202). Strategic litigation aiming to challenge funding allocations has faced limited success.
At the local level, local authorities have duties under the Education Act 1996 (EA) and Children and Families Act 2014 (CFA) to provide efficient education as far as possible, to promote high standards, fair access and the fulfilment of learning potential, and to ensure and review the provision of special school place. Local authorities are also required to adhere to the Public Sector Equality Duty under Section 149 of the Equality Act 2010.
At the national level, the Secretary of State has target duties to promote education, to provide funds to public bodies responsible for securing educational provision, and to comply with the Public Sector Equality Duty, to have regard to the need to eliminate discrimination and advance equality of opportunity.
Government initiatives, such as the SEND Improvement Plan, acknowledge the crisis and propose remedies to the problem, such as investment in new free schools. However, questions linger regarding the timeline for implementation and the efficacy of long-term solutions. In the interim, stakeholders must grapple with urgent challenges, advocating for immediate relief measures.
In the short term: avenues for redress
Whilst there are proposals in place to tackle the problem in the longer term, the question remains how this issue can be tackled in the short-term, whether representing parents, young people or local authorities.
SEND Tribunal
Parents and young people who are unhappy with proposed special education placement named in their EHCP, or the absence of a named placement, can appeal to the First-tier SEND Tribunal. These appeals are commonly known as “Section I appeals,” referring to the educational institution specified in Section I of an EHCP. The SEND Tribunal has the power to compel local authorities to conduct EHC needs assessments, issue EHCPs, and revise existing plans.
According to Section 38 of the CFA, local authorities must consult with the child’s parents or the young person themselves regarding the EHCP’s contents, and they have the right to request that a specific school is named.
If parents request a school of a type that is not listed in Section 38, the local authority must designate an appropriate school under Section 40, taking into account Section 9 of the EA.
Section 43 of the CFA stipulates that if parents request a school of a type that is listed in Section 38, the local authority must name that school unless Section 39 of the CFA applies, in particular:
- Section 39(4)(a) – if the school is unsuitable for the age, ability, aptitude, or special educational needs of the child or young person, or;
- Section 39(4)(b) – if the attendance of the child or young person at the school would be incompatible with:
- (i) the provision of efficient education for others, or
- (ii) the efficient use of resources.
Section 39(4)(b) is particularly pertinent for the purposes of this article and the shortages in special school places.
To argue against naming the parent’s preferred school, the local authority may contend that Section 39(4)(b)(i) applies and that it would be incompatible with the provision of efficient education of others. This often arises when a local authority refuses to name a maintained special school due to oversubscription, opting instead for a mainstream school or one with a SEN Unit or Resourced Provision. Meeting this threshold necessitates substantial evidence and can be very difficult to argue.
Similarly, the local authority may argue that Section 39(4)(b)(ii) applies and that it would be incompatible with the efficient use of resources to name the parent’s preferred school on the EHCP. The Tribunal will have to assess whether the costs of the preferred school would be disproportionate. This commonly occurs when parents suggest an independent special school, potentially more expensive than a state-funded alternative identified by the local authority.
The local authority must also consider Section 9 of the EA when the child is of compulsory school age and the parents request a school of a type listed in Section 38. While the Section 39 test requires the Tribunal to consider the resources of the local authority, the Section 9 test demands a broader examination of public expenditure, encompassing healthcare, social care benefits, and the general principle that pupils should be educated in line with parental wishes, subject to considerations of efficient instruction and training and avoiding unreasonable public expenditure.
In short, the SEND Tribunal is one avenue for a parent to be able to redress the issue of shortages in special school places, but the local authority may seek to argue against naming a parent’s preferred school.
- Judicial Review
Judicial review offers a mechanism to scrutinise the lawfulness of local authority decisions, particularly in cases of breach of statutory duty or human rights violations.
Parents bringing a Judicial Review (JR) claim may argue a breach of the statutory duty contained within Section 42 of the CFA. This section mandates that if a local authority maintains an EHCP for a child, it must secure the specified special educational provision for that child. This duty is absolute and non-delegable, meaning there is no defence of ‘best endeavours.’ Breach of this duty, such as failure to secure special educational provision despite being named in the EHCP, may lead to successful JR claims.
Additionally, if a child is out of school due to reasons such as the absence of a suitable specialist placement, the local authority must make arrangements for suitable interim education. Failure to do so can constitute a breach of duty, such as in the case of R (LB) v Surrey County Council [2022] EWHC 772 (Admin), leading to a mandatory order for the local authority to fulfil its obligation.
Article 2 of the First Protocol to the European Convention on Human Rights (ECHR) can also be used as a basis of JR. This Article guarantees the right to education, but in practice, it is a relatively weak right as it ensures access to existing educational institutions at a minimum standard and does not mandate the establishment or subsidisation of specific types of education. However, this Article could be relevant in cases where a child is effectively denied access to education, assessing whether there has been a complete denial of the right to education.
However, there are substantial difficulties with going down the JR route; legal practitioners will know that JR serves as a last resort, necessitating prompt action and adherence to procedural protocols.
- Alternative routes of redress
In addition to avenues such as SEND Tribunals and Judicial Review, alternative routes of redress could be used by parents such as local complaints procedures, intervention by the Local Government and Social Care Ombudsman, or mediation. These options provide further opportunities for redress and resolution in cases concerning the provision of special educational needs support. Local complaints procedures enable parents and young people to voice their grievances directly to the relevant authorities, fostering communication and potentially resolving issues at the local level. Intervention by the Ombudsman offers an impartial review of complaints, ensuring accountability and transparency in decision-making processes. Mediation provides a collaborative approach, facilitating dialogue between parties to reach mutually acceptable solutions outside of formal legal proceedings. These alternative avenues empower parents and young people to seek resolution through various channels, complementing the formal legal framework and promoting the best interests of children with SEN.
Conclusion
The shortages of special school places in England represent a multifaceted crisis with far-reaching implications for vulnerable children, young people, and their families. Addressing this challenge requires concerted efforts from policymakers, legal professionals, and advocacy groups alike.
Lauren Gardner, Barrister. Spire Barristers
