• SEN Legal for Schools

Further Education Colleges - beware of parents being misled...

We have been made aware of a number of cases where parents appear to be receiving phone calls and letters saying that their Child/Young Person must move on to a Further Education College (FE) at 16.

As you should already be aware there is nothing in the Children and Families Act 2014 or the Special Educational Needs and Disability Regulations 2014 which says that. A parent’s first question should always be “can you show me where it says that” It doesn’t, of course.

Whilst an FE college may be less expensive for the Local Authority, the legal test remains what is the educational provision required? Parents can also take comfort from the following cases:

W v Gloucestershire County Council [2001] All ER (D) 121, in that case the High Court decided that a child could not be moved once an examination course has started unless this would be without detriment.

Examination body, curriculum content, course numbers, order in which modules are taught, and ability to “catch up” also make it very difficult for a Local Authority to change schools or school to college. In R (S) v Norfolk County Council [2004] EWHC 404 (Admin) the High Court ordered interim relief to preserve the status quo pending an Appeal.

In the alternative should the Local Authority issue a Notice ceasing to maintain the EHC Plan, the EHC Plan remains in force if there is an Appeal to the SEND Tribunal until the Appeal is decided. This means that any specialist independent school fees must continue to be paid. See Section 45(4)(b) of the Children and Families Act 2014.

Bearing in mind the increased workload in the SEND Tribunal and consequently delayed hearings, the EHCP will likely be extended for the greater part of a year whilst parents wait for a hearing date which means for the whole time, your independent school/college continues to be paid and the child/young person, remains as they are – a tactical move perhaps.

If parents need advice about whether to Lodge an Appeal or what their rights are, send them in our direction. We can help.


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