Education Law Case Study: Persuading Local Authority to amend EHCP so child with brain injury, supported by Court of Protection, was able to attend school of his choice

Who did we act for?

We were instructed by Daniel’s mother, whose son had suffered hospital medical negligence. Daniel has brain damage from birth due to hypoxic ischaemic insult. Daniel has a significant language disorder and, difficulties associated with gross/fine motor integration and sensory modulation, as well as cerebral palsy. These difficulties impact Daniel’s ability to access learning and function independently.

Daniel lacks the mental capacity to manage his own finances. Therefore, Daniel has a Court of Protection Deputy to assist with managing his finances. We worked with the Court of Protection appointed Deputy and Daniel’s mother on the matter.

What was the case about?

Daniel has an Education Health Care Plan (“EHCP”). Daniel attended a non-maintained residential and day special school for pupils with speech, language and communication needs. At Daniel’s last annual review, it was unfortunately concluded that the school was unable to offer him post-19 provision because he is not sufficiently independent for the school. The annual review also set out various recommendations for Section F of the EHCP, ie the provision that Daniel requires.

The parental preference for a post-19 placement was College A, another specialist facility. Following a robust assessment, and provision of a proposed education plan, College A confirmed that it could meet Daniel’s significant needs.

The Local Authority however named a different college, College B in Section I of the EHCP, a wholly unsuitable mainstream college. Further the local authority claimed that College B could support Daniel.

College A stated that they would be able to meet Daniel’s needs whereas College B said they might expect to meet Daniel’s needs after a period of assessment.

What did we do?

We assisted Daniel’s mother and his Court of Protection appointed Deputy in the appealing to the Special Educational Needs and Disability Tribunal regarding the naming of College B in Section I of Daniel’s EHCP. We advised, based on the finer details of the law, that the Local Authority had unreasonably named College B on the EHCP and that the appeal could address the clear reasons that College A, the parental preference, should be named in Section I instead. We communicated with the Local Authority and the Tribunal during the appeal process.

What was the outcome?

The Local Authority was persuaded to amend Section I of the ECHP, to name College A, the parental preference for Daniel.

Daniel had been attending College A during the appeals process and so the Local Authority also agreed to back date the payment of the fees charged to Daniel, to the start of the term. Daniel will now be able to attend an appropriate college for his needs and be supported by the Local Authority.