Fighting to hold local authorities to account over poor behaviour when allocating accurate EHCPs and suitable school placements for children with EHCPs

Introduction – Jake’s case

My name is Sara Moult, and I am the proud mum of Jake – a happy, incredibly bright 12-year-old boy who has Autism, and a Language Disorder associated with Chromosome Deletion which means he needs a very specific education and school setting.

Following a hard-fought legal battle with East Sussex County Council, resulting in an education tribunal judgment, we were able to secure an accurate EHCP and a suitable specialist school placement for Jake, and I am delighted to say that he is thriving.

However, the legal costs and the initial school fees that we have incurred along the way have been crippling. The emotional drain that it has also put on our family has been significant, and sadly I know that many families who find themselves in the same position as us have also struggled in the same way.

As so often happens, the local authority in our case failed to engage, and it felt at times like they were putting every possible stumbling block in the way to cause a delay, when all we wanted to do was find a school that could meet Jake’s needs.

Unusually however, following the judgment we as a family were awarded some costs as the Judge stated that ‘the respondent’s conduct justifies the making of an order for costs’, saying: “I have considered the effect on the applicant and on Jake. This led to the family having to incur unnecessary costs in preparing for an appeal hearing on 20 February 2023 on which the respondent’s position was unsustainable and with the clear knowledge that the Tribunal panel would proceed to name Northease Manor School.”

The award was made up of a contribution towards the legal costs paid in preparation and attendance at the second hearing, in addition to school fees which we had paid from the point at which East Sussex County Council had no alternative school to propose and the Tribunal considered the Local Authority unreasonably defended the appeal.

Northease was our preferred choice of school which our son was already attending, so not only did the naming of the school, and the costs decision, come as a huge relief to us, but it also shone a light on the issues that so many families face when battling a local authority in an education tribunal setting.

Sadly, however, we are now in a position where the Local Authority has submitted a request for permission to appeal the decision to award us the school fees costs and they have still failed to pay a penny of what they were ordered to pay.

The latest challenge does not include an appeal over the decision to award us a portion of the legal costs, however the process will result in an additional financial burden for us, as we must once again instruct lawyers and a barrister to represent us throughout the case in the Upper Tier.

What are we fighting for?

Fundamentally we are fighting for the Upper Tier Tribunal to uphold the costs decision. However, this case is so much more than that.

Emotionally, mentally and physically, we are exhausted, but we feel that we owe it to all the other families out there to pursue this case in a bid to raise awareness of how broken the system currently is. We want to help change this system so that the most vulnerable children and their families are protected against crippling costs fighting to give their children an education they desperately need and deserve.

This fantastic article in Special Needs Jungle puts into context the number of people impacted by this issue every single year – with local authorities collectively allocating an estimated £73m of their resources towards defending SENDIST appeals in 2021-22, and winning just 3.7% of cases.

What is unclear is how many parents choose not to appeal in the first place or to abandon appeals due to costs, time and the stress involved.

By taking on this legal challenge, we want to highlight:

• The limited power that the Special Educational Needs and Disability Tribunal has as a no-cost jurisdiction (the fact that most parents win but never recover their legal costs of taking the case).
• The subsequent lack of ‘accountability’ placed on local authorities, who have little incentive not to use delay tactics when naming a specific school within an EHCP (they effectively save on school and provision costs for the duration of the appeal)
• The emotional and financial impact that cases such as this can have on families, many of which face conflict and relationship breakdowns as a result of having to fight for suitable educational provision for their children.

A word from our legal team - Sarah Woosey, head of education law at Simpson Millar:

This is a potentially landmark case which, if the appeal goes to the Upper Tier Tribunal, could potentially set a precedent for costs moving forward. 

Year after year we work with hundreds of families who are forced to legally challenge the local authority’s failure to provide a suitable school placement for children with SEN.

While legal aid is available in some circumstances, this is extremely limited, and most families are forced to privately fund legal costs so that they have legal representation during the tribunal. Meanwhile, local authorities have access to their in-house legal specialists and many instruct external barristers. There remains a significant ‘inequality of arms’ in these cases. 

Through this case, we want to shine a light on the issue, and to call on the Government to carry out a review of the powers held by the Special Educational Needs and Disability Tribunal with a view to making it easier for families to recover costs in cases where an LA is held to account over its failure to name a specific school and/or act quickly enough to allocate a suitable school place.

We want the Government to use this as an opportunity to review the no-cost jurisdiction, and to provide better protection for children with SEN in the future. We are asking for them to provide a level playing field. At the moment, despite 96% of parents ‘winning’ appeals, there are no winners due to the delays involved.

 Financially, from a very short-term view of things, local authorities still save money by losing appeals.

Even after the long and drawn out fight endured by the parents in this case, the Local Authority then waited until the last moment to lodge an appeal against the decision to award the parents costs. 

The appeal (if permission is granted) deals specifically with the legal definition of whether the school fees paid by the parents are considered ‘incidental’ to the case.

There is no reported case law on this definition from within the SEN Tribunal’s jurisdiction.

Given that the only reason the parents had to self-fund the place at Northease was because of delays in the Tribunal process and the Local Authority’s failure to name a viable alternative, it is the family’s position that such costs incurred must be incidental and that the Tribunal has the power, as they have done, to order reimbursement of them when the Local Authority’s actions in this appeal were considered sufficient to justify the award of costs in the first place. 

As other parents and practitioners in this area will know, the bar to award costs is high and the Local Authority’s management of this appeal was considered to be extraordinarily poor.

Ultimately, Jake’s family has been forced into defending a successful decision and there is no funding available to assist them in defending that decision. It would be fantastic if their ordeal could benefit the wider SEN community as unfortunately their case is far from unique in terms of the ongoing fight they have had to endure to simply enable their son to receive suitable education.

Further insight into our case:

In 2019, Jake was granted an Education, Health and Care Plan (EHCP), which is a legal document that sets out a child's special needs in these areas and the support they require.

However, while the EHCP did refer to Jake’s diagnosis, it did not correctly identify or recognise his complex SEN or make appropriate and necessary provision to enable his progress. Once again as a family we had to fight for an INA to help him achieve in a mainstream setting.

In February 2022, Jake was allocated a mainstream Secondary School with inadequate provision for his needs.

In April 2022, we tried to improve the accuracy of the EHCP in a bid to secure a suitable learning environment, but were left with no other option than to appeal to the SEND Tribunal, after the Council failed to engage.

The Primary School that Jake was attending were also supportive of the appeal and agreed that he needed a specialist secondary school. Even the mainstream Secondary School originally allocated to Jake eventually admitted that they could not meet his needs.

The Local Authority’s position would have inevitably left Jake without a school to attend, and eventually we were forced to transfer him to Northease Manor School – a specialist co-educational independent school in East Sussex for primarily autistic students and also students with dyslexia.

Initially, we had the support of a specialist SEND Advocate and Consultant, Jeannette Bidder up until and including the first Tribunal date but due to the unforseen and unreasonable behaviour by the Council we were advised by our SEND advocate to instruct a lawyer when the local authority instructed a barrister and began raising safeguarding concerns about the school. 

We appointed education lawyer Sarah Woosey from Simpson Millar to help us.

East Sussex County Council had said they didn’t have the report whilst further evidence proved that they did and that they had in fact sent it to other Local Authorities during this time. They failed to meet many deadlines leaving us distraught in the balance. In February 2023, the Tribunal ordered East Sussex County Council to update the EHCP including the naming of Northease Manor School.

This meant that the Local Authority was legally obliged to fund his school place moving forward. However, the costs incurred by us up until this point – both in terms of legal costs and school fees – had been significant.

In recognition of this, our solicitor, Sarah Woosey, made a costs application in order to recover the costs incurred for the period of time in which the Local Authority unreasonably defended the case.

The application was successful, and the Local Authority was ordered to pay over £7000. Although a quarter of what we had spent fighting for our child’s rights, it goes towards repaying the extra loan that we had to take out leaving us with a lifetime of debt. The award includes a proportion of legal fees and a contribution to the school fees already incurred by our family.  It is this latter decision which is now, yet again, being challenged by the Local Authority.

We hope that people will help us by donating to try and obtain justice for us and the many other families out there in their pursuit of their children’s happiness and appropriate education that these vulnerable children deserve.

Thank you!