In 2020, amongst a backdrop of school closures and the selective allocation of school places, some families found for the first time that fighting for the right to go to school can be a draining, frustrating and frightening experience. For some families however, particularly of children with special educational needs, this fight is not limited to coronavirus lockdown. It is lifelong.
Working with Jack, aged four, reminded me just how hard it can be for some children to access this most fundamental right.
Jack is autistic and does not speak. His communication is limited to a couple of basic hand gestures. He is anxious and can become distressed by excess light, sound, or smell. He does not cope well with crowds and prefers smaller, calmer environments.
Experts agreed in 2020 that Jack needs a highly tailored and intensive package of support delivered in a special school environment to get an effective education.
As a result, it was no surprise when the council’s SEND panel recommended Southfield School, a special primary that met all of Jack’s needs. What was a surprise, however, was the local authority then refusing to secure a place that their own panel recommended, and that Jack’s parents supported.
Instead, the council attempted to secure a place at a mainstream nursery for Jack – despite the fact that the nursery had said they cannot meet his needs, that they were full and that Jack was too old. Jack’s parents were frustrated given that the nursery was woefully inappropriate, and the local authority had gone ahead and named them anyway (it would later turn out that the local authority had not even consulted with the nursery or informed them that they would be required to take Jack). His parents were determined to fight for Jack’s place in a suitable school.
Jack’s case was strong and would almost certainly be vindicated in court. However, legal disputes can take a long time to play out and, in the interim, Jack would have no education at all. One of his parents would have to give up work to look after him and he would lose out on desperately needed support at a critical point in his development.
With representation from an education lawyer at Just for Kids Law, Jack’s family issued a claim in the First Tier Tribunal, who have the power to overturn the council’s decision. However, the Tribunal had no capacity to hear the claim for nearly 6 months, a potentially devastating delay for Jack.
The council had never provided a legal reasoning to justify their decision and Jack’s solicitor believed that the Local Authority were forcing the family into a Tribunal claim to buy time and save costs. He felt this itself should be challenged and sought advice from specialist education and public law barrister, Steve Broach.
Steve agreed that a Judicial Review should be threatened. He supported in the preparation of an innovative challenge against the Local Authority’s refusal to place Jack in school, and their decision to force the family to appeal to the tribunal, despite their clearly untenable position. Soon after receipt of a letter setting out the proposed claim, the Local Authority conceded and finally secured a place Southfield School.
For Jack’s family, the win was a huge relief. But they remained angry about the council’s conduct. The Local Authority knew they had made an indefensible decision and were well aware of the human cost. The endgame was simply to save money by delaying long enough to place Jack in a different school that may have become available in the Spring Term 2021.
Jack’s representative had first raised a challenge in July 2020, yet the Local Authority did not concede until mid-September. This delay cost Jack and his family dearly. The emotional toll to Jack and his parents cannot be overstated. Jack is lucky to have a family who fought hard for his education and left no stone unturned in standing up to the council and advocating for him. But this meant Jack’s father had to give up working on his business, leaving the family with limited income.
Despite my years working with these cases, the council’s behaviour toward Jack appalled me. The disregard they showed his rights and welfare, the refusal to engage with legitimate and pressing questions and total lack of acknowledgement of wrongdoing demonstrated a contempt for Jack and his family that has led to real and lasting harm. After the Covid pandemic, when most families return to normal, I hope we remember that for many SEND families, the fight for suitable schooling is normal. That should concern all of us.
Written by Alex Temple, Public Lawyer and Policy Officer at Just for Kids Law.
All names and places have been changed.