Friday 29 April 2016

What to do if your child is refused a place at a special school

Iain Nisbet, consultant solicitor at Cairn Legal, looks at the parents' legal rights where a child with additional support needs is refused a place at a special school or special unit.

Boy, drawing
It is this time of year when education authorities across Scotland send out formal decision letters about children's school places for the next academic year.

It is obviously disappointing when any placing request for the school of choice is turned down, but it can be especially distressing if the parent's preference is for a special school and this is refused in favour of the authority's preferred option - a mainstream school.

 You will be all too aware that Scots law includes a "presumption of mainstreaming" - that all children will be educated in mainstream schools, other than in exceptional circumstances.  However, there are a few things to remember which may be of assistance in negotiations (or even appeals) with the local authority:

  1. The guidance on the presumption of mainstreaming is to be reviewed.  This is perhaps of less relevance to this year's cases, but it does indicate a commitment on the part of the Scottish Government to consider the issue afresh.  If you have views on the matter, then contact your (new?) MSP, engage with the consultation, or check out ENABLE's "Included in the main?!" campaign.
  2. What is the current provision (or proposed provision) actually like?  Where a child has been refused a place at a special school (or a special unit) on the grounds that placing them there would breach the presumption of mainstreaming, it is worth considering what the alternative is.  A child who is physically within a mainstream school, but not participating or engaging in mainstream education - or actually excluded from "mainstream" activities may not be having an inclusive or "mainstream" experience.
  3. A special unit is a special school, too.  In legal terms, the definition of a "special school" includes a special unit within a mainstream school as well.  There are two implications of this.  The first is that parents can make a placing request to a special unit within a mainstream school (you may have been told the opposite).  The second is that placing a child in a special unit within a mainstream school does not satisfy the presumption of mainstreaming, either.
  4. There are exemptions to the presumption of mainstreaming.  The presumption of mainstreaming does not apply if one of the three exceptions applies.  So, it is worth considering a) would the education at the mainstream school be suitable to the child's ability or aptitude? b) would placing the child at the mainstream school be incompatible with providing efficient education to the other children at that school? and c) would placing the child at a mainstream school involve unreasonable levels of public expenditure for the education authority?
  5. There is a discretion - eventually.  While the education authority have a duty to comply with the presumption of mainstreaming, if you appeal then the body hearing your appeal (whether it is the education appeal committee, the Additional Support Needs Tribunals, or the Sheriff Court) can effectively override the presumption of mainstreaming where they consider that to do so would be "appropriate in all the circumstances".
  6. Give it a try ...  Often these questions arise at the transition point between nursery and primary, or primary and secondary education.  Where a child attends the school proposed by the authority, it is possible to get a much better picture of how suitable the  provision is for the child's additional support needs on a day-to-day basis.  As with any new placement, the education authority should be keeping it under review to make sure it is working.
 If you are considering an appeal against a refused placing request, it is important to do so quickly, as the deadline is only 28 days (2 months in the case of appeals to the Additional Support Needs Tribunals).

Cairn Legal have experience in placing request appeals and can assist in the preparation for or representation at placing request appeal hearings.

To find out more, or to book an appointment, please contact Cairn Legal on 0141 303 8401 or e-mail iain@cairnlegal.co.uk

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