The Fun of Consultations

Its that time of year again - How many SEND leads are manically trying to stay compliant to bulk consultation drops, whilst only getting 15 days to do those 20/30 and that's if you only work with 1 LA, all whilst trying to do all the other bits the role necessitates.

The LA(s) seem to stick so rigid to those 15 days, ironically had they been so rigid in sticking to all other statutory bits like those 20weeks, or getting plans back to education settings in a timely manner or the whimsical setting of localised pieces of legislation we may not find the system in the mess it is!

Interestingly the COP sets a timeframe, but public law requires that any consultation (SEND/EHCP or any other for that matter) is carried out properly, meaning responses must be conscientiously considered (R v Brent London Borough Council ex parte Gunning), "the local authority should consider the comments they receive" - thats from the COP!

If a LA, ignores responses, overrides them without evidence or treats non-response as agreement they are at risk of acting unlawfully in public law terms, not just SEND law. So, not getting them done in time does not mean 'yes we'll have them all' - lord knows we're busy enough! Nor does it eliminate the LAs duty to ensure the placement is suitable and lawful, their responsibility in Section 42 CaFA 2014, which states: “The local authority must secure the specified special educational provision for the child or young person”, isnt one they can delegate (R (E) v London Borough of Islington).

Importantly the duty to secure provision takes precedence over the duty to secure preferred setting, this is proven in EH v Kent County Council and S v Dudley Metropolitan Borough Council

These cases show that parental or young person preference is not the be all and end all and actually it has to accept where the placement cannot meet need or would be incompatible with statutory tests. This aligns with Section 42 Children and Families Act 2014, this duty is absolute and definitely non-delegable, so ultimately the LA must prioritise securing provision that can be delivered, not simply naming a preferred or convenient setting.

Even when you do reply - all in line with the legislation at Section 39 Children and Families Act 2014 and timely, but state with evidence from the plan that you 'cant meet need' or 'it will impact others' , you get a 'well, we're gonna name you anyway'. Who has that happened to? Well, the LAs choice 'must be informed by the evidence and professional judgment of the institution responsible for delivery' as confirmed in Hertfordshire County Council v AB.

Any placement named must be lawful and 'deliverable at the point of naming' little verbatim quote from a case study - Essex County Council v SENDIST and in the SEND world 'case studies set precedence'.

A process driven solely by timelines, particularly in the context of bulk consultations, risks being procedurally compliant but substantively unlawful.

“The local authority is the servant of those in need of its support and assistance, not their master.” - Lord Justice James Munby