THE KING (ON THE APPLICATION OF SWALCLIFFE PARK SCHOOL) v WOKINGHAM BOROUGH COUNCIL

Where a parent nominates a school under section 39 of the Children and Families Act 2014, consultation requires genuine dialogue. A local authority must engage proactively with the school’s concerns, including proposed reasonable adjustments, and allow a meaningful response before deciding whether the statutory exceptions apply.

The authority retains an evaluative judgment on suitability, efficient education and resources. It need not accept the school’s assessment, provided its decision has an evidential basis and is not irrational. A school has no veto over a parental nomination. A tribunal may make a consent order where appropriate, but the order does not cure an unlawful local-authority decision which it implements.

The claimant was a residential non-maintained special school. It challenged the local authority’s decision to name it in XYZ’s EHC plan, a First-tier Tribunal consent order adopting that placement, and the tribunal’s refusal to set aside the order.

The school argued that the local authority had failed to consult properly, had acted irrationally, had failed to consider safeguarding matters, and had not placed relevant correspondence before the tribunal. It also challenged the tribunal’s approach under the consent-order and setting-aside rules.

The central issues were whether the consultation was legally adequate, whether the local authority’s decision was irrational or unsupported by evidence, and whether the tribunal’s orders should stand.

1. Ground 1 allowed in part. The local authority was required to undertake further proactive engagement after the school maintained its opposition to the placement. Consultation required dialogue about the proposed reasonable adjustments, their likely effectiveness and their cost. The authority’s letter raised those matters for the first time, without explaining them or inviting the school’s response. The evidence therefore did not establish conscientious consideration of the consultation response.
2. The authority had not materially breached its duty by failing to provide the complete current EHC plan in November 2021. The school had already received substantial relevant information, including earlier plan material, expert reports, section F and the opportunity to assess XYZ itself.
3. The irrationality and safeguarding challenges failed. The authority had evidence specific to XYZ and was entitled to form its own evaluative judgment under section 39(4) of the Children and Families Act 2014. It was not bound to accept the school’s assessment of the seriousness or manageability of the behaviour. The high Wednesbury threshold was not met. The authority had considered, and rejected, the contention that safeguarding risks were insuperable.
4. Section 31(2A) of the Senior Courts Act 1981 did not prevent relief. It was not highly likely that the outcome would have been substantially the same after proper consultation. The later January correspondence was not a reliable guide to the counterfactual process, and a substantially different outcome remained possible.
5. The statutory scheme gives primacy to the parent’s and child’s views. Unless section 39(4) applies, the authority must comply with a parental nomination. The school has no veto and no right of appeal to the tribunal, although its evidence may be relevant in a contested appeal.
6. Ground 2 failed because the evidence did not establish a specific decision by the authority deliberately to withhold the school’s 17 January letter from the tribunal. The tribunal had not erred in making the consent order or refusing to set it aside. Agreement between the parties was an important consideration, and the tribunal’s evaluative discretion was exercised lawfully.
7. Nevertheless, the consent order was a necessary mechanism for implementing the unlawful local-authority decision. The decision to name the school and the consent order were quashed. The parties were required to complete the consultation process, the authority was to decide afresh whether to name the school, and the tribunal proceedings revived.