EHCP support thread no. 6

Unfortunately, our SS secondary placement hasn't worked out and we're asking for an emergency AR and pursuing an EOTIS package for DS.

I'm waiting to hear back from the private EP we've worked with to see if she'll be able to attend the AR and/or write up an addendum to her most recent report (which is now 14 months old). Otherwise I think the only other current evidence will be the school's own statement and documentation. We haven't had any input from CAMHS (still waiting for our referral to make it through the system), but we could possibly arrange a follow-up with a private psychiatrist and get a letter from our GP.

Will this be enough to prove the need for EOTIS?

If the EP and psychiatrist are not available before the AR, can we submit their evidence afterwards?

Am I correct that the LA must respond to the AR within four weeks, and, if they agree to amend, they must issue a finalised EHCP within 8 weeks (so 12 weeks total from the date of the AR)?

DH and I are starting (with input from DS) to map out what we think would work for him as part of EOTIS provision. Do we need to have this completely ready at the AR?

Placemarking. Only just found this thread. DD 16 ASD doing A levels (fell out of school in Y9; attempted to start again at 6th form.) We are waiting to hear back from tribunal after refusal to assess. On the run for the rest of today; will RTFT later!

Focus on the provision in F rather than funding.

Sometimes there are SLAs for all (or rather all of what that provider can provide because there are some CYP’s provision the SLA providers can’t provide) or some therapy provision. There might not be any specific separate funding.

@KeepItSpinning thank you so much, that’s really helpful to hear. And that’s a very valid point re. transport.

I just had another question. Following tribunal, there is now provision in F for OT/SLT time, carried out by local NHS service. When the funding was updated, there was no mention of additional funding for OT/SLT time (over 40 hours in total).

Should funding for this be awarded? Or perhaps do they have service agreements in place meaning they don’t need to fund it separately?

@Ratchet101 speak to the LA and school. As well as also speaking to your second preference, contact any other schools who have been consulted or you suspect may have been consulted.

There has always been EHCPs (and SSEN before that) finalised after national offer day for the normal admission round. It isn’t that they weren’t designed to run like that.

It doesn’t matter that the EHCP has been finalised after the national offer day for the normal admission round. EHCP admissions are dealt with separately to normal admissions. The normal admission process doesn’t matter. The finalised EHCP overrides any offer made via the normal process. The school being at PAN isn’t enough of a reason for the LA to refuse to name the school. On its own, being at PAN or ‘full’ is not enough to prove incompatibility. This applies even in infant classes at 30. Pupils with EHCPs naming the school finalised outside the normal admission round are excepted pupils for infant classes size purposes.

Incompatibility with efficient education of others or use of resources isn’t always about the number of pupils. There are other possible reasons.

@Ratchet101 the problem when EHCPs are finalised late is that schools already have their allocation of students for the coming September. What should happen, as said above, is that EHCPs are sorted out first, then general applications, so if schools have eg been allocated 2 EHCPs, they know that they have 2 fewer places to offer in the general allocations. When an EHCP place is requested after this, the school will already have allocated all their spaces and so an extra student will be more than they are expecting. Hence they reject the request.

If you had been offered a place in the general allocation, they would have likely have accepted the EHCP consultation.

I would push the LA - the school's answer is about the number of students they have, not about whether they can actually meet need. I would also check your timescales - if the LA have taken longer than they should, would the EHCP have been finalised before allocation day? If so, you have a lever to suggest that this would not have happened had they done their job properly....

Thank you @KeepItSpinning and @Phineyj

Going through both admissions types simultaneously is overwhelming and confusing and we are often getting different advice from different individuals we speak to.

In the meantime, I'll work on the draft but also communicate with our second place as in line with standard admissions procedure they have started to send through paperwork to complete with deadlines. As well as links to school uniform etc. We had initially avoided completing any of this as we haven't known what to do next

This has been the most helpful and clear advice so far. Thank you

When you say to dig deeper, is this usually with the school or LA or both? My plan was to contact both schools and chat with their SENCOs face to face and follow up with emails but also to have another look at the schools. But do we also reply to our case worker with these questions to ask for specifics of like you say "incompatibility".

Hi @ratchet this is not your fault. The EHCP system is supposed to be sorted re the school place in advance of regular admissions. The systems were never designed ro work in parallel like this (we had the same issue with an EHCP granted in June before a late August year 7 start - however the LA named our allocated school which we were happy with).

I think put your energy into getting the EHCP as good as you can. Our LA did make aome of the changes I requested although tbh it's still a poorly written document. Just keep saying our parental preference is school X on repeat. You may yet get it.

what does this mean

For schools that are not wholly independent, the LA must name your preference unless the LA can prove:
-The setting is unsuitable for the age, ability, aptitude or special educational needs of the child or young person; or
-The attendance of the child or young person would be incompatible with the provision of efficient education for others; or
-The attendance of the child or young person would be incompatible with the efficient use of resources.

This is set out in section 39(4) of the Children and Families Act 2014. Unless the LA can prove one of the above, they can and must name the school even if the school objects when consulted. You don’t need an offer of a place. That is only required if the school is wholly independent. However, LAs sometimes refuse and force parents to appeal.

The bar to prove one of the above is high. Far higher than LAs and many schools admit. It has to be something tangible and specific and is more than an “adverse effect”, “impact on” or “prejudicial to”. So, you need to dig into the specifics rather than the vague reasons LAs often rely on. For example, what resources &/or other children? What incompatibility? Is it really incompatibility with efficient education or only incompatibility with providing an education in excess of what is considered an efficient standard of education? Could anything reasonably overcome the incompatibility? What are the cost comparisons?

what are our choices to proceed?

When the LA finalise, your options are a) appeal, b) don’t appeal and attend (or attend once CSA) the school named, or c) don’t appeal and make your own arrangements. You could, in theory, request an early review with the aim of requesting another placement. However, the LA is highly unlikely to agree to hold an early review at that point.

Does this mean we have to name our second choice in section I ?

You don’t name a school in section I. The LA does. You state your preferred placement in response to the draft. The LA may or may not name your preference.

And if second choice say that same does that mean we have no school?

A (non-wholly independent) school objecting when consulted doesn’t necessarily mean the LA won’t name them. When LAs don’t name parental preference(s), most of the time they name another school. A minority of EHCPs will only have a type of placement named. Although, where mainstream is named as type case law dictates a specific placement should normally be named. An even smaller number of EHCPs will have section I completely blank - this is unlikely to be something you need to worry about.

Please help! - DS is 4 and due to start reception school in September.
Our first choice is a close by MS, has good SEN provisions and when I spoke to the Head during an open day, I told them DS needs (suspected ASD with social and communication difficulties) and was told those needs could be met, with or without an EHCP.
Our second choice - also MS - admited their SEN provisions were limited and only really available to children with an EHCP. However the school itself has movement breaks and a lot of ourdoor learning as part of their ethos.
We received notification an EHCP would be issued to our son 5 days before primary school placements were announced.
We got our second choice school and called the LA for advice, which was to continue with the admissions route as once the EHCP was finalised and issued, he would no longer be on the LA primary school admission route. So we accepted the second choice place and a week later were issued the draft EHCP (which is a mess - but that's another story). We asked for our first choice school to be named and were told that consultations to both settings had been sent and at this time, unless our 1st choice indicates they can meet DS needs, the school placement for our 2nd choice will be upheld. If we're not happy with the school we have accepted, we'll will need to appeal the decision as detailed in letters of communication we received via the admissions team.
Our case worker also said:

"As the placement was accepted by you, unless First choice indicate they can meet need, at this time I feel that the placement of 2nd choice may be upheld. I need to wait to see the responses from both settings before proceeding to name a setting in section I of the finalised EHCP".

We have now seen First choice have submitted the following "The setting should not be named in the final EHC Plan because the attendance of this child or young person there would be incompatible with the efficient education of others, or the efficient use of resources". The second choice school still pending.
Please what does this mean and what are our choices to proceed? Does this mean we have to name our second choice in section I ? And if second choice say that same does that mean we have no school?
Very stressed, all the while trying to make comments and amendments to draft that I'm already aware may or may not even be taken into consideration.
Any advice?

The LA doesn’t need permission to finalise. They will still have to ensure DS receives a suitable full-time education under section 19 of the Education Act 1996 and anything in F as per section 42 of the Children and Families Act 2014.

Thanks for your response. This is such a mess. Our case worker has just replied to say that the EHCP is being finalised and sent for signing and the provision will be specified in section F with details of what has been agreed.

I presume she means what has been agreed in isolation by the LA as they haven’t agreed anything with HOP or the school. Have not had any further drafts so not sure what it will say.

we will appeal - what are our rights in getting access to a full time education in the meantime? I am worried HOP will now dig their heels in and not do any more than he currently has if section F turns out to be useless

I would think very carefully before saying you don’t want transport. You do not know what the future holds. If your preference is a maintained SS close to home, the LA would have a difficult job of showing incompatibility with efficient use of resources based on transport costs. I wouldn’t even entertain it.

If you are looking at maintained SS, the LA is likely to name the nearest that can meet needs. However, LAs are sometimes reluctant to name OOA schools and force parents to appeal. It being OOA doesn’t mean it can’t be named, and it doesn’t change when it should be named.

Costs aren’t the same for all. Some will cost more than others. It depends on what provision is required and what is included in the base fees. Sometimes LAs claim their schools are nil cost, because they are place funded, so according to them, any OOA school is automatically more expensive. Don’t listen to this. Costs are still relevant. Besides, in reality, in the vast majority of cases there are costs associated with attending the LA schools even if place funded. And with the current pressure on places, SS are mostly over the number of pre-paid places, anyway.

@KeepItSpinning thank you very much, will be careful what I say and will post here again when I’m at the registering appeal stage.

Parental preference school is maintained special school, out of area but closer to home than a couple of the home LA maintained special schools.

If multiple special schools can meet need, what is the deciding factor? Is it cost comparison? Can I say I don’t want transport to lower the total costs of my preference?

Excluding transport costs, is the cost of a special school placement the same for all children? Or does a placement cost less if children already live in that LA?

When the LA finalise, you will need to appeal.

There is so much more to a proper EHCP than core subject tuition, mentoring and a club.

Physical activity should be included in F. However, even if it isn’t, DS would still be entitled to it. It is part of a broad and balanced curriculum required under section 19 of the Education Act 1996.

Providers must not be named in F.
If there is to be a dual placement or some provision to be made in a school and some otherwise than in/at school, that does need to be explicit in F, but not provider names.

HOP can cover DC with EHCPs too, but that solution doesn’t sound right for DS. If DS isn’t to attend the mainstream school, the school should not be named in I.

So we’ve heard back from the LA after both myself and the school went back and said that there is no evidence that DS can practically access flexi schooling and his needs can’t be met.

the decision is still flexi school, but they have said they will continue to fund his current provision at HOP as they work to reintegrate him. I didn’t realise they could do this as HOP always said the provision is for young people without EHCPs. My concern about this is it’s a temporary intervention that he’s likely to need to access for an extended time. He currently has 12 hours of tuition online (maths English and science only), an hour of in person mentoring and 2.5 hours in person club each week, so this is not meeting the definition of full time education. He also has no physical activity (which I’m struggling with as he’s autistic and adverse to it so is putting on weight). I have already asked to make this specified in section F alongside other amendments which haven’t been incorporated into the draft yet.

the LA is seeking to finalise and issue ASAP so I’ve asked for section F to clearly quantify the house and the activity and specifically the role of HOP vs the school but I’m worried they will come back without those changes and I’ll have to appeal.

the one good thing is DS is happy and settled and has been making progress with the in person elements (I had to stay completely to begin with and now I drop him off for both) so this isn’t a terrible solution, but with the woolly wording we currently have there’s nothing to say that we can build on this to support him.

any advice on what next? I’ve asked HOP and the school for a conversation with no response, though they have asked the LA for a call so I can guess they are not supportive of this.

I would be careful about when you tell the LA you are getting independent assessments. If you give them advance notice, the LA may try to get in there first. Some testing can only be done once within specific time periods.

The placement named in I is the logical conclusion of B&F. B + F = I. Not spending any time in class, not receiving teaching by a teacher, etc. should all be considered as part of the case, during assessments, when proposing amendments to B&F, etc.

@KeepItSpinning Thank you for confirming, I thought as much.

From September, DD will have no opportunities for whole class integration with Y1 peers, no direct input from a qualified teacher (provision room is staffed by TAs), she’ll be unable to access any of the National Curriculum - does any of this help my case for a special school? Or does this not matter and it’s only what’s in Section F that matters?

I will definitely appeal B and F as well and say I’m in the process of commissioning additional evidence.

Is it true that if I want to request a change of placement, DD has to be reviewed by the LA EP first (the one attached to school)?

No.

I was planning to register an appeal as soon as I have the right to do so as I’m conscious of time and didn’t want to waste 6/7 months waiting for an early review only to have to go through the appeal process then anyway.

If you want a change of placement, this is what I would do. You should appeal B&F as well. You can start to gather more evidence and that can continue even after you submit an appeal.

Hi all, hope everyone is doing well. Following the tribunal in Jan, DD’s EHCP funding has now been increased to reflect the additional provision.

Annual review is next month and I just had a few questions. Is it true that if I want to request a change of placement, DD has to be reviewed by the LA EP first (the one attached to school)? I didn’t think so, but that’s what school have said.

Technically, school (mainstream) can meet needs and deliver section F provision, not via the main classroom but via the unofficial provision room. DD currently spends most of her day in this room and next year will be spending 100% of the day in here.

LA EP said to school that I’d have a stronger case for special school if we hold an early review next year and I wait for the EP to review DD during term 1 of Year 1 as by then her day will be vastly different from Year 1 peers (most of it already is though). DD is currently in reception.

For various reasons, I don’t always trust what the LA EP team say.

I’m 99% sure that I’d have to appeal to get a chance of parental preference special school (maintained, out of area) being named, as I’ve visited twice and they said 9 times out of 10 they can meet needs but they are ‘full’ but children are getting a place via tribunal. The HT said until now, the school ‘never win’ at tribunal when they say they’re full.

I was planning to register an appeal as soon as I have the right to do so as I’m conscious of time and didn’t want to waste 6/7 months waiting for an early review only to have to go through the appeal process then anyway.

But not sure what to do as not sure if my case is strong enough at the moment without changes to B and F, I will probably need to get an independent report done but nothing confirmed yet.

What should happen following the review meeting is:
Within 2 weeks of the AR meeting, the school should circulate a report.
Within 4 weeks of the AR meeting, the LA must inform you if they propose to amend or not. If they are, they must send the amendment notice/draft/notice of amendment/proposed amendments (whatever the LA/you want to call it) at the same time and you must be given at least 15 days to comment on the amendments and state your preferred placement, and then the LA must finalise within a further 8 weeks.

If this hasn’t happened, you need to chase the LA. I would also start to look for someone with capacity to write a pre-action letter in case chasing doesn’t work.

Then the next review will be next year.

So a kind of update, please can you tell me if this is right? the review date has changed on portal to next year, I haven’t received the renewed ehcp yet but they have sent forms to school for different people to fill out so it can be put to panel for specialist schools. Considering she told me it would take 3 months for this surely I would receive a updated ehcp in the meantime or is it they are going to panel for the specialist school place first so they can decide which one can be put on the ehcp?

If the LA concedes before their response, it is classed as an unopposed appeal. The notification from the LA to SENDIST concludes the appeal, and the clock starts ticking for the LA to carry out the required actions. It follows a slightly different process to cases where the LA concedes after responding to the appeal.

Whereas, when LAs concede after the response, it needs to be via consent order. You and the LA complete the draft consent order and it is sent to SENDIST to sign off (or not). Technically, in theory, they can try to go back on their word up to when SENDIST issues the Order. However, in practice, they should not; if they try to, it can be raised with SENDIST.