Can LA change named provision after final ehcp has been issued?

[EHCP999]

Have posted this in education but had no replies and worried sick.

Final ehcp naming a provision issued weeks ago. Since then we had some concerns about it and asked for another setting to be consulted. This setting has said they can meet need. LA now saying it needs to go back to panel, but having visited both settings we wish to proceed with the named provision. Where do we stand?

Its a while since I was in this position but if I remember correctly once the final ehcp has been issued the placement can't be changed until the next annual review unless the placement has broken down and an emergency review is called.

If it was issued and you'd agreed the original placement it makes it harder.

That's because if you did t agree you could have refused to finalise and go to tribunal.

You can ask the LA to consider the change of placement and outline the reasons this placement is better.

If they refuse you can call an early review but that'll be hard to prove it's needed because there isn't an emergency placement failure.

Your best bet is to do a costs review yourself (iosea etc have templates).

If you can prove your placement is negliable difference, equal or even less you'll find it easier.

It'll be harder to prove it's better unless it has something there already in place that'll need to be bought in in the placement already named.

The LA only has responsibility to provide somewhere that meets need legally - that's where it's the same as MS settings and their responsibility is to provide a placement.

Good luck. My ds left college this year and I'm not going to miss all the EHCP nightmares!

@itsgettingweird thank you. We don't wish to change the provision though, that's the point! We did have a wobble and ask for a different setting to be consulted but we wish to stick to the provision named on the ehcp!

If they want to the LA can amend the EHCP at anytime without a review or reassessment (section 28 SEN regs 2014), but if you want them to amend you would need to ask for an early review. Unfortunately, if the LA refuse an AR it doesn’t come with the right of appeal, so you would have to wait until the AR or ask for a reassessment of needs which does come with the right of appeal if refused.

X post. If the LA do decide to amend without a review or reassessment they must follow the same rules e.g. allowing you to make representations, give the right of appeal etc. as if they amended it post AR. The AR then needs to be within 12 months of the original EHCP, not the new amended version.

So the LA can say my child can no longer start at the school named on his ehcp? Even though its the final ehcp and we are happy with it? 😭

But if the current placement can provide the provision then they have met their legal duty.

What you need to do is prove your setting is better and let them go to panel.

The best way to do that is through providing costings.

You can go to appeal - but unless your placement names doesn't provide what's in section F it's very hard to win.

It's like when people appeal MS based on preference.

The LA could amend the EHCP if they so wish yes. They would have to allow you to make representations and name your preferred placement as they would have to following an AR. If the LA amend without a reasonable reason and refuse to name your preference for any other reason than one of the lawful exceptions and you appeal SENDIST is likely to take a dim view. But that doesn’t mean the LA won’t force you to appeal.

So the LA can say my child can no longer start at the school named on his ehcp? Even though its the final ehcp and we are happy with it?

Technically but they have to provide a placement that can meet need so they'd offer elsewhere.

They can't withdraw an education suitable to the child's aptitudes and abilities.

Have you downloaded the SEN COP - it's always worth having to hand.

Unless your preferred placement is wholly independent the LA can only refuse to name your preference if they can prove:
-The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) 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.

The bar to prove the above is higher than many think.

This is awful news. He's meant to be starting his new school (the one named on his ehcp) in September. He's had a transition day this week and is due another next week. The next panel is at the end of the month, so now we're in limbo. We don't want to send him to the recently consulted school, so will he just be home now until we can go to tribunal? The earliest it would be heard is November! This is an absolute nightmare

@LargeLegoHaul the named provision is an independent school. The one recently consulted is an out of Borough state school, so considerably cheaper. They would definitely argue it was incompatible with efficient use of resources

Is the independent school wholly independent or a section 41 independent? If it is a s.41 independent the above applies. If it is wholly independent you can ask for it but don’t have the same rights and you need to prove the LA’s proposed school’s can’t meet needs &/or it is not unreasonable public expenditure.

Not to scare you but there is absolutely no chance of an appeal being held in November, appeals lodged now are receiving hearing dates in Jan/Feb.

Ignore the very poor grammar.

@LargeLegoHaul it is a s41 school but they will definitely go with the efficient use of funds argument. Fuck.

In which case you need to start collating evidence of why the recently consulted school can’t meet DC’s needs. Also look at costs more carefully e.g. transport.

There's no rush is there if we're looking at next year for tribunal.

Thanks for your replies, even if they're not what I wanted to hear.

Looking for reasons now may be beneficial if you think you can potentially persuade the LA the school actually can’t meet DS’s needs and to not amend.

The other thing is if you think you will need independent reports for a Tribunal you need to start looking for professionals now as they have long waiting lists at the moment.

What do you think the chances are of persuading the LA? As in my area at least saving money is the top priority so I'm not feeling too hopeful

Is the ehcp specified in section F?

As in dies it state qualifications if the people delivering the inputs and how long for to meet the outcomes?

If so you need to check the other school can do this. I'm assuming they can't which is why you decided not to proceed with the other placement?

You need to evidence all this factually.

Eg

Section F states. School named does this. Consulted school cannot offer .....

Whether you can persuade the LA depends on your LA, how strong your evidence and luck, but it is worth trying.

If they have already gone to panel, already named the school, it's agreed.

Yes you had a wobble and asked them to consult with another school. But this one won't yet have gone before panel. Your co-ordinator knows you wanted a change, the commissioning department knows you wanted a change. They both will know you have a place at the newer school. But, it's not gone back to panel.

Have you called your LA co-ordinator?

It's likely that if you say you want the original school the consultation process will just stop.

Speak to your co-ordinator and follow up in an email. Always have a paper trail.

I'm my experience (sadly quite a lot) once panel agrees that funding is agreed it's then specified for your child. It has to go back to panel for any further changes outside what has been specified.

I personally think you'll be ok, but you must get this in an email quickly and stop it going before panel. It's your co-ordinator that presents it at panel.

@toooldtocarewhoknows yes I've emailed several times. She claims she has to take it back to panel because the named school is a lot more expensive and as a cheaper placement has said they can meet need they need to go to panel to ensure they are making the best use of public funds. I'm absolutely kicking myself, I shouldn't have panicked and asked for the consultation 😭

You poor thing. I really feel for you.

You'll need professional backing, do you have professionals involved with your child that can help back you?

You need to get the new finalised EHC plan stating the later school and then appeal it.

But you need evidence as to why your preferred school can meet need as opposed to the (newer) school that say they can also meet need.

Thank you. Yes I have professional backing I'm just panicking about how long we'll have to wait for tribunal and what we're meant to do in the meantime. It's so cruel, he's started his transition fgs. It all feels hopeless. He's already missed 2.5 terms of this academic year and now he'll miss God knows how much of next. Might as well just send him to youth offenders now and have done with it