Need help suspect son is in wrong school

[Fateofthecookies]

Hi there, first time posting here so sorry for any mistakes & will try to include as much as possible in this post.

My DS (12) has an EHCP & has recently moved up. He is not diagnosed with anything except developmental delay. He needs a bit of help reading/writing though he can do both it just takes him a while. he’s a bit forgetful & has anxiety. He’s never had any difficulties behaviour wise & as always been described as eager to learn, well behaved & polite & teachers have always been pleased with his maths (one called him a maths wizard - this is relevant )

There were NO schools in our area that would take him so he’s travelling out of town to a sen school. We’ve only been for a look around once & this was after we started. The main thing I noticed was most children seem to be intellectually or behaviourally challenged. DS is not though his brother is & is in a school exactly like this which is why I could see the difference. DS has struggled to make friends because of this.

Today he has come home & said the teacher asked him what’s 100 - 35 & ds has answered 65. The teacher said ‘no, but close’ he then had to guess again even though he knew that was the answer so he said 75 & then 85 & was told no but she never told him the answer.
Yesterday he told me that *Archie had hit him around the head with a pencil case & punched him in the side. Told him to stop messing around -DS was reading a paper. He then called him a ‘little bastard’ & a ‘shithead’ & was told by this child that he was going to slit his throat. He said the other kids around him sat there laughing & one of the TA’s (there’s 3 in his class & only small class) looked at him & said nothing. The teacher didn’t even look up. He doesn’t lie, I believe him.
& then last week he told me that someone sat next to him suddenly (no reason or warning) took his work & screwed it up. At first the teacher saw & didn’t do anything then as he was about to screw it into a ball he just calmly said ‘no *freddy no’ ds said he kept doing it but eventually he stopped. I then got a message after school from the teacher telling me that another boy had taken ds work & screwed it up but that she was proud of ds for not reacting (fair enough). One of the first things DS told me was how one child had sworn at the headteacher & the headteacher said nothing, ds was shocked by this as he used to bring in mainstream school & still plays out after with his friends. If I didn’t tell you what I’ve written here you wouldn’t know he has problems ifswim.

Sorry this is so long, last bit…
Has I said his last school was a mainstream school & it came as a shock when we were told that the school we’d chosen couldn’t take him because they couldn’t take someone at ‘primary level’ we’d never been told/led to believe at any time he’d be going to a specialist school. I feel there is something wrong with his EHCP or whatever paperwork they passed on for him to be here & for no one in our own town to be able to provide provision for him. But alarm bells started ringing today when the teacher told him the answer was wrong, why would she lie? Do they get money for him? They told us they would help us & if he was in the wrong school they’d know. But all he is doing is painting everyday, he says the work is too easy & I know he’s capable of so much more. He now feels the teachers are singling him out & when they asked a question in class today 3 children held there hands up -DS & 2 others & the other 2 children gave there answers & DS was ignored.

Sorry for long thread but don’t know how to sort this out, just feel let down & like I’ve let ds down

Lots of mainstream schools here really don’t want pupils with EHCPs & will say they can’t meet needs to avoid taking them. Many parents think an EHCP allows them to choose any school they want but it couldn’t be further from the truth.

Frownedupon there are limited reasons why the LA can refuse to name the parental preference unless it is wholly independent. The LA have to prove one of the following:

• 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 LA can, and must, name the parental preference if they can not prove one of the above (and the bar for doing so is relatively high) regardless of the school's objections and claims they can not meet the pupil's needs. To not do so is unlawful, and parents should be encouraged to appeal.

Put the maths to one side for the moment - someone, somewhere is confused, about what 100-35 is, or what your DS answered, or what the teacher said.

The remainder of your issues relate to the behaviour of the other kids, and whether this is being dealt with, and these are more significant. It would be interesting to know exactly the type of specialist provision he is accessing. There are many different types - is this school centred primarily around learning, diagnosed behavioural needs (eg some types of ASD contributing to behaviour), or learned behavioural issues (eg non-SEN exclusions). Or some combination?

If any part of the latter, then it is unfortunately the case that your child is going to be exposed to all manner of things over the next few years as children get older and hormones kick in. Each child will have their own EHCP to improve their behaviour, and it will be hard to unpick how the school dealt with the offensive behaviour. For a lot of these children, speaking to them later privately may be more effective than challenging on the spot (which can trigger an escalation, violent behaviour). Or - potentially - the school has so many of these children that things which are unacceptable have become normalised, which is not ok.

I'd start with the questions around the exact admissions criteria for the school (who else is going there?) and the extent to which the other children have similar needs to your DS. If he's in a school full of children with different needs/behaviours, then it is definitely not the right school for him.

Many secondaries find SEN notoriously difficult. They are not adequately funded to provide individual support, and a single teenager with the wrong combination of difficulties can disrupt an entire class's learning for five years. Sadly, this means a standard response to letters seeking EHCP admissions. The whole process is deeply confused by the fact that as part of an EHCP review, enquiries can be sent to several schools without the school even knowing whether the parents are actually interested in their school or whether this is a box-ticking exercise for the SEN paperwork. You need to push back in the EHCP review and state clearly what you want, contacting schools directly also. The parent support team which all LAs have may well be able to flag which schools have been successful with other children they are aware of.

Ultimately though - yes, it does feel as though your son is in the wrong school.

@FrownedUpon

Lots of mainstream schools here really don’t want pupils with EHCPs & will say they can’t meet needs to avoid taking them. Many parents think an EHCP allows them to choose any school they want but it couldn’t be further from the truth.

It's not an adequate reason in law. The only reason they can refuse to take a child with an EHCP is that having the child there is incompatible with efficient education of other pupils and there are no reasonable steps they can take to overcome the incompatibility.

@monstrousmayhem

Frownedupon there are limited reasons why the LA can refuse to name the parental preference unless it is wholly independent. The LA have to prove one of the following:

• 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 LA can, and must, name the parental preference if they can not prove one of the above (and the bar for doing so is relatively high) regardless of the school's objections and claims they can not meet the pupil's needs. To not do so is unlawful, and parents should be encouraged to appeal.

The only one of those reasons that apply where parents prefer a mainstream placement is the one about efficient use of resources, and even then the school would also have to show that the problem can't be sorted by taking reasonable steps, e.g. having extra support in school paid for under the EHCP. There is case law saying that the situation has to be pretty extreme for this exception to apply.

My soon to be 12 year old with an EHCP started mainstream reception, special school years 1-4 and has been mainstream since then. He wasn't speaking till he was 7, but when he started he told me he'd been punched and kicked every day by other kids so we got him moved. He's a soft lad, very gentle and he found the chaos and constant eruptions around him frightening. Since the last move to mainstream he's been okay and has a good set of friends. It depends on your child and the schools around you, his current secondary has an autism resource centre and they've been brilliant with his transition. It's worth exploring all your options and not discounting all mainstream.

Droite you are confusing the right to a mainstream education and the right to a specific mainstream school. They are not the same thing. The post of mine you quoted is accurate because I was replying to Frownedupon about parental preference of a specific school rather than a mainstream education.

As I said in my first post, parents have to right to a mainstream education. The only reason this can be refused is if it would be incompatible with the efficent education of others, and there are no reasonable steps that could overcome that. However, this is a right to a mainstream education, NOT a right to a particular mainstream school. The LA can refuse to name a specific mainstream school that is the parents' preferred school if they can prove one of the following:

• 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.

Although you are right case law demonstrates the bar is significantly higher than many think.

See an explanation of the right to a mainstream education but not a specific mainstream school here. And the three reasons a specific placement can be refused here, noting it mentions this applies to mainstream and special placements.

@monstrousmayhem, I didn't suggest there was a right to a particular mainstream school. But the law makes it clear that the starting point is parental preference, and that even if a mainstream school establishes one of the grounds you mention the council or the tribunal must move on to decide whether it has been proved that admitting the child would be incompatible with efficient education and that there are no reasonable steps the school and LA can take to overcome the incompatibility. That ultimately is the deciding factor and it applies equally in relation to specific schools or the LA decision as a whole.

In OP's case, the mainstream schools have relied on the suitability argument and the LA has accepted that as the last word, but it was wrong to do so. It should have gone on to give specific consideration to the efficiency argument, and ultimately that is the only ground on which a particular mainstream school can refuse a place. The wording of the statute makes that clear -

(2) In a case within section 39(5) or 40(2), the local authority must secure that the plan provides for the child or young person to be educated in a maintained nursery school, mainstream school or mainstream post-16 institution, unless that is incompatible with—
(a) the wishes of the child's parent or the young person, or
(b) the provision of efficient education for others.

(4) A local authority may rely on the exception in subsection (2)(b) in relation to a particular maintained nursery school, mainstream school or mainstream post-16 institution only if it shows that there are no reasonable steps that it or the governing body, proprietor or principal could take to prevent the incompatibility.

(5) The governing body, proprietor or principal of a maintained nursery school, mainstream school or mainstream post-16 institution may rely on the exception in subsection (2)(b) only if they show that there are no reasonable steps that they or the local authority could take to prevent the incompatibility.

What level was he working at in primary @Fateofthecookies ie expected, below expected etc?
I know parents who've been put off the local special school as they didn't feel it would be academic enough for their children. It seems odd from your description of his difficulties that no mainstream school would except him.

Droite you have misunderstood. Either that or you need to pass on your information to both IPSEA, as they need to amend the pages I linked to which confirm the LA can refuse any placement listed in section 38(3) CAFA 2014 for any of the reasons set out in section 39(4) CAFA 2014 and section 33 CAFA 2014 is "a right to a mainstream education but not necessarily a right to a particular mainstream school", and the barristers who have written this well known guide - pages 43/44 deal with a parental request for a particular mainstream school.

The law is clear Section 39(3) CAFA 2014 requires the LA to name the parental preference unless one of section 39(4) CAFA applies - i.e. unsuitable or incompatible with efficient education of others or use of resources. Section 33 only comes in to play after section 39, which is why a particular mainstream school that is deemed unsuitable under section 39(4) may still be deemed appropriate under section 39(5) because of the right to a mainstream education under section 33, but equally it may not be that specific school named as at that stage a parent doesn't have a right for a particular mainstream to be named only for it to be considered (see number 8 on page 43 of the noddy guide I linked to.)

As per my link (page 43/44), the tribunal will first consider if any of the disqualifiers in Section 39(4) CAFA 2014 apply. If the tribunal believe the parental preference is unsuitable or incompatible with efficient education of others or use of resources it will then consider the type of placement under section 33 CAFA 2014. They will name mainstream unless they believe a mainstream education is incompatible with the efficient education of others and there are no reasonable steps that could overcome it. At this point a particular mainstream placement will be identified if possible, but the parents don't have a right to a particular mainstream school to be named only for it to be considered.

Also see here - particularly relevant is the bottom of page 1, top of page 2 and part way down page 3. The bottom of page 1 and the top of pages 2 and 3 here and the bottom of page 1 and top of page 3 here.

@monstrousmayhem, you keep citing summaries of the law, none of them particularly up to date, rather than original sources. Certainly, section 33 does not guarantee a particular mainstream school; but it remains the case that it specifically states that an LA can only rely on the efficient education exception in relation to a particular mainstream school if it shows that there are no reasonable steps that it or the governing body, proprietor or principal could take to prevent the incompatibility. There is also a requirement to have regard to the general principle under s9 Education Act 1996 that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. There is nothing you have cited that says that those provisions don't apply.

An example often cited is that of a child who needs a hearing induction loop system to make a mainstream school viable: the parents want mainstream school A which would need the system to be installed but the LA names school B which is close by and already has one. What it has done is perfectly lawful because requiring school A to install a system would not be reasonable in those circumstances. However, if no school had the system and there are no other factors which would make it unreasonable for school A to install it, then the LA would have to meet parental preference and name school A.

I may not have quoted the CAFA, but I stated the sections so if you wanted you could look it up yourself.

"Section 39
(3) The local authority must secure that the EHC plan names the school or other institution specified in the request, unless subsection(4)applies.

(4) This subsection applies where—
(a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or
(b)the attendance of the child or young person at the requested school or other institution would be incompatible with—
(i)the provision of efficient education for others, or
(ii)the efficient use of resources.

(5) Where subsection(4)applies, the local authority must secure that the plan—
(a)names a school or other institution which the local authority thinks would be appropriate for the child or young person, or
(b)specifies the type of school or other institution which the local authority thinks would be appropriate for the child or young person."

Section 33(2) which you quoted specifically opens with "In a case within section 39(5) or 40(2)". i.e. where one of Section 39(4) applies. You may have dismissed it in one of my links, but IPSEA state this about section 33 "If a parent of a child, or young person, wants that child or young person to attend a mainstream setting, the LA can only refuse if a mainstream placement would be incompatible with the efficient education of others, and there are no reasonable steps the LA could take to avoid this (section 33 CAFA 2014). The degree or complexity of their needs or disabilities, and the suitability of mainstream, is not a reason in law for refusal of mainstream. This applies not just to attending a mainstream school or college but also to taking mainstream courses.
This is an important right. The LA cannot send a child or young person to a special school when it is not what parents or the young person wants. This is true even if the LA view is supported by professionals.
It is important to note, however, that this is a right to mainstream education but not necessarily a right to a particular mainstream school."

As I said if your interpretation is correct you best inform IPSEA, and the barristers who write the SEN guide, as well as Judge Jacobs who ruled on ME v London Borough of Southwark (SEN): [2017] UKUT 73 (AAC).

No doubt you will write this off as 'only' a summary again despite IPSEA and the SEN noddy guide being well respected sources, but this page shows relevant case law.

"Judge Jacobs was clear that the wording in SS.33 and 39 shows the s.39 should be considered first and s.33 only applied if the LA does not access to the parents' request for mainstream under a.39. Therefore, a school rejected under s.39 may still be appropriate under s.33.

Basically what I have been posting, albeit more succeintly.

And this extract is taken from ME v London Borough of Southwark (SEN): [2017] UKUT 73 (AAC) directly (which IPSEA link to if you wish to read):
^"Section 39

1. If the parents want their child to attend a specific school, whether mainstream or not, section 39 applies. The local authority must accede to their request unless one or both of two conditions are satisfied (section 39(3)). One is that the school is unsuitable (section 39(4)(a)). The other is that it would be incompatible with the efficient education of others or with the efficient use of resources (section 39(4)(b). If the local authority does not have to accede to the parents’ request, it must identify a school or type of school that is appropriate for the child (section 39(5)). The issue then has to be considered further under section 33."^

Just to reiterate this is not my interpretation of the law, but IPSEA and SEN barristers.

In the example of the hearing loop, as used in the SEN noddy guide, it explicitly states at that point there is no right to have a particular MS named, only to have it considered along with other schools put forward by the parent and LA with it already being shown one of the the disqualifiers in EA1996 s27 para 3(3) (which aligns with section 39(4) CAFA 2014) applies.

Anyway, we have somewhat detailed the OP's thread and since I have now provided links to well respected sources I won't be replying further as it isn't fair on the OP to detail her thread further.

*derailed

OP it sounds like you need an emergency EHCP review. A meeting with school first would be good but I would also contact your EHCP caseworker and speak to them about it.