stop DS from going to mainstream school despite EHCP refusal

[number46]

Sorry long story. EHCNA refused after a 5 week evaluation from LA
Current school is driving him nuts. We hoped that with an EHCP he could get a place in a specialist ASC school, or EOTAS. That won't happen any time soon at this rate. We're appealing but I fear for his life/education/self esteem if he stays longer in current school. Appeal/tribunal likely to take months, maybe a whole year?

What happens if he just stops going in?
I don't want to opt for EHE which would mean we're on our own. He needs specialist support for his SEND. Current school won't offer any home tuition.

If he stops going in after 15 days we start getting fines right? Will he be automatically de-registered? If so then what? Social workers and maybe a prison sentence?

The LA does have some tutors for home schooling but I've got no idea how to access them. Will going rogue and keeping DS off school accelerate useful response from LA?

OP we are in a very similar position.

My son is attending for 2 lessons a day, currently we are in the EHCP fight.

School outright said - don't stop him attending altogether because we will lose out on all the help we could get. Which is next to fuck all at this point.

Agree a part time timetable.

Our son is in Yr7, his school is absolutely awful.

If school is making him suicidal you tell them he can't attend due to unmet send issues causing severe MH difficulties.

The LA become responsible for providing suitable full time education after 15 days. They will likely fob you off so a pre action letter for judicial review may be required to get tutors etc in place.

If they fine just refuse to pay. You can evidence you are doing all you can as he is under CAMHS and you've applied for an EHC needs assessment. Definitely appeal that refusal btw. 100% of parents in my county win.

Don't take this refusal as a sign that your DS doesn't need an EHCP. There is so much subjectivity.

If the school could do what the EP suggested, then they would have done. The fact that they haven't is in itself an indication of the need for an assessment. That's the argument we used for DD2. (Whether or not you think that they 'could' is irrelevant - they haven't).

We went from point blank refusal on the school's part to even refer for an EHCNA, to an independent specialist school and deceleration by one year, so don't lose hope.

It's worth putting in a Subject Access Request for your DS. I used all of the information I got about my DD to strengthen my case. Internal emails, absence data, etc.

My experience of this as a teacher who's previously been involved in this sort of situation is that you NEED a professional to say he is unable to attend school, or alternative provision won't be sorted. Otherwise, the LA will say the school needs to work to meet needs and come up with a plan to re-integrate etc.

I know OP's son is attending CAMHS, but that alone wouldn't be significant evidence for the LA I was in- they will only step in once a medical professional has said school is unsuitable right now.

My understanding is that getting an ECHP to name a special school is quite difficult. Have you been able to identify a suitable special school in the local area- and does it have a space for him?

Is there any other state school in the area which you could try? Maybe a smaller one with a more nurturing ethos?

Obviously do appeal the ECHP, a medical professional saying he is unable to attend school would also help with this.

At his next CAMHS appointment, I would suggest you explain the situation with school/mental health and ask if they will sign him off for a period.

That is your LA’s unlawful policy. Their duty to provide education to those unable to attend school full time is non-delegable and they should not be waiting for medical evidence before providing it. Parents can challenge your LA.

The provision should begin once it becomes clear 15 days will be missed. The 15 days don’t even have to have already been missed or consecutive.

You should email your LA’s Director of Children’s Services informing them of the situation and requesting provision under s.19 of the Education Act 1996. If that doesn’t work email again threatening judicial review. Then if that fails contact SOSSEN for help with a pre-action letter.

Can you provide the specific bit of law which says they have to provide it without medical evidence? It would be very useful.

My DS was struggling massively in year 8. I had an appeal for placement lodged for the second half of autumn term year 9. I told the SENCO it would be cruel to send DS back after the summer holiday, her suggestion was not to deregister but to call in sick due to anxiety everyday.

s.19 of the Education Act 1996 is the legislation that covers the LA’s duty. It states “Each [F2local authority] [F3in England] shall make arrangements for the provision of suitable F4. . . education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.”

The gov statutory guidance for providing education for those unable to attend school states if medical evidence is not quickly available LAs should “…consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child.”

The LGO are of the opinion LAs must consider all available evidence and that there will sometimes be conflicting, little or no evidence and sometimes all the evidence the LA wants will be unavailable. They are also clear a lack of medical evidence does not necessarily mean the LA does not have a duty to provide provision so your LA should not have a blanket policy of only providing provision “once a medical professional has said school is unsuitable right now.” There are several LGO cases and reports on this.

A friend of mine videoed DC school refusing in the mornings, and used it as evidence for the tribunal appeal for a specialist school.

Even the LA officer admitted afterwards, they were never going to win that one.

@FloatingBean there have also been many local government and social care ombudsman decisions stating medical evidence is not needed and LAs should consider ALL evidence put before them. Presumably because LAs prefer to ignore this and push for medical evidence/fit notes. I've had two decisions upheld by the LGO for exactly this failure by my LA.

Sorry just realised I tagged the wrong person. You and I are on the same page floating bean!

@Postapocalypticcowgirl

But looking at the wider context of the statutory guidance you have quoted, it says:

12. Where they have identified that alternative provision is required, LAs should ensure that
it is arranged as quickly as possible and that it appropriately meets the needs of the child. In
order to better understand the needs of the child, and therefore choose the most appropriate
provision, LAs should work closely with medical professionals and the child’s family, and
consider the medical evidence. LAs should make every effort to minimise the disruption to a
child’s education. For example, where specific medical evidence, such as that provided by a
medical consultant, is not quickly available, LAs should consider liaising with other medical
professionals, such as the child’s GP, and consider looking at other evidence to ensure
minimal delay in arranging appropriate provision for the child.

This clearly implies that in most cases, some kind of contact from a medical professional is expected.

I do think it will be far quicker for OP to get e.g. her child's GP or CAMHS to say that the child is not well enough for school than to try and mount a legal challenge.

If the child is in crisis, it is very normal for CAMHS to say that school isn't safe right now...

Many GPs defer to CAMHS, who have massive waiting lists and blunt triaging (Just checking if Jimmy is suicidal because the waiting list isn't moving....?). DD2's GP said that he wasn't qualified to deem her unfit for school, even though school had specifically asked me to take her to the GP to get signed off of school attendance. Fortunately, one of the teachers at school could see that she simply couldn't attend, so assisted me.

This clearly implies that in most cases, some kind of contact from a medical professional is expected.

No, that isn’t the case. Many cases may have medical evidence/contact, but the law does not state the LA do not have a duty unless there is medical evidence so your LA cannot lawfully have a blanket policy of only providing s.19 provision “once a medical professional has said school is unsuitable right now.” ‘Other evidence’ does not necessary have to mean medical evidence either.

There are several LGO reports and upheld decisions confirming this. For example, this LGO decision states “The Courts have found that councils are entitled to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. But the law does not say alternative provision will only be given where there is medical evidence.”

And this LGO report (pg9/10) criticised a LA for stating they did not have a responsibly to provide education because there was no medical evidence as that shows “a lack of understanding of the relevant legislation”. “Firstly, a lack of medical evidence should not stop a child from accessing education; nor does it negate the Council’s duty to provide the child with a suitable education.” And “Even without medical evidence, the Council had a duty to arrange suitable alternative education provision for Y under the category of ‘otherwise’. “

There are other LGO complaints that have been upheld where the LA refused to provide s.19 provision because of a lack of medical evidence and other LGO reports too. If you wish to read them you will be able to find them on the LGO’s website.

I do think it will be far quicker for OP to get e.g. her child's GP or CAMHS to say that the child is not well enough for school than to try and mount a legal challenge.

It isn’t uncommon for it not to be. I have helped hundreds of parents and for many getting explicit medical evidence takes time (sometimes months even if the child is in crisis) or is sometimes not possible at all. Whereas, sometimes the mere threat of JR to the Director of Children’s Services results in provision being provided and if that doesn’t a pre action letter usually does, very few actually get to a hearing.

Actually page 10 and 11

No advice. But my 10 year old son who has adhd hasn’t been to school since December. No fines here. Not boasting as believe me it’s not what I want for him but I don’t want to go into loads of detail about the ins and outs as it’s your thread, but just wanted to say that really.

Special Needs Jungle has this article today

https://www.specialneedsjungle.com/mental-health-prevents-school-attendance-guidance-summary/

@Quisquam thanks for posting that

@Daisydu has your LA not been in touch?