To be awake and feeling tearful over SEND EHCP disaster

[InBitsandInTears]

This week I got a message to say LA proposes to name a mainstream secondary school for DS and attached is an EHCP that was finalised in November that I've never seen.

I don't know why I didn't get the notice. I was told there were delays because of a backlog. It's impossible to get through on the phone.

With hindsight I am blaming myself for not doing more or doing differently.

The EHCP is a complete mess. Mainstream is impossible.

DS would far rather be at home, I feel like just giving up.

It's a bit complicated. The LA name some random school (A) and call it suitable. You say A is not suitable and say you would accept B or C for example.

LA can insist their school A is suitable and name it in Section I.

You can appeal the situation (if they didn't actually send you the decision letter like they said several months ago, or you can tell the tribunal service there are reasons for late appeal). Appeals will sometimes be expedited in phase transfer, meaning you might get a hearing before September.

If you don't go down the appeal route and the LA really won't budge, I believe they can basically say 'school A is our offer, take it or leave it'. At that point you might legitimately feel "forced" into home education. You won't be legally obliged to send him to school A (because you could home educate, pay for private school or move), however there might not be any practical alternatives and so you are basically being held over a barrel. You could home educate temporarily and then call for an early annual review or reassessment of needs but it's a high risk strategy because there's a chance your child will be without a school place for quite a while.

Your LA might be sympathetic and provide alternative education while a suitable school can be found but not only is this unlikely (because they probably won't agree that School A is unsuitable and fund alt prov), the quality of alt prov is often highly variable.

If the LA hasn’t finalised the phase transfer EHCP, you really need to chase the LA to finalise the phase transfer EHCP ASAP. This is important in case you have to appeal. Alongside chasing the LA I would start to look for someone with capacity to write a pre-action letter. I would start looking now because it can take perseverance at the moment.

You don’t have to EHE.

You don’t have to force DS to attend a school he isn’t able to.

The LA has a duty to provide the provision detailed, specified and quantified in F of the EHCP (as per section 42 of the Children and Families Act 2014) and ensure DS receives a suitable (in the legal sense, not just your opinion) full-time education (as per section 19 of the Education Act 1996).

The naming of a school in I doesn’t mean you are obliged to send DS to the school. The naming of a school in section I doesn’t automatically register DS at the school. I wouldn’t personally, but if you decide not to appeal you are still free to EHE or make your own arrangements e.g. at an independent school.

With help I have boiled down the situation to this:

LA have proposed to name a school, I am still within the 15 days to respond.

I intend to respond within the deadline, object to the proposed school (with reasons) and request revisions of several sections of the defective EHCP.

If the LA finalise the EHCP naming a mainstream school and without curing the defects I will immediately appeal.

I do not intend to deregister and electively home educate. I do not have the funds to pay for private education.

A period of self directed learning at home , even an extended period, is preferable to a traumatic placement which risks a complete breakdown in learning and significant psychological and potentially physical damage.

I have now got access to good free advice and if necessary will pay for legal help.

This is difficult and exhausting. It is a system designed to promote conflict. It is a system which guarantees the resources of parents, teachers and the local authority are squandered on avoidable bureaucracy.

The draft/amendment notice shouldn’t include a placement or type of placement.

I do remember Arthur Dent.

I'm a teacher in secondary with a very high SEN tariff. I also have a severely disabled son who's now an adult.

Look, you can only do what you can do. Is it possible to maybe take this one day at a time? Not everyone in mainstream secondary is totally immune to the needs of the children they teach. I had three interactions with three different children today, one in Y11 going into their mocks, one in Y10 who can be a bit tricky and one in Y7 having a hard time. I'm not a specialist teacher or anything, but I'm also a pretty reasonable human being. Y10 kiddo was thrilled when I said I'd be phoning mum cos he smashed it.

You might be able to work with the SENDCo. You might find that there's a bunch of teachers in there who can meet your child's needs and who will take the time to at least try to. OK, things might go sideways, and you might have to think about different strategies, but we only really read / see the horror stories in the media ... We don't get to hear about the dozens and dozens of kids who thrive at school when no one dared think it was possible.

And even if it does all go wrong, you'll have the backing of the SENDCo and teachers to try and sort it.

It is difficult and exhausting @InBitsandInTears, you can do it and it is worth the fight.

We went through this process last year after the LA named a ERF in mainstream which was completely unsuitable for DS's level of support needs and academic ability. We had to pay for a private educational psychologist report and then challenge the LA at Tribunal, but we were successful and DS is now at a special school, it was tight but we managed to get it done so he could start in September. He is settling well, happy and starting to make some friends after years of being alone and unhappy in mainstream primary.

You will get lots of good advice on this thread if you head over there.

www.mumsnet.com/talk/special_educational_needs/5309128-ehcp-support-thread-no-5?page=39

A draft EHCP naming a secondary setting should be coming your way soon (I think your child is current Year 6). As this will be a draft EHCP, you will be able to reply to the draft with all of the comments you wish to make about the entire plan. There is still hope that you can get the right support. There will also be an annual review in Year 6 and again your views can be put forward then.

You sound like a lovely teacher and I'm sure you do a lot every day to help all your students feel valued and encouraged.

Unfortunately DS really couldn't manage mainstream secondary.

This. Section I should be blank, because the draft is used to send out to schools for consultation.

I don’t know the best answer OP to what should you do about sending your child if they don’t name an appropriate school. It’s infuriating that they expect parents to re traumatise our kids with these repeated inappropriate placements.

I’m not a lawyer and you need proper advice but I would be tempted to ask your GP now for a letter saying that any further inappropriate school placements would have an extremely bad effect on your child. Share that with your LA. Share it with the school if they continue to tell you and the LA that they could meet your child’s needs. Keep putting the ball back in their court.

My username for this thread isn't accurate now but SleepDeprivedbutDetermined would be.

Sendiass and SOS!SEN have both given me very helpful advice.

The more I dug into it the more problems emerged. Its hard to describe the mess in a few words. I think its a bit like when my car died last autumn after multiple expensive repairs. There is no point trying to diagnose or fix individual issues.

So I don't plan to pursue anything with DS's current school and Senco I am concentrating on the LA.

I will reply to the proposal of a local mainstream school within the 15 day deadline but I don't expect any acknowledgement or engagement as my requests for information and discussion have been ignored.

I have accepted that I might have to seek judicial review so I'm going to need to find out more about what that means.

So essentially this is what has happened I got what reads like an automated/AI 'notice' saying LA will name the mainstream, it appears my message objecting (with reasons like clinical psychologist says specialist needed) hasn't been read as the notice isn't in reply to my objection. I think Judicial Review might be necessary, not that I fully understand what that means. I have asked Sossen for help.

It feels as if this is the end of school for DS.

(typo edited)

Telephone them or email directly again. They can’t just ignore you (you have a trail if you email and did need to go to tribunal).

JR would be for if the LA has failed to finalise the amended phase transfer EHCP.

If the LA has finalised but named MS, the route to challenge that is via appeal to SENDIST rather than JR.

Which is why it is important you know whether you have the finalised EHCP or not.

The notice said it would be finalised on Tuesday 3rd. Also that I couldn't appeal the EHCP itself just the placement (if I have understood the message correctly)

However
There was an offer to discuss proposed school but no means to do so, no response to messages.
I didn't see the finalised EHCP at the point I could correct errors.
The Feb 15th deadline was missed
No response to requests for sight of school consultations
My first preference (acknowledged by email) is not in paperwork.
So there are a lot of issues.

Unfortunately this whole situation has made me understand why they think specialist not suitable although I still think my first choice could be. Mainstream is not remotely manageable.

Thank you for sticking with me.

Hopefully Sossen will be able to advise a way forward.

There's lots of useful information about judicial review on SOS SEN's website. However, one of the main limitations to judicial review is that you cannot use it if there is an alternative remedy available, and if you have a dispute about the school placement then you do have a remedy via the tribunal. In addition, you will have a right to an expedited appeal hearing, so it sounds very much as if that would be preferable anyway.

You need to think about evidence that your son won't cope in the mainstream. Would his current teachers agree and produce reports saying so? Can you get an independent Educational Psychology report? If you can't afford it, you might be able to get one help from Parents in Need.

If you don’t yet have the finalised EHCP, you don’t yet have the right of appeal to appeal the secondary phase transfer EHCP via SENDIST.

Tomorrow, you need to chase the LA. Don’t rely on the LA sticking to their word that they will finalise on the 3rd. If the LA then continue to delay, you need a pre-action letter. Then, if that fails, you can look at JR proceedings themselves to get the EHCP finalised.

Once you have the finalised EHCP, you can appeal the EHCP via SENDIST. That includes the content of sections B&F and the placement in I. (Also C, D, G, H if you want. And although you can’t directly appeal section E, you can ask for consequential amendments to E if necessary.) Don’t believe everything the LA tells you. They will tell you what they want you to know and their version of the law.

The draft/amendment notice/notice of amendment/whatever the LA wants to call it should not have had a placement or type of placement named. Section I must be blank on drafts. The LA must give you at least 15 days to comment on the draft and state your preferred placement.

It will really help you to read IPSEA and SOSSEN’s websites going forward so you know what should happen.

Sometimes LAs won’t give consultation responses when parents ask and parents are forced to submit SARs.

There's already a private clinical psychologist report from 2024 specifically discussing phase transfer (amongst other things).

@PoppySaidYesIKnow no response to egress messages, phone number only takes messages, no response.

An EP assessment will generally be more helpful than a CP report if you have to appeal.

Op you are getting brilliant advice here. It is awful. You need that finalised EHCP so you can go to tribunal. And ask for expedited because its phase transfer.

@ExistingonCoffee can I pick your brains a bit re eotas and supervision? We are getting 2 to 1 at home snd LA are still saying I must be present. We have tribunal in 2 weeks snd fiddling with wording to get any adults required for supervision/safeguarding/risk assessment to be included in section F.

The LA solicitor is saying that it doesn't need to be specified because that is the legal position... yet the LA is saying i stol need to supervise and despite going through formal complaints process the outcome from Independent Officer was the LA done know the legal position so they need to research and check their policies align.... with legislative duties... they are now saying they have no blanket policy but my childs risk assessment means he needs me there. Its nonsense.

Yes he needs 2:1 in community and for it to be safe at home it needs 2:1 for safeguarding. But the latest risk assessment is saying even with 2:1 that mum must be present. I am tearing my hair out and at this point I think its actually harmful for his development.

The irony of course is we are now in CIN after I have fought for social care support as am a lone parent (prohibited steps, child arrangement order in place re dad) the LA risk assessment states 2 to 1 but CWD are social services are saying no respite other than 2 hrs of PA support a week. I have no family nearby, no friends who can help and 2 teenagers who also have needs.

The SS report states parentncarer burnout and emotional exhaustion. There has been harm to siblings etc. But yet they wont help. I seem them the latest risk assessment friday so hoping that will help.

But in meantime time am hoping if I can get wording I section F tight enough that will help as then I can go to judicial review. I can also take the complaint to LGO bit with tribunal so close I think try that first.

They have conceded section B amd they offered eotis and conceded section I. Its just getting F and the sticking points are swimming recommended very specific wording E must have swimming lessons in a sensory friendly pool once a week with Nd experinced staff to meet propreoceptive and vestibular sensory nèds and keys tage 2 curroculum requimenent, by the OT.

And the supervision we have specified hours 18 of tuition pace technique, pda trained, tourettrs trained all specified etc. But its me wanting staffing rationale supervision detailed.

I have relevant law, legislation case law re extra specification being needed for eotis. Plus send code of practice etc. Am hoping my arguments are sound. But I want to get my wording right.

Sorry op its just have seen how experienced Strongcoffee is.

@Madthings such wording can be included in F. However, the solicitor is right in a sense; even if it isn’t explicitly stated in F, it must still be provided. That is because the starting point under section 42 of the Children and Families Act 2014 is that the LA cannot compel parents to deliver or facilitate the SEP in F or a suitable full-time education under section 19 of the Education Act 1996.

If DS needs 3:1 (or a higher ratio) in order for the provision not to rely on you, then that must be provided. I would continue to pursue getting the provision in F, but don’t be too hung up on it if SENDIST doesn’t agree because you will still be protected under the above legislation and JR would still be an option. Unfortunately, some have to go down the pre-action letter/JR route.

Do you want the provision to be made at home (albeit without relying on you)? The LA cannot force you to accept provision at home.

Is your appeal an extended appeal?

The LGO won’t consider anything related to the appeal.

At the very least, the swimming provision needs a minimum length of session stating. Do you also have things other than tuition?

Yes the hilarious the solicitor is right yet county themselves are saying they dint know what law is... they are hoping I give up.

I really dont think he does need 3 to 1 but the provider he has under what must technically be section 19 at the moment? Though I never requested it, last April they offered eotis, as no school can meet need. I agree. And his profile of needs means it has to be in the home. Last week for first time since provision started last sept, we hot him out, 2 staff and me.. its took 2 and half hours and we were out for 10 minutes.

So in line with EP report provision is being built up slowly. Currentky he has 9 hours in 3 3 hr sessions with one provider and we do have another provider thd LA are funding but it fell apart.. and I think we will need to find another. Again 2 to 1 in home. The idea with both is that as capacity allows they can also take him out in community.

Section F is pretty good in terms of staff training, ie must be pda teained, all learnibg pace tecjnique, tourwttes training, forest school and outdoor learning following his intetests for 6 hours. Plus 18 hours tuition in home and community.

They dont want swimming. It is specified an hour per week. The OT also specified time to support with a sensory passport that is reviewed termly as he has profound and complex sensory needs. That is in section F. So is a communication passport. 6 weekly mdt meetings and fortnightly support for the staff working with him from EP.

Basically I have got everything in there feom EP report.

All learning is led by child, there is also one weekly small group session where he will have 2 to 1 support with a small group of peers up to 6 children (including him) maximum.

It also specifies about declarative language, communication. Etc.

I didnt apply for social care to be included, because we weren't at that point at the time.

Originally tribunal was meant to be last Sept, cancelled 2 days before because they didnt submit WD or any paperwork. They havent submitted any evidence to dispute anything I am asking for.

I am basically pushing to get F as specific as I can. And they did last week send me the WD back having had it since last aug. And had conceded lots apart from swimming and specifying the adult ratio.

But they are providing 18 hours, even if he is only accessing 9 currently. On a 2 to 1 basis. But still saying I must supervise.
.

I have quoted all you have said re legislation, plus public sector Equalities Act, and sencop etc. Relevant bits, that was part of my complaint to the LA that went to stage 2 along with social care failings. The independent officer upheld all of my complaint re social care, but said she couldn't uphold or not the bit re me being made to supervise education being illegal as the LA had no clear legal guidance. She did recommended they sought immediate advice and included me in that... that was 3 months ago. She also recommended an urgent review of their policies re Childten with disabilities and training for staff as not one member of staff interviewed could say what the criteria was to qualify for CWD support. Despite them regularly telling parents they dont qualify and there was no written evidence as to why we didnt qualify... spoiler alert we do. I think I need to escalate that to LGO as they haven't followed any of Independent officers recommendations. All involved reporting back to me, tumbleweed there despite involving my MP and Director for Childrens services. But I dont think the LGO will determine on the supervision being illegal? Correct even though that was part of my complaint. I am leaving it till after tribunal.

I think I will end up going to judicial review just over supervision. Happy to let you see the latest word soup they have sent re supervision and how there is no clear guidance.. its just nonsense

So if after tribunal even without the wording in F I can still go to judicial review?

Re the supervision. It effectively means I cant work, irony being i work for the LA in complex needs school. On unpaid parental leave currently.

Plus I do think it is harmful in terms of independence etc.

Also where could I go to get support re pre action letter amd judicial review? I cant afford to pay. Totally on my own with this.

@Madthings sadly, many have to threaten JR and go down the pre-action letter route. LAs know the law. They just routinely break it. Why wouldn’t they. It saves them money in the short term and there are not serious repercussions for them.

So if after tribunal even without the wording in F I can still go to judicial review?

Yes, you would be able to because the LA is responsible for ensuring the provision in F is provided and that cannot rely on you. Having it in F can mean it is more straightforward, but it not being in F doesn’t prevent you going down this route.

Feel free to PM their response if you want to.

JR proceedings themselves would be in DS’s name, so he can be eligible for legal aid in his own right. That wouldn’t include the pre-action letter. That is in your name, so legal aid is only possible if you yourself are eligible for legal aid. Check if you are. If you aren’t and can’t afford the price firms are charging, SOSSEN have a waiting list but are cheaper.

If you aren’t getting anywhere with social care, rather than the LGO, you might want someone to look over the paperwork to see if JR is possible about that. I suspect it is, but you really need someone to have eyes on the paperwork to say for certain.

@IdentityCris you said

"The draft/amendment notice/notice of amendment/whatever the LA wants to call it should not have had a placement or type of placement named. Section I must be blank on drafts. The LA must give you at least 15 days to comment on the draft and state your preferred placement."

The EHCP is the one which says finalised in November but I didn't see it until 10 days ago. Section I has the current placement. As far as I can see Key Stage 2 has been changed to Key Stage 3 at various points.

Can anyone tell me how to find a private EP? The CP was very thorough with specific educational recommendations in his report.