Can a school refusing admission unless DS2 gets EHCP funding?

[FamilyLawAdvice]

basically the school my DS1 goes to called a meeting with the SENCO who turned around and said unless DS2 gets an EHCP they won't give him admission to the school.

He has a speech delay and the language of a 2 year old he's not autistic and his hearing is fine so it's just a delay from which they don't know.

The issue is they've said no school will accept him unless he gets it which they're not sure if he'll get it so im at a loss as to what we'd do with him

any advice?

I assume your child is 3-4 years old. Two things here. (1) you need to apply for a school place like as for any child (2) if you want his current school which is presumably out of catchment, you’ll need to hope you get in on distance or with ehcp. Either way do (1) or you’ll end up with no place at all. And apply for ehcp yourself using “Ipsea model letter 1” - google it.

We've applied for an EHCP they just don't think he'll get it, we're in catchment for the school & DS1 goes there. they've said though unless he gets an EHCP they wont admit him.

we've applied for more than one school ofc

What type of school is it? Academy, Free School, LA maintained, voluntary aided etc?

As you’ve said the EHCP most likely won’t be approved, the school have to show that they are spending a certain amount over a set period of time of your ds in order for the plan to be approved (or at least that was the case with my DS)

Tbh if I were in your situation I’d inform the school that I was reporting the comments they had made to the local authority and OFSTED.
Have a look at the schools website there should be an SEN policy, if it doesn’t say anywhere on there that they refuse to accept children with additional needs without an EHCP, then I’d highlight this isn’t in the schools policy, you believe they are acting in a discriminatory way and you’re left with no choice but to take it further. You might find they back down. But I would most definitely report this to the local authority even if they do.

I’ve had 3 schools try this on with my ds, the first I didn’t realise what rights he had and withdrew him at their request, with no warning, it was the day after his autism diagnosis nothing had changed in his behaviour at all.
The second time I withdrew him because the school got a new SENCO who kept pushing and pushing for him to go to a special needs school. She kept telling me they were worried he would ‘slow the other children down’
The school she wanted him swapping to was for children with severe developmental delays and brain injuries, however my child had been diagnosed as being gifted in mathematics and English by a paediatrician and the school she was suggesting told me it was completely the wrong school for him as they would be unable to meet his needs despite her pushing and pushing them to agree.
I didn’t want him at a school who made it clear they didn’t want him there so I removed him. I reported them to the local authority and incidentally (or not) OFSTED did a random check a few weeks later finding them as requiring improvements for SEN targets.
He’s now at a state school he loves, he has autism and speech delay and they’ve not even mentioned EHCP as his main issue is speech delay and they said they’re not too concerned about that. For context he has a vocal about 3 years younger than he is.

Oh I’m assuming state school op. What I’ve said will only apply in a state school I think.

If its a state school and the council allocate it, I'm. It sure they can refuse.

However if they're being like tbis do you want him there? Could you manage to drop off at two different schools?

You'll likely get priority given sibling relationship. EHCP should have been done waaaaaay before - ours came back last week and technically that was late- I ticked the box any way as I knew we'd got it.
Have they even started it?

I would phone your LEA SEND team and Sendiass for advice - I didn't think they were allowed to refuse though some schools do kick out / encourage to leave SEN kids and very little done about it.

What they told you is absolutely unprofessional and inappropriate and not true. He is very young still, with right support he could and would achieve a lot!
I would apply for a place and then contact SENDIASS, explain the situation to them and ask to accompany you to all future meetings. Try not to worry, it’s your catchment school and you have older sibling there already , you have really strong case. And EHCP could be done at later stage when school has done different assessments and gathered evidence. It’s not their private school, it’s a state school for local children which means for your DC as well.
And when they do comments like these , ask them to clarify “just to be sure that you understood correctly “ or put their refusal in writing.

Do they make the decision on admissions? Some C of E schools do this (Aided). However it’s illegal to discriminate on grounds of ability or disability. If the admissions are via the LA, they will not discriminate. Therefore apply as normal.

In the meantime, speak to LA admissions about what you have been told by the school. As he’s young, it’s early days for EHC funding and the school might well have to pursue this after he arrives. That’s their job and they cannot exclude a child who has every right to attend the school. You must report this.

IF this is an independent school they can do whatever they want provided they don't breach the Equality Act. However, if the school is is state funded they cannot make admitting a child dependent on EHCP funding. Any community, VA or VC school that did this would be breaking the law. Any academy or free school would be in breach of its funding agreement and probably also the Equality Act.

The school's funding includes some money to help with children who have SEN but don't qualify for an EHCP - this is called their "notional SEN budget". They are quite wrong to argue that they need additional funding for any child in this bracket. They are required to fund up to £6,000 worth of provision per child from their own budget.

Bluntly, any SENCO who says this is in the wrong job. I would report the SENCOs comments to the head teacher. I wouldn't go to the LA until you have exhausted the school's complaints process.

The child isn’t on roll yet so I’m not sure the school complaints process applies. You would need to look at the complaints procedure to check but the complaint would be about a child not on roll. This is admissions issue and I would look to the LA for guidance.

However, do speak to the Head if you haven’t done so already. Look at the admissions procedure too! This is, in effect, a legal document and cannot be varied because a child has SEND.

The child isn’t on roll yet so I’m not sure the school complaints process applies

It does. The school's complaints process applies for any matter related to the school's operation. It is not limited to matters relating to existing pupils.

If it's a state school, no they can't . An EHCP doesn't mean any extra finding anyway.
Our local authority is supposedly cracking down on schools who try this, although of course you may wish to consider whether that is a good school for your child when it displays that attitude

The Complaints procedures at state schools in my LA, if they do not do their own admissions, expressly excludes Admissions. So although they can take complaints on a whole range of issues, admissions is not one. However, discrimination and false information is different.

I wouldn't regard this as an admissions complaint. I would regard this as a complaint about the SENCO's comments. It would only be an admission complaint if the school actually rejected the application on these grounds.

If this is a state school then they have to abide by the admission criteria set and there is absolutely no question that they have to follow the agreed admission criteria.
Given that the meeting was called, knowing that you already have a child in the school, they must know that there is a fair chance that you will be offered a place at the school for DS2. As such I can only assume that what the SENCO said is not just them saying it but actually the school as a whole, not wanting your DS2 in the school and presumably your DS1.
That is disgraceful that they should be thinking along these lines, that only with EHC Plan will they admit, presumably to get the extra funding. It is also completely wrong also to say that no school will take Ds2 without an EHC Plan, all those "honest" schools will admit on the admission criteria order not be looking to offload any child they do not want.

So how would you advise the OP to complain, admission?

Not that easy. You could direct a complaint through the school complaints procedure which would have to be to the head teacher about the SENCo's comments. However if I am right that this attitude comes from the top of the school then you will probably get a very woolly general response and you will then have to direct a complaint to the governing board, the response of which might be equally useless.
As in fact nothing has happened yet over admission of a child you cannot complain about something that has not happened yet. Any such complaint would have to be to the Ombudsman.

I contacted the head teacher who tried as hard as she could to justify the SENCO's words before admitting it wasn't right, legal or the practice of the school. She tried to blame it on the SENCO being new.

She did state that their admissions policy has changed and for those who don't have an EHCP, but do have additional needs, they will look at their additional needs and whether they're compatible with other students already enrolled and the LA's resources as to whether they'd be admitted and if not they should find a different school thats better suited.

I did make it clear that the SENCO was very wrong and due to that I will be looking at other schools. To which she said "We're more than happy for DS1 to continue attending" who has no additional needs so will be moving him too

They really don't want to be bothered with the expenses and resource a SEN childcan take up. Not legal, moral or in my mind a nice school to work in but that it the case.

My school (I am Chair of Governors) seems to be the local schools go to place to send any child that other schools find challenging or who may affect their SATS results badly. We use data to explain our SATS results and have individual plans for all SEN children who make our school what it is and the other children more understanding that we are not all the same

I would hate for my child to go to such an non inclusive school and this is one reason that only looking at an outstanding ofsted report for a school is never a good idea

OK off my soap box

Good luck finding the best school for both of your children

I'm glad you're looking at other schools and I hope you find somewhere suitable for both your children.

Does the standard admissions process ask about SEN? I have only just done DS4's but I can't remember seeing this as part of the process. The likelihood is there will be children starting in reception who have additional needs that have not yet been identified. What will they do, turf them out?

You see, rather than play their agenda - which s not to have the trouble and expense of a child with SEN - I would make them do their duty properly.

I would apply there, assume that he will get in because he is in catchment with a sibling, and start convening meetings between the school, any pre-school setting he attends and yourself about how they are going to put a plan together to meet his needs, before he arrives. Ask for the Reception teacher and TA to be involved, as well as the SENCo and Head. Get absolutely everything in writing. If they say 'but he's not been admitted yet', say that it is because of the mistake that the inexperienced SENCo has already made (and the Head has admitted), you are sure that they will understand how careful you now want to be about the provision and support DS2 will get.

If you want to move / apply elsewhere AFTER the plan is in place, possibly after several meetings and maybe an Ed Psych assessment, that is of course fine. But - as someone who has worked in a school that plays by the rules and DOESN'T manage out SEN children illegally but subtly to 'somewhere that can meet their needs better' - I don't feel you should let them get away with it...

I don’t believe it’s legal to refuse admission due to SEN and non comparability with other children. Have you looked at the current admissions policy? It must be legal. Admissions must follow the published criteria. I think the Head is fobbing you off. I’m not clear if this is a Church Aided school. I would truly speak to the LA about admissions to this school if you are in catchment, it’s a LA school and you will have a sibling there. What they have told you isn’t legal. They cannot refuse on the grounds they have told you.

The Senco didn’t make a mistake. They are putting you off! Any Senco knows how a school admits because it’s their job to know how they will accommodate Sen children. I don’t see the point of having more meetings. Does the LA oversee admissions or the school?