HELP - Secondary School Admissions Appeal - SEN

[Nna2004]

We have applied for secondary schools for DS1 ( Who has an EHC Plan) and been offered our third choice. Does anyone know the appeal process for SEN as having called the school I have been informed that the appeal process is different for this kind of case and I am not getting any joy from our LA SEN Advisers - we are totally in limbo as EHCP is not completed yet - we have pleaded for them to name our preference in the EHCP but they are digging their heels in.

Our concerns are;

What is the implication of them sending us a final draft EHCP with no named school? This is what we have been threatened with.

Should we take the third choice while going through the appeal- and If we do and the third choice is named - can this be amended should our appeal be successful.

Do we have any leg to stand on as they named one of our choices?

Anxiously waiting for response.

Thank you.

Oh my goodness OP, that sounds very very stressful. In short I am not sure if the answer to your question. Do you have limited time in which to accept the offered place while you were wait for the EHCP to be finalised?

It might be worth contacting an independent parent support organisation who can advise you. An organisation called Parent Partnership used to do this and still mostly exist but sometimes under different names. If you google "parent partnership" followed by your county you should get an idea of who to call.

Once the EHCP is completed send it to the school your child has been offered....they might say "no we can't meet his needs" in which case you can go back to the LEA with a request to look at other schools.

Contact the school you want your DS to attend and ask to go on the waiting list...there can be a lot of movement between now and September.

Am hoping one of the admission experts will be along with their more in depth knowledge.

My son had his EHCP in place and as such he got the school I named at that time. I am hoping in the final draft of your plan they will name the school you asked for.

Has he already got a finalised EHCP and just waiting for the one with his secondary school named or will this be his first one?

Have a look at this link, if he already has an EHCP the LA are legally obliged to name a secondary school in it by 15th Feb. I would contact SOSSEN for help.

www.facebook.com/SOSSpecialEducationalNeeds/posts/955413537928297

Contact www.ipsea.org.uk/ipsea asap

The only reasons that the LA can reject a parent or young person’s request for a particualr school are.
1.the school or other institution is unsuitable for the age, ability, aptitude or special educational needs of the child or young person;
2.the attendance of the child or young person would be incompatible with the provision of efficient education for others;
3.the attendance of the child or young person would be incompatible with the efficient use of resources.

Read these factsheets parental preference with EHC Plans
and misconceptions on naming a school

Thank you all for all your responses. This is his first EHC plan though had a statement before which is now being converted.

We are yet to be given a reason for the school refusing to place him. We had a generic reason that his needs are beyond what they could meet- don't know what that means

I have been informed that the appeal process is different for this kind of case

I think two kinds of appeal are being confused here.

Without an EHCP you can appeal in the normal way, just the same as anyone else who didn't get a place.

There is a separate appeal process if the LA refuses to name your preferred school in the EHCP. If they send the EHCP without naming a school that helps you a little in that you don't have to consider mediation - you can appeal immediately to the SEND tribunal. They should hear your appeal within 12 weeks. As eatyourveg says, the LA will have to show that this is the wrong school for your child. That is different from a normal appeal where you have to show it is the right school.

I would recommend accepting the place you have been offered so that you have a definite place. If the third choice school is named on your EHCP that should be amended if your appeal is successful. Note, however, that if the LA name your third choice school you are required to consider mediation before going to the SEND tribunal. Mediation is not compulsory but it must be considered. It will not, however, affect the case if it goes to tribunal. It will still be up to the LA to justify their refusal to name your preferred school.

Yes, you do have a leg to stand on. But in your situation it is important to find out why there is resistance to naming your preferred school. It may be that this school wouldn't be the right place for your child. I would be hesitant about sending a child with SEN to a school that actively resists admitting SEN children.

Thank you prhbrigde.

The school has children with similar needs and have admitted 3with EHC plans already for this cohort. We choosed this school after speaking to the SenCo severally and being reassured that the school is able to meet my DS1's needs.

We are absolutely furious that they have turned around and say no to a placement.

Thank you everyone. I will make contact with these organisations tomorrow.

Phew! Glad someone knowledgeable came along...I knew they would.

I think you need to speak to IPSEA here for some support. The EHCP conversion from a statement should have been completed with a named school by mid February in a transfer to secondary school year. Your local authority have already broken the code of conduct by not adhering to these dates. They need to have a good reason not to name your preferred school on the EHCP and the school can only refuse the placement if they have good reason to do so. Already having other children on EHCP plans is not usually reason enough and especially given your conversion from a statement is actually running late because the LA have not sorted it in time, it would not look good in a tribunal situation if this was a reason given not to place your child at your first choice school.

When the EHCP conversion takes place you should be asked your views, the child asked theirs, an assessment take place to update the paperwork on needs/provision needed and only once all of this is put together and agreed between parents and the LA will the LA then finalise the EHCP and name a school. Once they have done that then you have a right to appeal to tribunal.

I think for now you need to accept the place you have been offered so you have a place for the time being somewhere and then look into appealing via the tribunal if the LA do not name the school you want in the EHCP. If they do name it, it will trump the offer you have accepted. Meanwhile you need to put some pressure on the LA to sort this paperwork out asap. If you cant easily negotiate any changes that you want ask them to finalise the EHCP and start the mediation/appeals process. The LA can still change their mind whilst the appeal is pending but hearings take time to schedule.

When we were in a similar position I was advised to accept the school place but put a disclaimer in the comment box to say that you do not agree that it meets your DC's requirements otherwise they can say "well you accepted it".

Thank you for all the information. I am really grateful. Can I ask who is respond for organising all the assessments for the reports that need to go into the EHC plan, i.e educational psychologist and speech and language assessment- will this be the LA or his present school?

The frustration is that the LA are not r spending to our emails.

I mean not responding to our emails despite the team manager being involved.

SEN assessments are the responsibility of the LA.

If they send the EHCP without naming a school that helps you a little in that you don't have to consider mediation - you can appeal immediately to the SEND tribunal

This only applies if the only aspect of the EHCP you are appealing is the school placement; but in practice you would normally be advised to appeal the contents of the Plan as well so as to strengthen your case that your child's needs can be best met in the school you prefer. In any event, there is no serious disadvantage in having to consider mediation - all that it means is that you phone a mediation adviser, listen to them telling you about mediation and then saying you don't want to do it. They then send you a certificate which you file with the appeal.

It is the LA who are responsible for organising the reports. They should have done a full reassessment unless you agreed that any particular type of report was unnecessary because the existing evidence was insufficient. However, far too many LAs are breaking the law on this. However, if your LA hasn't done it, you should probably put the issue to one side for the moment because you don't want to give them an excuse to delay issuing the EHCP.

I would strongly advise that you contact the LA now to say that they are past the statutory deadline for issuing a finalised EHCP and that unless you have it by the end of the week you will be taking judicial review action. If that doesn't work, contact SOS SEN to ask them to send a formal pre-action letter to the LA which should wake them up.

I agree - we received our draft statement in Jan of year 6 with a school that was not acceptable and very little substance in the other parts so we requested in strong terms for it to be finalised with no further ado, which meant we could get on with the appeal. Otherwise we could have wasted weeks haggling with them over the draft and still ended up appealing.

I should have said of course that if you do decide you want to mediate then obviously you say yes - I'm not trying to imply that it has to be a knee-jerk "no". However, if you start an appeal that doesn't prevent you from continuing to negotiate with the LA and it sounds like you really need to push them into getting a move on.

I would also suggest that you ask the LA for copies of their correspondence with the schools they had to consult so that you can find out more about why your first choice school hasn't been named.

Thank you all. This is certainly the most stressful time I have had and belief me we have been through a lot of hair raising things. I will update as we go on.

Received a response today that they have gone back to consult with our first choice of school and things are being looked into in more detail and that we should bear with them on this and that we will be getting an update. I will be contacting all the organisations today to get more information.

Thank you

If they don't pull out their finger and get this sorted asap then just mention you will contact the local government ombudsman and make a complaint. They might just get their act together a bit more then?! (no promises!)

I don't think the ombudsman will deal with it given that there is the option of a tribunal appeal.

The LGO will look into delays in carrying out and issuing an SEN assessment. They will also get involved if the LA fails to implement the EHCP or carry out an annual review. They won't get involved in the choice of school or a decision not to assess a child and they are unlikely to get involved if there is an ongoing appeal to the SEND tribunal.

At the moment the SEND tribunal isn't sn option due to the lack of a finalised EHCP, so the Ombudsman might be a possibility as procedures are not being followed correctly WRT the Feb 15th deadline. This is a legal obligation as the child already had a statement.

I missed the fact that they'd missed the 15th February deadline. It's usually much more effective to threaten judicial review proceedings - to go to the ombudsman you need to have gone through the LA complaints procedure first, and it takes forever. If you had to go for judicial review it would be an action in your child's name and presumably he would qualify for legal aid, but in practice the LA would never let it get that far.

Hello All,

Beginning of another week and this has still not been sorted. We have now asked to meet with the LA, hopefully we should hear back as regards a time. Also spoke to SENDASS whom have been helpful. We have to push to have all assessments done to reflect a true picture now. SENDASS will be helping with this.

What do they have to say about the fact that they're now three weeks past the statutory deadline?

No one has replied yet Megatherium. I have just sent an email off to SENDAS as apparently the first step is to fill in a survey to show that the statutory process has not been followed.

Seriously, you need to send them an email along the lines I suggested above threatening judicial review proceedings if they don't produce the finalised EHCP by Wednesday. If that doesn't work, contact SOS SEN who will do a formal pre-action letter. It will be much, much quicker than faffing about with surveys or complaints.