Secondary school appeal help needed for medical grounds

[DaisyB22]

Thank you reading this long post and will be grateful for any advice regarding secondary appeals so I can make the right decision.

My son didn’t get a place in any of the secondary school we applied for but in particular our first choice. It is a Church of England schools that is taking its 3rd cohort from September 2024. We applied for a faith based place (other world religion), SEND was not an admissions criteria and nor do we meet any other criteria.

We chose this school as it is the only school we feel that can meet our son’s needs. He has a rare blood disorder cyclic neutropenia where his white blood cells drop causing him to fall ill on a regular basis and he needs to be at home or hospital to recovery, under the pathway for ASD/ADHD. Social communication delays. I spoke to the school on 3 occasions and they confirmed that they can meet his needs through the universal provision offered as they offer before and after school classes which can be used for catch up lessons as he will have low attendance (consultant letter states with his condition he will fall ill every 3 to 4 weeks needing 3-5 days away if he has a persistent high temperature), pastoral support and classes to develop fine motor skills.

Now I have appealed under exceptional medical circumstances and in my appeal letter I’ve stated all of this and my GP has written a letter saying this is the only school that can meet his needs. However they’ve had 1036 applications PAN is 240 and 100’s of appeals. School have stated they cannot admit another single child and have sent an extensive pack highlighting their case and I feel like I don’t have a chance.

I have sought legal advice where I’ve been told I have a good case but not articulated this correctly in my appeal but I can’t afford further representation. Now I have appealed other schools in our area who have refused him a place unless I can secure an EHCP and I know this is legally incorrect but the panel decided admitting him will cause prejudice to the school.

He doesn’t have a school place for September as I cannot send him the school the LA has given as they cannot meet his needs.

How do I do this appeal on my own with a good chance of winning. I would be grateful for any help, any case law.

Thank you

The first thing to say is that an admissions appeal is not a court of law. There is no case law and previous cases do not set precedents.

The legal advice you've had may not be good. Most lawyers have little to no knowledge of school admission appeals. I have seen some give appallingly bad advice, to the point where they have turned winnable cases into guaranteed losses.

I am unclear what you think is legally incorrect with the other schools in your area. They cannot go over PAN for you. If a place becomes available, it must be allocated in accordance with their admission criteria. Unless your son is at or near the head of the queue for these schools, the only way he is likely to get a place is to get an EHCP naming the school.

Turning to the school for which you are appealing, as long as the letter from your GP is clear that they are giving their own professional opinion and not merely echoing your views, you have a very strong case. I have no idea why the lawyer you consulted thought it wasn't articulated correctly. If it is as clear as your post here, you should be fine.

If you want a proper opinion from someone who really knows appeals, feel free to PM me your case and I will be happy to review it for you.

Contact IPSEA (check.out their website for details). Very useful for assistance and explaining SEND law

Ok, representation at appeal is best done by YOU, the emotion and truth of the matter will come through.

1.Did you make the local authority aware that this was the only school that could meet his needs when you applied?

1. Are you sure other schools can not meet this need? The need to catch up before and after school clubs is not necessarily essential in all hoensty - so I would word that carefully.

3.the case you put forward does not need to be perfect, you need to go and tell your story to the Panel and answer questions. But also be realistic, is this really the reason you want the school or is it just the school you want?

1. All school cases will read that they couldn't possibly let one more child in, if the panel felt the school hadn't made its case - they would have to let all appealants in.

It is a formal hearing though, and the decision is binding on all parties.

Thank you for your reply.

There is nothing legally wrong with the other schools. The school allocated by the council is not suitable as recent Ofsted states the send provision isn’t adequate and needs to be improved significantly- teachers are not implementing send provision for the children. Teachers are failing to identify gaps in learning and thus pupils are falling further behind. My son needs send support and this needs to be consistently implemented. He will be having significant time off school and thus it is expected there will be gaps in knowledge and he will fall behind and thus he needs teachers to identify this and support him in this area when he is in school and provide opportunities for over learning.

The GP letter says “From speaking with the family and health professionals reports and recommendations, it appears that B C* Academy is the most
appropriate and suitable educational environment for A. Then goes to explain why.

I do apologise the legal representative wasn’t referring to the GP letter but my appeal statement correctly- it wasn’t articulated correctly as it was too vague.

I have sent you a PM. Thank you. ☺️

Thank you for your reply.

Yes I provided all the information to the LA and the school and prior to this spoke to the school on 3 occasions to ensure they can meet his needs without an ehcp through existing send provision.

It’s not catch up club but time with teachers to make sure he’s had the same teaching as the rest and anything he’s missed they will cover and opportunities to learn ahead as it is expected he will have significant time off due to his health condition.

My son has had negative experience in a previous school setting and therefore we are cautious and we need to make sure the school that he attends can understand him and his needs. His current primary school have taken the time to do this and communicate with him as he understands he’s making excellent progress. The send support has enabled him close gaps in his learning and boosted his confidence. We need a secondary school that can carry on this support for him and we found our first preference was the only one that communicated with us and my son to understand his needs. Yes other schools should be doing this universally but what I’ve found in this past year is barriers. I’ve been told by a few schools I need to secure an ehcp first otherwise they can’t meet his needs. Another school will not communicate with us unless he was allocated a place there as it a waste talking to me prior to this.
In all honestly the school I want for him is the only outstanding secondary school in our area isn’t ideal for him as he wouldn’t be able to cope in that environment. Hence why we chose the one that could meet his needs. But it’s turned out to be very popular.

LA have refused needs assessment for ehcp as he isn't significant behind but ignored the amount of support school and home are providing to close the gaps.

I think is struggle with explaining and answering questions. In the last hearing for another school the panel asked which condition of my sons is more important- his asd/adhd or neutropenia (low white blood cells making it hard for him to fight a simple infection). I just didn’t know what to answer so I chose the latter as it can potentially be life threatening. I didn’t understand the relevance of the question tbh. He was refused a place as school stated with ehcp they couldn’t admit him and I understand this as they would be over PAN.

There are wonderful appeals experts on here and I will leave that side if things to them but wondered if there were additional things you could add to supports some of the medical needs..? I know someone with a condition that sounds a lot like neutropenia. One of the things that she relies on is air filters as she gets ill less often. She doesn’t use public transport and if she is in busy environments she uses a mask. If this is a new build is there ac / air filters and if so does this benefit your child? Also, if the school is only in its third cohort are there less children overall and is this a benefit re infection for your child? Although if he would be going to school on public transport this may not be a good argument.

I think tbh you are focusing on the wrong thing, You really really need to challenge the EHCP decision. I really can't see a way your challenges aren't going to multiple at secondary without an EHCP.

It is clear from your consultants letter your DS requires more support than the norm to make equivalent progression. I suspect your child will need even more support come secondary. This should mean EHCP. I can't see how your LEA will win this decision, they are relying on your not challenging it.

Has your consultant made referral to OT? Is there a specialist nursing team? You need precise documentation of needs from one or the other or both. If you can cobble together the money to do it, i would suggest you need a private OT report from an OT experienced in tribunal work if you can cobble together more money get a SEN solicitor or advocate. I had one that gave us a fixed price (£2500 + £1500 if it goes to tribunal, it didn't because the LEA capitulate prior to tribunal. they have been worth every penny)

I don't know the condition but is the periods he is unable to attend school, is it because he is unable to for immune reason or he will be completely flattened an to ill to work at all or somewhere in between?

I will say at this point I'm a huge advocate for alternative schooling provision. So for example DS suffers from fatigue issues. When he was in mainstream secondary he would had times when he was too ill to attend school but actually he could have sat an watched a lesson on his laptop for example. but i still picked a traditional secondary because alternative provision at that time really really not the done thing. He Suddenly thrived during lockdown where we we're able to work to our own schedule and he didnt miss any learning, and (after his medical conditions worsened) this has become a formalised EOTAS (education other than at school) fully funded by the LEA. I know a few kids who are thriving or have thrived under EOTAS. DS' package involves home tutor, gym membership, occupational therapy, I know other children that have had small group education funded or online schooling. All very very successfully.

In your sons case I'd look at a more online school like interhigh. All the lessons are recorded so he literally will never miss a lesson. Ensure adequate socialisation through hobbies and clubs.

Alternatively in a mainstream provision I'd suggest you probably need tutor to cover any gaps.

If you can get your Consultant or specialist nursing to write what you want into a letter (so instead of "ds will miss x amounts of schooling' 'ds will miss x amounts of schooling and will need extra tutoring/alternative provision to ensure). But ot should be able to cover what you need.

The eleven plus.co.uk website has some good advice regarding appeals (although some, but not all, is grammar-school specific). Maybe worth looking on there.

If you don't get a SEND lawyer you need to point out to the LEA

the the send code of contact defines a child with SEN as one who

"• has a disability which prevents or hinders him or her from making use of
facilities of a kind generally provided for others of the same age in
mainstream schools or mainstream post-16 institutions " xiv

"…a physical or mental impairment which has a long-term
and substantial adverse effect on their ability to carry out normal day-to-day
activities’. This definition provides a relatively low threshold and includes more
children than many realise: ‘long-term’ is defined as ‘a year or more’ and ‘substantial’
is defined as ‘more than minor or trivial’. This definition includes sensory impairments
such as those affecting sight or hearing, and long-term health conditions such as
asthma, diabetes, epilepsy, and cancer. " section xvii

It does not define it as a child whose education means they are already failing.

(Your consultants letter confirms your son is unable to access normal education facilities for a prolonged period of time)

And remaind the LEA they have a legal duty to identify need.

But a solicitor will do this better

So you haven’t accepted any school place for September? Tbh it sounds like there is an element of you only want your son to go to an Outstanding school. If you haven’t accepted a school place and started a dialogue with your offered school, you don’t have solid grounds for saying why your preferred school is the only one that can meet your son’s needs - you don’t know what provision is on offer because you haven’t accepted a place or asked them.

You don’t need school’s permission to apply for an EHCP, so no matter what you do, get the ball rolling on that process too. There are other more qualified experts on here than me, but I’d want to demonstrate that his current attendance at primary school is impacted by his illness to the degree his consultant states, that measures currently in place are successful in keeping his education up to scratch and therefore need to continue.

I just read the outstanding thing.

Please be careful. Outstanding does not necessarily mean outstanding for SEN.

I remember when our primary head got good. it was well known back then that to get outstanding sometimes meant being very efficient at getting the wrong SEN kids out and into alternative provision and keeping the "right" SEN kids. Our head had a very strong principle of inclusion, she was talking about not being sure she could our wanted to do what was needed to get it to outstanding. I don't think the situation has changed much.

I’ve been told by a few schools I need to secure an ehcp first otherwise they can’t meet his needs.

Tbh you probably want one of these school. These school are being realistic about your DCs SEN

@DaisyB22 have you, personally, made contact with the allocated school to discus your DS's needs, or are you just going from the Ofsted inspection report? When was that Ofsted inspection?

At appeal, schools which are not purely academically selective have to put forward a case as to why they cannot accept any other pupil over the number already planned for.
Already being just at PAN for the intake is the starting point for that argument, but is not, in itself, sufficient to prove prejudice (though is sufficient not to admit more in the first place).

On the face of it, your DS's case in itself would appear to be good, but... there is the possibility that the independent appeal panel will find that it is not strong enough to overcome the school's case not to admit (one issue with new schools is funding only being released for the number of year groups / pupils there, so a school only on it's third intake won't have an extra 2 year groups' worth of furniture / equipment / staffing on hand to divert to extra pupils in the year groups populated to date). And the point about only wanting an Ofsted Outstanding school really isn't one that you should labour - either this school, for what it actually is able to offer, is 'the one', or it isn’t - the Ofsted label is just a distraction.

For appeals, you generally have to say why that school is suitable for your child, not why others are unsuitable. Let’s face it, if there’s only one outstanding school in the area, and the rest ‘needs improving’, every child in the area would have a case to go to the outstanding school.

I think you are being unrealistic in what you think a school can provide. Even with an EHCP it's unlikely to give access to additional teaching face to face teaching to make up for low attendance.

I second posters who are suggesting you need to challenge the LA's decision not to assess for an EHCP. (If you are still in time.) Ipsea has some great information about applying for an EHCP and appealing.

https://www.ipsea.org.uk/Pages/Category/get-support

The LA's claim that your DS isn't 'behind enough' to warrant an EHCP assessment is unlawful.

I know DC at grammar schools with EHCP. Academic ability/attainment is only one aspect of an EHCP.

My concern for your DS is regardless of what school he ends up in, it sounds like his needs are significant. Without an EHCP, you are reliant on the 'goodwill' of the school. As budgets get cut more and more, this puts your DS in a very vulnerable position.

I would ask if your DS's consultant would support the EHCP application process. My DS's consultant was happy to write a supporting letter outlining his difficulties. (My DS is operating two years ahead in some academic subjects. His school said he would never get an EHCP but I applied myself and he did.)

If they have a space they have to offer your Dsa place, ehcp or not. They could support your application for one.

No he doesn’t have a school place for September as I can’t just accept what the LA chose as they didn’t even read his evidence and look at what’s suitable. They just placed him in the closet school with places.

No I said if I wanted him to go to the school I would have chosen the outstanding school. However I’ve not even applied as it’s not the right setting for him. The one we chose we’ve spoken to who said they can meet his needs.

No he doesn’t have a school place for September as I can’t just accept what the LA chose as they didn’t even read his evidence and look at what’s suitable. They just placed him in the closet school with places.

No I said if I wanted him to go to the school I would have chosen the outstanding school. However I’ve not even applied as it’s not the right setting for him. The one we chose we’ve spoken to who said they can meet his needs.

This is confusing, did you apply to any of these schools other than the faith one (the appeal school?) LA don't "choose" a school, there is a specific allocation process which looks at your preferences first to see of you qualify within the PAN. Had he an ehcp you would have been able to agree this in advance. Do any of these schools have a social/medical category, was he considered for this and given appropriate priority in the admissions process?

Unfortunately without an ehcp - school places are not allocated on which one meets the child's needs.
They are allocated according to the criteria published and needs is never one of the criteria.
You need to accept the school place offered by the council so that you don't end up with no school come September.

Do you have evidence after speaking with them that they can't meet his needs? E.g. you spoke to the Senco to ask how he would be supported in catching up and they said 'x, y, z'? - because while you are appealing for the school you want - this will support your case of why one school is better suited.

Do not just quote the ofsred report as evidence. That is not enough - because it shows you haven't even tried to engage with the school you were given.

That being said - I also think you have a strong case for your appeal. good luck.

(Do consider what you plan to do if you fail, and you have not accepted the alternative place - as council will have no need to help you then)

Just to clarify I’ve not applied at an outstanding school- I said I would like this but it’s not the right setting for him.

The school I’m appealing for is the one that has communicated they can meet his needs but we were not allocated a place.

Additional teaching time is what they are universally providing for children in English and maths as the majority of children going into year 7 are so behind however this time can be adapted for my son.

I am appealing the Ehcp not to assess with sendiass as LA didn’t change their decision at mediation either. His consultant has said from the outset he needs an assessment from ed pysch and supported through ehcp and the LA have said it’s not his place to say that and disregarded the evidence.

I’m thinking maybe I am approaching all this incorrectly. I should concentrate on pursing a ehcp and see if alternative provision would be better for him considering how much time he needs from school. His attendance is usually 50%.

If his attendance is 50% then with the best will in the world catch up sessions will not make a massive amount of difference, unless you’re looking for those catch up sessions to run from 3.15 - 8.15pm every evening.

you need a provision such as online schooling so he can complete his lessons at home / flexibly as and when he is well enough

LA have said it’s not his place to say that and disregarded the evidence.

LEA act illegally shocker🙄🙄🙄. You have both failure to assess need and failure to provide and with only 50% attendance failure to provide an education fit to need.

Yes

You need to challenge ehcp. There is no way in the world the afterschool tuition will be in any way adequate you really do need alternative provision.

You need

1. contact the consultants secretary and current senior. Confirm referral to Ed phsych has been made. Get contact for Ed physc team check referral made

2. get a mediation certificate and (assuming you are within time) apply for tribunal( you might have already done this if it is gone to mediation

3. make it clear that

4. remind the LEA that you will he providing the consultants letter to the tribunal bundle

5. I seriously think you need some expert legal help. Yes it is worth it. But you really do need it. Check if you are entitled to legal aid funding

I don't think this is totally accurate. The op has said that the after school classes are in English and Maths and it should be completely doable to support the boy in these subjects during this time. Given that he may be well enough to do some independent study at home when he is recovering from his bouts of illness and if he is a fairly able child this may be sufficient to keep him working at a reasonable standard. Don't forget that a school day takes up time with registration, assemblies, moving between lessons, PE that might not be accessible to the op's son anyway, etc. it may well be that it will be sufficient for the boy to do well in GCSE and it might also be possible to negotiate a reduced number of GCSEs too if needed.