EHCP & trying to name a school when class is full

[Cosmois]

Hi!

My 10 year old daughter has ADHD and ASD and was in a mainstream school. She is very bright but was only doing average at school as they wouldn't make any allowances for her SEN or apply for her EHCP as she wasn't behind. So we took her out during lock-down, home educated and have now been given an EHCP. We are now trying to name her old school on her EHCP but the school are now saying they are full so won't take her. I (possibly incorrectly) thought that a school can't just say they are "full" when it comes to an EHCP and unless they can't meet her needs or if taking her would be detrimental to other students then the LA would name this school. It is our Local school. For context there are only 20 children in each class so it isn't a ratio thing. Our case worker is looking in to it, but most school are "full" in the area, what happens now?

Unless the school is wholly independent the LA must name your preference unless they can prove:

• The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) of the child or young person; or
• The attendance of the child or young person would be incompatible with the provision of efficient education for others; or
• The attendance of the child or young person would be incompatible with the efficient use of resources.

Full is not defined in law. And on its own being full is not enough of a reason to refuse admission, the LA have to prove they are so full admitting DD is incompatible. Unless the LA can prove one of the above the LA can, and must, name your preference regardless of the school's objections.

If the LA do refuse to name your preference despite the above you can appeal.

Agree with the above. The reasons Imitatingdory has cited are the only reasons the LA can lawfully use, and they have to provide substantial evidence to show why one of these reasons applies.

The LA can still name the school even if the school objects, and once named the school has to admit the child.

If there classrooms are not big enough (if all classes are 20, it might be the case), then there response of full, is probably more technically not being able to admit another child without detriment to all others as they wouldn't have the minimum classroom space), which is often why schools have lower than 30 admissions.

A friend of mine has just won a tribunal for her DS to be admitted to a school that both the school and the LEA claim was too full to take him. As the other knowledgeable posters here have said, the legal benchmark for being 'full' when a child has an EHCP is extremely high.

Hopefully the LEA will agree to name the school in Section I.

Is your DD in Yr5 or Yr6? If she's Yr6, my concern is timing with regards to secondary. When was her last annual review?

Have you spoken to Ipsea or SOS!SEN? They give free advice over the phone, although they can be hard to get hold of, it's worth trying.

Some info here with regards to choosing a school with an EHCP:

www.ipsea.org.uk/choosing-a-schoolcollege-with-an-ehc-plan

The bar for proving incompatibility is high. It is more than merely proving it is detrimental or prejudicial, or that there will be an adverse effect or an impact. The school would have to be well over PAN for the LA to legitimately be able to refuse based on the class being 'full', small classrooms and minimum floor space.

She is in year 5. Thanks for all your advice, this is what I thought but then when they came back saying "full" I began to doubt myself. My caseworker is seeking advice from the "decision makers" so not sure what the outcome is going to be yet.

Oh I forgot to say, the EHCP is still in draft stage, so no annual review as they only agrees to issue last week. My case worker has said we will get to talk about secondary schools at the end of the academic year. We are in an 11 plus area so that is a whole other minefield.

Make sure the LA finalise by week 20. If you aren't satisfied with the EHCP push the LA to finalise then appeal rather than going back and forth getting nowhere.

@Imitatingdory we are well over 20 weeks. More like 35 at this stage! There were no Education Psychologist available to do an assessment so it has dragged on, even though I have been kicking up a fuss and have made a formal complaint.

If the LA's EP could not assess within the timescales the LA were required to commission an independent assessment. Threaten to begin Judicial Review proceedings for breach of the statutory timescales and frustrating your right of appeal. IPSEA have a model letter you can use to complain. If the threat of JR doesn't work contact SOSSEN for help with a pre-action letter.

So has your DD not been seen by an EP? Or she has now? The EP is probably the most important expert for most DC when it comes to an EHCP.

I had to do as Imitatingdory suggests as I was also told there were no EPs available. I sent them a copy of the Ipsea model letter and I cc'ed in the director of children's services for my LA (you can google them). And lo and behold! An EP was found. It is true that there is a national shortage but that's not your or your DD's problem. The LA will have to hire one privately if it comes to it.

There is some good info here about what to look out for when you're sent the draft EHCP:

www.ipsea.org.uk/what-to-do-when-you-receive-your-draft-ehc-plan

As Imitatingdory has said, it may be that if you and the LEA can't agree on the contents of the EHCP and/or Section I (the placement) then you can tell the LEA to just issue it as that then triggers your right of appeal.

Yes, sorry if I was unclear. She has now been finally seen by an EP. This was about week 30. And I did do all those things you suggest and it still took that long. We did, in the end, end up with a private EP. He did though take him 4 weeks to write the report up and then another week for the panel to agree to the EHCP. That was actually almost 2 weeks ago, so on almost 37 weeks now. We get the draft on Monday and still waiting to hear what school they will name!

We get the draft on Monday and still waiting to hear what school they will name!

This is how it should be, the draft should not name a school or type of placement, you get to make representations and state your preference. I would have threatened JR long before now. If you don't receive the draft on Monday or you do but the LA continue to drags their heels finalising complain and threaten JR. If need be contact SOSSEN for help with a pre-action letter.

Hi all sorry to jump on, I’ve been sent my Sons draft EHC Plan and as he has been home schooled since November last year due to a bad experience with his old school, we are finding it hard to find a school we are comfortable with. We have seen a school, it’s in another LA and it’s an independent special school. Does anyone know if we could ask for this type as our Sons report indicates that he needs to be in a school with reduced pupils etc which this school has and it also has the specialist teachers that the reports state he needs. I just don’t know what the eligibility is for independent schools when applying through an EHC Plan. Also how do I go about asking for a personal budget? The Educational Psychologist states that our Son will need a sensory assessment but we can’t get it through NHS so the personal budget will be for this and any sensory equipment if needed. Also we have been told he will need a typewriter or another electronic device to use as his normal writing as he has difficulties with pencil grip etc. So could the personal budget go towards this too? Thank you so much in advance for any advice given.

Mum2two91 You would be better starting your own thread.

If DS cannot attend school you don’t need to EHE, the LA have a statutory duty under s.19 of the Education Act 1996 to provide alternative education.

Is the school you want wholly independent or a section 41 independent? The law for getting an independent special school depends on whether the school is wholly independent or a section 41 independent. Just because it is in another LA doesn’t mean it cannot be named.



You can ask for a wholly independent placement, but you will need to prove none of the schools the LA is proposing can meet DS’s needs or it is not unreasonable public expenditure. You will need an offer of a place from the school, too.



Section 41 independents are included in the placements you have the right to request under s38(3) of the CAFA 2014 and the LA must name your preference unless they can prove:


• The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) of the child or young person; or

• The attendance of the child or young person would be incompatible with the provision of efficient education for others; or


- The attendance of the child or young person would be incompatible with the efficient use of resources. 
(s39(4) CAFA 2014)

Does section F detail, specify and quantify the reduced pupil numbers and specialist teachers? They need to, if they are not and they are only in the reports DS will not be entitled to them and you will not be able to enforce the provision. Is “reduced pupil numbers” quantified?

You can request a personal budget from the LA. You didn’t need a sensory OT assessment to be via the NHS, it could have been part of the EHCNA, if the LA or NHS professionals couldn’t or wouldn’t assess the LA would have had to commission an independent assessment. Parents often find the NHS do assess when it is for an EHCNA. You won’t get a PB for sensory OT unless it is specified and quantified in F. Does the independent specialist school have an OT? Many do. If they don’t this is something that could be funded via direct payments. However, if the school do offer it you are unlikely to get a DPs for it. The school would normally be expected to provide e.g. laptops.

Hi
My DC has severe SEN and in a specialist school out of our LA. We have taken out as as school hasn’t met ehcp plus other issues. We have asked for a placement in another school, again out of borough. The LA had sent papers to them and seem happy to fund. But school has said they are full. But when we visited their classes had 1-2 places so not sure that’s entirely true. Is there anything we can do? Thanks a lot in advance for any advise. Not sure what to do as no other school around that we think is good and will have to go down homeschool route if this doesn’ t work. Thanks

You would be better starting your own thread as this is an old one.

If the LA refuse to name your preference you can appeal.

Unless the school you want is wholly independent (is it?) the LA must name your preference unless the LA can prove:

-The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) of the child or young person; or

-The attendance of the child or young person would be incompatible with the provision of efficient education for others; or

-The attendance of the child or young person would be incompatible with the efficient use of resources.

Being full is not defined in law, and on its own being ‘full’ is not enough of a reason to refuse to name your preference. The LA has to prove the school is so full admitting DC is incompatible. The bar is higher than many LAs like to admit. It is more than an “adverse effect”, “impact on” or “prejudicial to”. Unless the school is wholly independent the LA can, and must, name the school regardless of the school’s objections unless the LA can prove one of the reasons above.

In future if the provision specified and quantified in F isn’t being provided you can enforce the provision, via judicial review if necessary.

Personally, I wouldn’t EHE and I would inform the LA you are not EHE and they need to make suitable alternative arrangements. EHE relieves the LA of their duties. If there isn’t a suitable school there is EOTAS.

Thanks very much Imitatingdory. It’s an Academy. I don’t want to EHE as well and I’ve told this to LA CWO. Unsure how we can take the LA to tribunal… as they say they are happy to fund the place… and the problem is not having places. The school kind of mentioned about keeping children safe as DC has PMLD. Now the LA want us to check other options including local school (which we don’t want) as it’s illegal to keep school-aged child at home etc etc. thanks very much

As your preferred school is an academy it isn’t wholly independent therefore the LA can, and must unless they can prove one of the bullet points in my pp, name a school that objects. No places isn’t enough of a reason to refuse. Although many LAs force parents to appeal.

You appeal to SENDIST. You can only do this when you have the right of appeal and the letter you receive will explain how to appeal. Do you currently have the right of appeal? If not you can ask the LA an early review. If the LA agree to an early review you will get the right of appeal following it.

Unfortunately the LA doesn’t have to agree to an early review. In which case you would have to wait until the annual review (when was the last AR?) or request a reassessment of needs, which does come with the right of appeal.

If there genuinely isn’t a suitable school you still don’t have to EHE, there is EOTAS.

If the LA are telling you it’s illegal to keep DC home ignore them. If you are EHEing it isn’t illegal. If you aren’t EHEing the LA should be making suitable arrangements.

If you don’t want to EHE, email the Director of Children’s Services informing them of the situation and requesting provision under s.19 of the Education Act and anything specified and quantified in F as per s.42 CAFA 2014. If the LA provide this, email again threatening judicial review. If that doesn’t work contact SOSSEN for help with a pre-action letter.

Thanks a lot once again. The LA said they can’t (or won’t) name when a school for severe SEN says they are full and going to name local school I think. It’s not right at all for DC but will be difficult to prove on paper. AR was in oct - they still haven’t sent any letter to us at all. You’re absolutely right.. I think they want us to go to tribunal. said we can appeal etc etc. really worried what will happen. Thanks you so much Imitatingdory.

They can and must name the school unless the can prove incompatibility or it is wholly independent.

If the LA haven’t completed the AR process email the LA’s Director of Children’s Services reminding them they are in breach the timescales and if they do not complete the process ASAP you will be forced to begin judicial review proceedings as they are frustrating your right of appeal. If that doesn’t work contact SOSSEN for help with a pre-action letter.