EHCP named school-not right setting

[PinkDaydreams]

Good afternoon all!

So I have received the primary school placement for DS due to start this September.
To be honest I am confused as to why the school has been selected and am due to view it this week. I have spoken to the assistant head of the school and voiced concerns and she agreed that it doesn't sound the right setting for ds (quoted on the website it's for "children with severe learning difficulties") and that she will be honest with me once she's met ds. Son has ASD and speech delay but he's catching up with speech. He has been signed off from salt.
His nursery teacher, senco and family worker have all agreed that the school named isn't suitable. The school was never sent out an ehcp as the case worker said the setting wouldn't be suitable. So to have it now named on his ehcp is a shock.

Anyway, I'm wondering what will happen if the school isn't right for DS? What happens when I appeal and what if a school can't be named?

Out of the five schools that were sent the EHCP, one replied to say they couldn't accommodate son (which was expected as it's a ms), the special school that we named as the prefere said they were full (which they then retracted as caseworker questioned them on this and said they can't be full, they then said that they could accommodate DS and that they do have space) and the other three schools didn't get back in touch. I have now emailed these schools myself to find out if son is suitable or not for the school's.

I know I now have to appeal this, I'm feeling so anxious, nervous, scared about this process.

Thanks in advance for your help!

Sorry I should have also said tried to book an appointment through IPSEA but not time slots available.
Called local Council for Disabled Children but have had to leave a message as no answer.

When you appeal advice is to appeal B&F as well as I, as B&F will be written to support the placement the LA have named in I. Don’t bother with mediation, just get the certificate and appeal. LAs often use mediation as a delaying tactic, if they are going to concede they will do so regardless of whether you actively partake or just get the certificate.

If you haven’t already done so follow up the conversation with the assistant head with an email to try to get her to state in writing the school isn’t appropriate. The same after she has met DS. And the same for the others who have said it isn’t suitable. Tribunals are all about evidence.

Unless your preferred school is wholly independent (is it?) they LA must name it unless the 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 DS is incompatible. The bar is high, higher 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 (or lack of reply!) unless they can prove one of the reasons above. Do you have it in writing the preferred school has space?

If there isn’t a suitable school to be named you can look at EOTAS, but that doesn’t sound relevant here. If there is a suitable school and the named school is unsuitable in the Tribunal’s eyes you will win an appeal.

Remember the majority of appeals are upheld. Are you eligible for Legal Aid? You are likely to need independent assessments. If you can’t afford these, and aren’t eligible for Legal Aid, contact Parents in Need, they can sometimes help fund assessments.

As an aside it is highly likely since DS has ASD he would benefit from (in the true sense of the words rather than the LA’s version!) SALT, which is about much more than the physical act of speech.

Keep trying with IPSEA, they now also have a call in session on Fridays. I have heard NAS’s education line is helpful too.

Thankyou @Imitatingdory, I've read a few threads that you've posted on, you seem to be very clued up on this!

Yes the LA school we wanted has confirmed they can meet son's needs and at the time had spaces (although only a handful but apparently many many other schools stating it as a preference). Which is why I'm confused he didn't get placed there as it's the only one out of the school's sent the EHCP that could accommodate him.

Yes yes to getting an email from the school stating why it wouldn't be suitable, I'm going to ask for something in writing once we have visited.

I think I'm panicking about the evidence that I will need to provide, as I feel awful saying that the school on his ehcp is for 'severe needs' but my son doesn't have that. It says "significant speech delay" on the ehcp but his speech has come on loads since the initial asessments were made.

He was under salt but discharged as he met his targets. We were told that once he starts school then if we feel he needs salt again then to get back in touch for further appointments.

NHS SALT often discharge, but it can and should be in the EHCP so if the NHS can’t or won’t provide it the LA must commission independent provision. You don’t need to wait until DS has started school. An independent SALT report will help your appeal and will ensure SALT provision is included in t section F.

The EHCP saying significant speech delay when it’s out of date is partly why you should appeal B&F as well as I.

Thank you so much @Imitatingdory. He has got a speech delay and salt is mentioned in the ehcp. I now think the word 'significant' needs taking out as yes he is delayed but I don't think it's significant anymore. He now puts sentences together and can have a conversation whereas when the observations were done, he was only using a few words together.

I'm going to call the case worker once I've visited the school and speak to him about changed the sections that you have recommended. I also want a reason as to why the preferred school which has said it can accommodate DS and also has space, has been overlooked? I want to know how a decision has been made as to why the current school has been chosen? Not that I'm expecting to get the answers!!

Don’t call the caseworker, email, that way you have a paper trail to use at Tribunal.

If SALT is specified and quantified in F DS should be receiving the SALT provision. If he isn’t complain to the LA as it is them that are responsible for ensuring the provision is provided. If the NHS can’t or won’t they need to fund private work.

Email yes, you're absolutely right regarding the paper trail! I'm going to put in an email about that there was space at the preferred school as I haven't got that in writing, it was over the phone, "as per telephone conversation dated ....." hopefully I can submit that as evidence too

SALT is about much more than being able to speak. Children with autism typically struggle with other aspects of communication like understanding body language, figurative language, inference skills and social communication.

My son was discharged from the NHS SALT service at the age of 9. Ten years later, when he was assessed by a SALT as part of the EHC Needs Assessment process, he was found to be functioning at age 10 in some areas and yet they were unable to offer any support. .

When he went to a specialist college for students with autism at the age of 21, he received SALT on a weekly basis.

@Ellie56 that's so disheartening to hear that your son couldn't be offered anymore support.

After the named school observing DS today, they are in agreement that he's too advanced for the school and they aren't the right setting for him. She said the perfect school would be the one that we had down as the family preference, she told me the school before I'd even told her that that was the one we had actually named (and have confirmed they can meet needs and they have space but the LA be chosen different school instead)! She said she's going to email whoever it is she needs to email to tell them that they can't meet needs, apologies I can't remember who she said she needs to contact. She said that she'd had to do the same already today with another child, he also wasn't suitable.

Emailed the case worker today but he's not got back to me, surprise surprise!

How does appeal now work as the named school will now be saying they can't accommodate so he doesn't have a school to go to now. Is it still the same appeal process? Or do the LA have to name a different school as the already named school that they chose have now said no?

But good to know that he's since received help. It's frustrating though isn't it?! We just want what's best for our children and they deserve a right to these services if it's going to help them progress

Yes, it is still the same appeal process. Although it gives you good evidence if the school agree they can’t meet DS’s needs. Unless the school is wholly independent the LA can name the school even though they object.

Thank you @Imitatingdory. Oh no, that's not good that they can still name the school. I don't know what we will do if the school isn't changed. I've asked nursery if they can keep him for another year but waiting to hear back from them.

Try not to worry, easier said than done I know, but you have a good case. It’s not as bad as you think because it works both ways. Unless your preferred school is wholly independent the LA must name it unless they can prove one of the 3 reasons I posted above, and they can and must name it even if the school object. And you can show the current named school is unsuitable.

Sorry to ask another question! Should section J, personal budget, have something in it? My son's is blank, I'm not sure if that's correct?

Section J will be blank (or say e.g. N/A) unless you have a personal budget.

Great thank you

Hi all!

Just a message to say thank you so much for your advice!

Section I still hasn't been changed as yet but I have a date for tribunal. Sections b and f have successfully been amended today, thank you all for your advice!

Regarding section I, sons caseworker has said that there "may not be much movement regarding the school of preference" (he's on a waiting list to go there apparently, even though they have said yes they can accommodate his needs and yes they have space), so it sounds like the la don't want to name our school of preference. BUT I was advised by the local law clinic to name a section 41 school so I've I formed the caseworker and he has said that he has passed this on.

I am waiting for a return phone call from the section 41 school as I need advice as they don't take children aged 4 (son turns 5 in January 2023) so I'm wanting to know what happens regarding this (can he start term after he turns 5) or will it be a straight no he won't be able to start there. Am I right in thinking that the la will pay for my son's education for a section 41 school but that I have to find the transport?

I'm so confused by the amount of information I've read on the internet.

To be honest, I'd love it if the section 41 school is named as it looks perfect!

Unless the school you want is wholly independent the LA can only refuse to name your preference if they can prove one of the reasons in my pp. Waiting lists don’t exist like they do in normal admissions procedures. 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 DS is incompatible. The bar is high, higher than an “adverse effect”, “impact on” or “prejudicial to”. The LA can, and must, name the school regardless of the school’s objections unless they can prove one of the aforementioned reasons.

Parents often find when they start talking about NMSS or independent SS a place miraculously appears, but if it doesn’t you have a good case for appeal.

If a section 41 independent is named in the EHCP the LA should fund the fees and the transport. Many LAs claim they don’t fund transport or only fund to the nearest SS but if it is named in the EHCP they should fund it. Sometimes LAs will name a school on the basis of parental preference if the parents fund transport, however it is possible to challenge this. There is more information on this here. If you are refused contact SENTAS, who specialise in helping with transport appeals.

I think I'm panicking about the evidence that I will need to provide, as I feel awful saying that the school on his ehcp is for 'severe needs' but my son doesn't have that. It says "significant speech delay" on the ehcp but his speech has come on loads since the initial asessments were made.

No need to feel awful about that. You will be doing no-one any favours by accepting inaccurate descriptions of your child's difficulties in the EHCP.

When you say that sections B and F have been amended, what are the amendments based on? Section B needs to describe all your child's difficulties in reasonable detail - it's not good enough, for instance, just to put that he has communication difficulties or expressive speech difficulties, it should describe how severe the difficulties are and how they affect your son, not only in terms of communication but things like attention, frustration etc. Section F needs to have provision in reasonably detailed and quantified terms, and should not frame it using words like "would benefit from", "access to", "regular", "as appropriate", "contacts with", "up to" etc; support should not be framed as coming from unspecified "adults", and when they prescribe programmes section F should specify who (e.g. therapist, teacher, TA) is to be responsible for drawing up and delivering those programmes. You may need independent reports to ensure an adequate EHCP is drawn up.

@Imitatingdory I remember you saying that the excuse of the school being full can't be used. Sadly the la are still saying the school is at capacity and the caseworker has said that if no other suitable school can be found then the tribunal has the power to order a place be commissioned there. So it sounds like it will go to tribunal which is frustrating.

His EHCP now has specific time/quantities for activities such as 1:1/sensory experience/role play/salt/therapy etc whereas the previous was extremely vague. I now have occupational therapy listed whereas this was previously mentioned in draft but somehow was then taken out and I was told that it doesn't need to go in.....well I've argued it does need to be written so that's now in there too. SALT is now back in the plan as well.

The section 41 school have called me back and sadly can't take my son until sept 2023.

Sadly, LAs often act unlawfully and force parents to appeal.

Are there any other special schools (including other s.41 schools and non-maintained special school or wholly independent schools) that do admit reception age?

I will have another look but I'm sure there was only one section 41 of primary school age, I could be wrong though.

Thank you so much for your advice and guidance by the way :)

You can search for schools here. You can filter results by e.g. special schools and type of need, but don’t filter by phase of education because for independent special schools and NMSS it doesn’t have that data recorded for all of them so they don’t show up when filtered by phase of education.