School can't meet EHCP...now what?

[tigerbread11]

My child has an EHCP and is due to transfer schools in September. The only potential mainstream school suitable say they can't meet one of the provisions and it would cost £16,000 per year for them to meet it. I'm waiting for LA response but in the meantime I feel very lost and need advise. Has this happened to anyone else? What are our options? Do I accept less support so they can go to the suitable school or do I choose a school DC won't be happy at and doesn't meet their other needs/doesn't offer the curriculum options for GCSE?

The EHCP should have been finalised by 15th February. If it has not been you need to threaten Judicial Review (email the Director of Children’s Services), so you have the right of appeal. If the threat doesn’t work contact SOSSEN for help with a pre-action letter. Once you have a finalised EHCP you can appeal. Don’t bother with mediation, just get the certificate and submit to SENDIST, LAs use mediation as a delaying tactic.

Don’t accept less support or make section F vague and woolly. That’s a terrible idea. DD needs the support.

The school shouldn’t refuse to admit DD to mainstream because it would cost too much. Unless the school is wholly independent the LA can name the school even if the school object.

DS3 is in mainstream and the provision in his EHCP costs more than £16k.

We are still at draft stage (first plan) it's been finalised for the current school but nothing sorted for the next school.

The plan itself is specific and I'm happy with it, it's getting the new school to agree to take DC.

The school is an academy. Are LA likely to agree to that school or will they make us go to another mainstream school?

I sent an email with my feedback and that in the first instance we want that school with her current draft of the plan. I've outlined why and said if it's a no after consulting the budget then I'd feel like I'm accepting less support and provision would need to be x or y and it may not work. I will email now making the position clearer that I intend to fight for that school with the funding they require to take her.

If the plan is finalised it should be finalised with next years placement too. What week are you on?

Being an academy doesn’t matter, the LA can only refuse to name your preference if 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.

The bar is high, and it costing £16k to fund is highly unlikely to cut it.

Just realised total name change fail

Ok must still be at the draft stage then. We applied last August and got the first draft of the plan early February. The draft was amended and we are at coproduction meeting stage now.

If the provision is specified and quantified in Section F then the Local Authority (via the school your DD attends) will have to deliver it. Whatever school she attends, they're going to have to deliver it. The argument about funding is actually between the Local Authority and the school.

Once the final EHCP has been issued, this triggers your right of appeal. If the school you have requested isn't the one named in Section I, you can appeal it. One of things a tribunal judge is likely to ask is what does the mainstream school need to meet DD's needs? £16k a year isn't a prohibitively high sum to expect a Local Authority to provide a school with. A specialist placement is going to cost them considerably more!

Some info about naming a school with an EHCP if you've not seen it:

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

Thank you, that's really useful. I'm finding it difficult to work it all out.

It sounds like it should be finalised then I make the argument if needed?
I emailed LA saying I want that school and the current draft plan in place and they are going to discuss it with management and let me know.

I think it's the co-production meeting with the new school that has thrown me. I ended up crying in the meeting 😳 the school told me very bluntly/forcefully in no uncertain terms they can't meet that one provision and to do so is to fund a whole ta of £16,000. I was told there are for example 1 ta in a class expected to work with say 4 ehcp students plus those without :/ and was listing of problems. I have pointed out that I felt school had their own way of supporting children with ehcps and expected children to fit how they work rather than individual needs.

The provision in question is having 1-2 carefully selected consistent tas only (recommended by Ed Psych) rather than a different ta for each lesson which is what they offer due to DC needs.

If you applied in August last year, you are miles out of time. Unless you needed to appeal the process should take 20 weeks. In order to meet the statutory timescales the LA must send a draft by week 14, which they didn’t. Even if they stuck to the timescales before then, a draft early February you should have had a finalised EHCP now. You need to threaten Judicial Review.

I was told there are for example 1 ta in a class expected to work with say 4 ehcp students plus those without

This isn’t how it works. If 1:1 is specified and quantified then it must be provided, to do so is unlawful. If the provision isn’t provided then it can be enforced via Judicial Review against the LA - it is the LA who are ultimately responsible for ensuring the provision is provided. The school are leaving themselves open to potential Disability Discrimination cases, too.

However, this is where it is important the wording isn’t vague or woolly. If section F says e.g. “access to” “would benefit from” “or equivalent” etc. then it cannot be enforced.

1:1 provision isn’t uncommon at all. Many do have consistent 1:1s. DS3 has full time 1:1 including breaks and lunch provided by 2 TAs. Even if the school want different TAs, which some secondaries prefer as it allows for subject specialists, they would still need to employ an additional TA or not have a TA supporting others if they are going to provide 1:1.

Thank you so much, this is really helpful. I already knew we are over deadlines. A lot of this was waiting for Ed Psych input as the waiting list is so long. Lots are delayed in our area. Plus having to wait for co production meetings with both schools.

This is part of the wording -

X will have one/two consistent adults supporting her rather than a different TA each lesson.

Frequency - though out the day

Is this specific enough?

It's now been over 37 weeks since the LA received my request for an ehcp assessment.

I will let someone with more expert knowledge comment on the actual wording but to me it sounds like 'throughout the day' could be tightened up to say something like: 'in all lessons and including break/lunchtimes'. However, if that's not going to happen, I would be inclined to tell the LA to issue the plan now.

By not issuing the final EHCP, the LA is preventing your legal right of appeal. As dory says, you need to threaten judicial review. My concern is that both they and the school in question are using stalling tactics.

It sounds like the school is trying it on. Again, as dory says, that is NOT how TA support is supposed to work - unless those other DC have EHCPs so badly written that it doesn't quantify or specific any actual support. (Which I guess is possible!)

With regards to the wording throughout the plan by whom is referred to as 'by a trusted adult' and it's defined that my child should contribute and give her views on who works with her.
I can go back again if wording sounds too loose.

I will email again with regards to deadlines, when to expect the plan to be finalised and threatening judicial review.

Anyone approached for advice during the EHCNA should reply within 6 weeks, this is a statutory timescale. If the LA’s own professionals cannot assess within those timescales the LA must commission independent provision. Coproduction meeting are also not a lawful reason not to finalise. Email the Director of Children’s Services.

“Trusted adult” could be anyone, what experience, training and qualifications will they have? What will they be doing to support DD?

“Throughout the day” does not mean DD will have a full time 1:1.

@Imitatingdory ok, thank you.

I'm going through draft again to look again at wording.

I will ask for a definition of trusted adult to be included and as for the frequency of 1/2 specific tas to be changed.

Is 'as and when needed' also too vague? As lots of provision depends on exit passes etc

Yes, “as and when needed” is too vague. It is too subjective, what you and DD consider “as and when needed” may not be the same as what the school do.

Ok thank you. Is there any recommended wording for example if it's an exit pass how do we word the frequency?

Ipsea and SOS!SEN have some info on EHCP contents here:

www.ipsea.org.uk/what-an-ehc-plan-contains

sossen.org.uk/information_sheets.php

If you feel that you're not making progress/can't reach agreement with the EHCP though, force the LA to just issue it as is. As I said earlier, this will trigger your right of appeal. You will be able to appeal sections B, F and I (the name of the school) at the same time.

My concern for you and your DD is if this carries on for much longer, the secondary placement won't be sorted in time for September.

@Toomanyminifigs thank you. I will give the LA a few days to respond to my many emails today and then if no further I will email regarding judicial review, issuing as it is and tribunals etc.

I am worried as DC will have early transition and it all needs to be sorted. Thankfully as it stands she has a place at the new school we want as I had to apply for a normal place during the ehcp process.

Just so I'm clear - DD has a place at the secondary school you're trying to name on her EHCP anyway through the usual admissions policy?

Are they actually saying that they can't meet her needs now she has (or will have) an EHCP? I think this is quite an unusual situation. Hopefully someone more qualified such as @Imitatingdory will be along to advise as I don't know what the position is regarding this. Could the school now try to refuse to admit her?

I agree with toomanyminifigs don’t go back and forth with the LA, it is rarely successful and if you have to appeal time is ticking.

It is difficult to comment on specific wording without knowing more about DD and the EHCP but it should detail when the exit pass should be used/when DD should be supported/prompted/encouraged to use it e.g. when DD is overwhelmed and what the specific signs of that are. Exit passes/time out cards are one of the more minor provisions in EHCPs and pupils without EHCPs also have them, but specified and quantified provision is more important with specialist or resource intensive provision such as 1:1 or any therapies.

Yes that's correct @Toomanyminifigs it confuses matters even worse. Technically she has a place there without an ehcp but what that means once it's finalised may be different. I've been talking to SENDIASS but although helpful, they have been limited help.

To explain my last point further, it is important for all provision to be detailed, specific and quantified, but of greatest importance for more specialist provision. That’s because things like time out cards are more likely to be given by the school even without an EHCP or with a vague EHCP whereas they are unlikely to provide full time 1:1 or SALT or OT or MH therapies when it is not detailed, specific and quantified and they don’t have to.

X- posts. The EHCP overrides the place offered in the normal admissions round. Yes, the LA could in theory refuse to name the school in the EHCP, but it would only be lawful if they could 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.

The bar to prove incompatibility is high, higher than an “adverse effect”, “impact on” or “prejudicial to”. The school can object all they like but if the LA can’t prove one of the above they can, and must, name them regardless of the school’s objections.

You would be likely to win any appeal if the LA did refuse to name the school.

Be careful with SENDIASS, some are good but too many repeat the LA’s unlawful policies. IPSEA and SOSSEN are better.

Ok so really it's that she needs 1/2 constant ta support in all lessons throughout the day with specifics of the tas involved like how they are identified to work with DD, the training they should have etc?

Thank you so much @Imitatingdory that's all really helpful.

Between you and @Toomanyminifigs I feel like I have a much better understanding and know where I go from here.

Yes. Is there other provision too such as therapies?