Academy school appealing to secretary of state after being named on our DC's EHCP

[Stracciatella]

Hi. My DS is 11, has ASC with PDA and we are in Hackney. Our preference school was for a school in Islington but the local authority initially sent our application to the wrong school (the autism school attached to it). After we spotted the mistake, Hackney Ed consulted with our preferred school, who said they couldn't meet our child's needs. The school declined to offer a place on grounds of resources (even tho the ehcp provides funding) and impact on other children. They said a fast-paced academic school would make his increasing anxiety worse. Hackney disagreed with this, as my DS is in mainstream, working at greater depth, and has never had a behavioural issue in class, is a prefect etc. Hackney then sent a direction letter. Now the school says it will appeal this with the secretary of state. I can't find any info on this process of appeal to secretary of state, whether they have to admit if their school is named on the EHCP while the appeal is ongoing. Whether it's just a threat to make us feel unwanted and walk away. Has anyone had experience of this ? I'm at my wits end and can't get through to Ipsea or other advice lines despite hours of trying. Really grateful for any advice...

I'm so sorry to read about your situation. I don't have any advice other than to try posting on:

www.facebook.com/groups/507200824462966/?ref=share

I see other parents posting about legal issues relating to schools/EHC plans, so hopefully you can get some specific advice there.

Sounds more like a scare tactic in the hope you will pursue another placement.

Most academies’ funding agreements do allow them to ask the SoS to determine whether they should have been named. However, the bar for proving incompatibility is high, higher than just an “adverse effect”, “impact on” or “prejudicial to”. It doesn’t sound like the school can meet that bar. And, even if the SoS decision isn’t favourable you can still appeal to SENDIST.

Thank you toodizzyizzy, I have asked to join that group. LargeLegoHaul, thanks -- do you know if the academy has to admit while the appeal is ongoing? I am really struggling to pin down the legal situation and Hackney Education say they haven't had an appeal to SoS before so haven't yet been able to advise us on the process. They say they will find out but time is tight in terms of induction days and I don't want to wait...

I don’t I’m afraid. I wouldn’t 100% trust the LA’s word anyway. Keeping trying with IPSEA and SOSSEN, it might be worth contacting an education solicitor too if you can’t speak to them.

My personal opinion but I’m not sure I’d want my child to go there if the school were so against it they had to be forced. Presumably he does have some additional needs if he has an ehcp and it’s hardly an incentive for the school to do their best, as if things go wrong it’ll just be “we told you so”. I know it shouldn’t be like this and it is discriminatory but not sure I’d want my child in a situation where they are the one trying to change the system. Secondary is completely different to primary and I know of kids who didn’t even need an ehcp at primary then not coping at secondary and ending up in a situation where they are not attending.

@Stracciatella

Has the EHCP been finalised naming this school?

Thanks for the feedback. It's tough in terms of 'forcing' the school. I do have those concerns. There is no perfect school though. No clear right path where we live. So we will try to have a conversation with them, and see if there is a sensible, harmonious way through. Yes @Ellie56 the EHCP naming the school is finalised.

@Stracciatella

Under Section 38(3) of the Children & Families Act (CAFA) 2014, you have a right to request an academy to be named on the EHCP.

The only reason the local authority can refuse the request is if:

• 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.

This is set out in section 39(4) CAFA 2014. Case law has established that the LA has to provide substantial evidence to prove why one of these reasons applies.

The LA can still name the school on the EHCP even if the school objects. Once the school is named on the plan under Section 43 CAFA 2014, it has a statutory duty to admit the child.

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

From this article here, it appears that the school will have to prove that the LA has behaved unreasonably in naming the school on your child's plan.

wslaw.co.uk/blog/academies-and-maintained-schools-challenging-being-named-in-an-education-health-and-care-plan/

From what you say though, it sounds as though it is the school being unreasonable, not the LA.

@Ellie56 Thank you, that legal blog is great. I'm going to engage some legal help now I think. I'll post in here any useful outcomes in case it helps others. Thanks again for putting all that info so clearly - really helpful.

Ellie do the school have to admit whilst they are appealing to the SoS? I don’t know how the LA could force them to admit since only the SoS can direct an academy to admit a pupil, LAs can only direct maintained schools to admit.

I think the important difference is while the school have a duty to admit under s.43 CAFA 2014 if the school refuse they can only be directed to admit by the SoS as they are an academy.

I don't think that's so - my understanding is that academies are subject to judicial review if they won't admit. I also understand that the Department for Education rarely upholds schools' appeals in these cases, though they might talk to the LA about funding more support to keep the school in question happy.

I think the school almost certainly does have to admit whilst its appealing to the Sos, because s43 CFA 2014 says they must admit if named and there is nothing about any exceptions whilst they appeal.

I know this is a year old thread, but wondering what happened in the end OP ?
Did school actually go through with the appeal & if so what was the outcome?

Asking as we in a similar situation now- LA have named our local mainstream (With package of support via PB) on our son’s EHCP despite school’s objection. Their objection letter was very poor argument without any evidence full of presumptions & concerns and frankly at many places discriminatory & not considering reasonable adjustments at all. LA felt it won’t stand on Appeal & agreed with me that it’s as a poor letter & named the school (plus they hadn’t consulted any other school)- essentially the SENCO has written in the letter he should be placed in a SEN school against parental wishes when there is plenty of evidence mainstream works well for him.

The school has refused to meet me & now apparently threatening to appeal against LA- they have no case as it’s school (SENCO) who have been unreasonable. It’s a LA maintained school not an academy & EHCP is by same LA. Just seems to be yet another tactic to avoid transition plan meeting as none of SENCO’s other arguments have worked when she actively tried to discourage me from applying !

Hi,
Sorry -- I meant to update this thread but everything got so fraught. The school did not go through with its appeal. However, it kept threatening to do so. This went on for many weeks and caused so much uncertainty for us (being June by then) that we ended up looking at other schools. Like you, we felt that all the grounds for suppose unsuitability/incompatibility were not substantiated or reasonable and felt discriminatory. So we sent a lawyer's letter to the school and they did respond by offering a place. If a place is what you want, this would be a good move, but is expensive. We have since been advised that it is very hard for schools to appeal successfully to the DfE and such appeals rarely succeed. An appeal does not affect the duty to admit if the school is named on the EHCP: so the school has to make appropriate transition arrangements if it is named, regardless of any appeal. Having said that, the threat alone can be powerful, and the feeling of being unwanted especially. For us the offer came so late in the summer term and was expressed so reluctantly, it was obvious they didn't want to admit our child and we decided we couldn't send our child there. I'm glad we made that decision. Ultimately, I wouldn't have been able to trust that the school had our child's best interests at heart. The next school we looked at was very welcoming and the whole vibe was so much better. I wish you luck with yours.

Thank you very much for the update OP. Glad to hear you ultimately took the right decision for your child & its seems to be working well for your DC & that’s all that matters.
I have looked at several schools & really there is no perfect school. So going to mainstream with funded one to one & package of support seems to be our best option & Our local mainstream school was initially welcoming & seemed best of lot - I had already asked LA to consult them after 2 visits - but it was my 3rd visit (where I was called to come meet HT & SENCO before La formally sent consultations) where it all went pear shaped as they seemed to have an axe to grind with LA for “placing too many SEN kids” into their school.
It’s a hard one really. Being in local community I know many who go to that school, some who work there & most staff are all very kind & compassionate- but unfortunately the SENCO is a difficult personality (known to be so among staff as well & doesn’t sound like well liked particularly) & essentially now throwing a tantrum because she was called out when she said discriminatory things in the meeting that went badly. She has handled whole process badly. HT is a bit of sit on fence when it comes to SEN & gives SENCO full reins & essentially she manages inclusion staff than any direct involvement with kids regarding plans etc
LA though have been very reasonable & actually tried to work with school. Will see what the meeting between La & school next week brings up - if still being obstructive will start looking at solicitors to send letter.