Section F Appeal. Why would LEA consult a school who plead they are at capacity?

[WaitingForABigBreak]

An appeal is in progress for sections I, B and F but the final hearing is not for ages. I’ve requested a specialist placement for my autistic DC who is academic but can not attend a MS school.

The LEA approached a special school out of borough but the placement was rejected as there were no spaces available.

The LEA have now approached an in borough special school who are also full and are adamant they have no places available. It’s going to take two weeks to be rejected and then we will be back to the drawing board.

Is there a reason why the LEA would do this knowing they are full? Especially after the out of borough school rejected the consultation for the same reasons?

Is it easier for an LEA to fight for a place at one of their own schools than one from a different LEA?

The reason? Protocol

simple as that

they are required to do this

@Ursula82 That’s what I suspected but it is time wasting if DC has no chance of being admitted because they are full.

Yes but no point questioning it - they have to tick the box to move on to the next stage

LAs often name their own borough schools as its less cost. They've put my son in unsuitable school just because they don't want to pay for transport going to another borough's school and don't want to give funds to another school thats out of borough. We are appealing and have a tribunal booked

I would like the in borough school to be named but the school have expressly stated they are full. It appears pointless for the LEA to waste a further two weeks knowing they are full rather than look for an alternative.

Unless the school you want wholly independent 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 high, higher than many LAs care 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 they can prove one of the reasons above, so if your preference isn’t wholly independent do push back. The LA can also consult more than one school at once.

While you are waiting the LA providing anything specified and quantified in F and a suitable full time education if DC is CSA.

@JustKeepBuilding Thank you. That is good to know. The school is an LEA run school. As is the other school they consulted out of borough but then said “sorry they’re full” and that was that. However, now we’re at appeal stage , I’m hoping they will push the current consultation to take DC.

@JustKeepBuilding what is CSA please?

CSA is compulsory school age. Pupils become CSA the term after they turn 5. At that point the LA have a statutory duty under s.19 of the Education Act 1996 to provide a suitable, full time education for those unable to attend school full time. This is in addition to their duty to provide anything specified and quantified in F of the EHCP under s.42 CAFA 2014, which applies regardless of age.

It is worth emailing the Director of Children’s services pointing out as your preferred placement is covered under s.38(3) CAFA 2014 they must name your preference unless the LA can prove one of the exceptions in s.39(4) CAFA 2014, and being full on its own is not a lawful reason to refusal.

If you haven’t already looked at IPSEA and SOSSEN they have lots of helpful information on their websites and have advice lines. If you need independent reports for your appeal and can’t afford them Parents in Need can sometimes help fund them. Check whether you are eligible for legal aid too.

Thankyou very much! I was not aware of any of this. I’m going to copy your post down so I know what to hit back with when the inevitable rejection comes in.

I will look up IPSEA and SOSSEN.

If the LA aren’t providing what is in F now &/or aren’t providing s.19 provision if CSA you should email the Director of Children’s Services informing them if they don’t provide it ASAP you will be forced to begin judicial review proceedings. Often the threat works, but if it doesn’t contact SOSSEN for help with a pre-action letter.

Section F is very vague and there is not much in that section to be provided. We are appealing this as well as placement .

This whole subject of special schools being full is an interesting one - I work in a special school that is currently full (it's always full) and by the end of the academic year we will be "overfull" which means that we will have had enough pupils we have been forced to take through tribunals that it will be getting to the point where several of the classes will have more than 13, which is that gold standard for a specialist setting, and we start eyeing the roof and pondering whether we could build another classroom on there 😉

When prospective parents phone up asking to look around or how to get a place, I always say not to let the fact we are full or that other schools are full to put them off, and that they have to push through this barrier because there's a time of year and a phase of education where you will find all special schools are full. We are already full for next academic year. But they will slip another couple in last minute, because kids need to be educated.

Anyway I always say don't let it put you off. I've seen a load of consults come through, the school says no, but you have to go through that process to get to the stage where the LA could force admission. If it was simply a case of "sorry everything is full" then SEND education would be on a first come first served basis which isn't right.

I also tell parents to be prepared to name a school that they haven't necessarily had the chance to look around - if you get to the point where an offer is likely or it goes to panel then the school will want to meet the child and parent and possibly go to observe them in their current setting and you will have the chance to say "actually this school is not for us" if you found it probably wasn't likely to be suitable.

But in a nutshell, if the LA didn't consult with a school simply because it was full, there would be far too many kids in the wrong school for them. There probably already are.

@TattyDevine Interesting, thank you. We are in appeal stage and the LA have consulted with the full school whilst we are in appeal. Is it more likely now that the LA will allow the admission whether the school agrees or not?

I have a letter stamped and ready to send (based on @JustKeepBuilding advice) if I’m given the “sorry, we’re full” response.

Hi @WaitingForABigBreak

The school, when responding to the consult, are likely to do so on either the grounds that the school is unsuitable for age, ability aptitude or SEN;
or Admission is incompatible with the efficient education of other pupils and they have to provide reasons why no steps can be taken to overcome incompatibility.

A high threshold legal test applies when considering whether there are "no steps that can be taken to overcome incompatibility". The person responding to the consult would have to provide full and comprehensive details if they felt this applies.

Whether they can prove they are too full will depend on how full they are. If they really are busting at the seams in that particular year group, to the extent where it would have a detrimental effect on the pupils already there, that will be accepted by the LA. The legal threshold is high but it is easy enough to meet that threshold if numbers are over in that year group. There's only so many they can keep squeezing in before the ratios are off, they don't fit in the classroom etc as special schools have a different model for what a class looks like.

I'd also consider the possibility of whether they could argue that the school is unsuitable for age, ability, aptitude or SEN during the consult process. I don't know what 2 special schools you have been looking at but in your first post you say your autistic DC is "academic but cannot attend a mainstream school". I'd be interested in what category of special school you are looking at - are they MLD, SEMH, probably not SLD...? This is more likely to predict the outcome than the "full but exactly how full" issue...

The LA are more likely to name a placement they have previously refused to name if the parents appeal. Although, unfortunately, too many parents are forced all the way to a hearing.

to the extent where it would have a detrimental effect on the pupils already there, that will be accepted by the LA.

Case law shows the bar is higher than that. It is more than an “adverse effect” or “impact on” or “prejudicial to”. Being over numbers in that year group alone wouldn’t be anywhere near enough. Although many LAs and schools won’t admit that, and LAs will force parents to appeal.

It is the LA with the responsibility to prove incompatibility and if the LA can’t prove that they can, and must, name the school even if the school object.

@TattyDevine with the further information in your post, I realise my suggestion to let the parents know on the other thread won’t be appropriate and why you are in a difficult position.

Thank you both again for your replies. The school currently in consultation is a specific ASD supported school who take DC right up to A Level. For this reason, I don’t think they could respond to say they can’t meet my DC SEN, age , aptitude etc.

The class sizes are currently around 10 per year group so it may well be declined on capacity. Or the authority will just proceed to a tribunal because it will be cheaper .