Can you consult with new settings while awaiting appeal on EHCP draft?

[Rufus27]

DS’s school has said it can no longer meet his needs. The Senco is super, I can’t fault the support he gets, but I agree with what they’re saying. We have an excellent EP report which recommends moving to a special school too (he is 7 and has ASD and developmental trauma).

His amended EHCP draft is due this week (4 months late). Going by our LA’s current reputation I am expecting the draft to need lots of changes, changes I suspect 0-25 will refuse to make. (Case worker’s manager has already told her to alter some of the wording, I assume because it is too ‘expensive’).

If we have to appeal eg provision or content, the current wait in our LA is just over a year. Can we still start the consultation process while waiting for the appeal, or - if we go to appeal - does this mean we won’t be able to start the consultation process to move schools?

Thank you.

When you receive the draft amended EHCP you will get to make representations and state your preferred placement. Schools can be consulted then before the EHCP is finalised. At this point if the LA finalise but don’t name your preferred school you should appeal section I as well as B&F. Once you have submitted an appeal further consultations can be undertaken if necessary.

The LA can consult once they have a draft echp as technically school placement should be finalised by 20wks. You can go and visit schools (some may not allow this without a plan in place).

Thank you both so much. That’s really helpful.

I talked to and visited lots of schools including special schools when we were still appealing a refusal to issue. I emailed them independent reports which contained recommended provisions for an EHC. Every single special school was able to discuss with me my child’s needs and whether they thought they’d be a good fit. Word of warning, I don’t know who your LA is but the 4 schools I spoke with all told me they have anywhere between 10-20 places and 80-120 applications for those places. Don’t wait for the LA to recommend a school - they will literally pick where there’s an open space - if there is one. Go and talk/call the schools. You won’t be able to tour while school is in progress but you will be able to get a feel for a place. From the layout/logistics, to the staff (they really all do try hard and are quite honest with parents on whether or not a child may or may not thrive there), to the curriculum - your LA can never do as good of a job as you can scoping out whether a school might be the right fit for your child.

Thank you so much.

We have already toured schools and selected our preference, but we can’t formally consult until his current EHCP is amended.

Given our LA’s track record, I suspect we will have to appeal the content so my query is if we can still formally consult while under appeal? Appeals are taking a minimum of 53 weeks, so I’m worried this will potentially waste time when he could have been on a waiting list if that makes sense?

Further consultations can made once you have submitted an appeal.

For EHCP admissions waiting lists don’t exist in the same way they do for admissions via the normal admissions procedures. Unless the school is wholly independent the LA must name parental 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 DS is incompatible. Obviously, there comes a point where the LA can prove this, but the bar is higher than many LAs admit, it is more than an “adverse effect”, “impact on” or “prejudicial to”. The LA can, and must, name the school regardless of the school’s objections unless the LA can prove one of the reasons above. Unless wholly independent when you need an offer of a place.

The school we are after is a specialist independent. The EP report points towards this school (bespoke curriculum, trauma informed, therapeutic setting, understands the needs of attachment and autism combined, capacity for curriculum to change according to his level of dysregulation etc.). Do you think we have any chance of getting this if an LA SEN school says it could also meet needs? I presume it will be (another) big battle?

Is the specialist independent wholly independent or s.41 independent? Section 41 independent schools have the same rules as state maintained schools, and you don’t need an offer of a place. For wholly independent schools, you need to prove the LA’s proposed school(s) can’t meet needs &/or it isn’t unreasonable public expenditure.

It is possible to successfully appeal even if the LA claim another school can meet needs.

Can you clarify if you have an issued EHC and you are talking about making amendments to it or whether you don’t have an EHC issued but your LA had agreed to issue and you’re currently reviewing the draft? I had perhaps misread your earlier post that stated “his amended EHC draft” because I don’t quite understand what you mean by later “current EHCP is amended”

Those are two vastly different things.

Also confused by the wording of one of the replies you got because it makes no sense as it’s worded … maybe Thomas can elaborate what they meant by “For EHCP admissions waiting lists don’t exist in the same way they do for admissions via the normal admissions procedures.” Kids with EHCs attend all sorts of schools, and the criteria differ depending on the type so this makes no sense.

Honestly, if you’re going for independent setting then an advocate is probably your best bet along with independent reports. If it’s a matter of setting, you may need your EP to visit your school and make an assessment, then serve as your witness in a tribunal. But if it’s just a matter of costs (as it is with most LAs) then an advocate can sort it for a 1/3rd or less of the price of a solicitor on your behalf

It does make sense. I didn’t say DC with EHCPs don’t attend all sorts of schools, did I? What I actually said was admissions, including waiting lists, with an EHCP aren’t the same as via the normal admissions procedures, because, well, they aren’t. The LA must name parental preference unless the LA can prove one of the exceptions in my pp. This applies to all schools except wholly independent schools. With an EHCP, on its own being full is not enough of a reason to refuse the name parental preference (wholly independent school excepted). The only type of school that has differing rules about admission is wholly independent schools.

For example, 2 DC want to start attending a MS school that is already at PAN and there is a waiting list. 1 of those DC has an EHCP and 1 doesn’t. The one that has an EHCP doesn’t go through the normal admissions procedure and has the school named as parental preference because there is no lawful reason to refuse, the fact the school is already at PAN is irrelevant, there’s no need to sit on the normal waiting list. The one that doesn’t have an EHCP has to apply via the normal procedures and isn’t offered a place but is added to the waiting list.

OP if you use an advocate choose carefully. It is an unregulated business and some can do more harm than good.

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Sorry, I wasn’t clear. He has had an EHCP since 2020. His annual review was last October when school said can’t meet need. 0-25 have agreed to amend but not yet shared the amended plan . In this time we have had four caseworkers. We have an excellent EP report , but I suspect they won’t use it (received our younger daughter’s draft last week - not a single report /assessment was referenced and they didn’t refer to any of her diagnosis so I’m not confident son’s will be any better) hence why I expect we will need to appeal.

The school we are keen on is an independent, not Section 41, sadly. It’s known for being particularly good with adopted children (ours are both adopted) whereas the maintained SEMH school in our area is dire with many parents taking their children out and I don’t think the local C and I school (which is great) would be able to meet our son’s additional attachment /trauma needs.

I wanted DS to go to a non section 41 school. I consulted with the school, arranged for DS to have trial days. When they offered him a place I was in my appeal window so named the school in the appeal paperwork. Had I waited for the LA to consult I don’t think DS would have got a place.