School have said no to consultation- what next?

[LettersOfTheAlphabet]

DS 9 is currently out of school (on roll but not attending a specialist independent). Asked LA to consult a nearer independent SEN school and they responded last week to say no because:

1. they are full
2. ds primary need is listed as asd with secondary need semh and the cohort has majority semh so they are worried about compatability.

This is my preferred school for ds and only one of 2 possible options. It is the only option within borough and half the distance of the other option. Can I request that the LA go back to the school? I'm so worried.

If they’re independent you can ask but the LA can’t direct them to offer a place.

from experience I’m inclined to agree with the school.

Is the school wholly independent or a s.41 independent? If it is a s.41 independent they can be named, and therefore must admit, even if they object.

In the meantime, if DS can’t attend school, is the LA ensuring DS receives a suitable, full-time education and anything detailed, specified and quantified in F?

@SearchingForSolitude it is a s41 school.
LA are saying that as he's still on roll the school are responsible for his education. They are sending work home but ds is refusing to do it.

The rules for s.41 independents are the same as they are for maintained schools. If it is your preferred school the LA must name it 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.

The bar to do the above is higher than many LAs and schools admit. Being ‘full’ is not enough of a reason on its own to refuse to name your preference. The LA has to prove the school is so full admitting DS is incompatible, which is a higher bar than LAs admit. Unless the LA can prove one of the above they can, and must, name the school even if the school objects. If the LA refuse, when the LA finalise and you have the right of appeal you can appeal.

The duty to provide education for those unable to attend school lies with the LA. Work sent home does not discharge the LA’s duty. Email the Director of Children’s Services reminding them of their duty under s.19 of the Education Act 1996. If that doesn’t work email again threatening judicial review. Then, if that fails you need a pre-action letter - SOSSEN can help with this but there is a wait so you may what to look at somewhere else. If anything is detailed, specified and quantified in F the LA has a duty to ensure this is provided too under s.42 CAFA 2014.

I'm in a similar situation OP. It's tribunal for me. I submitted lots of evidence for this. Gov.uk site will list the school and number of places, but I also looked at curriculums too and what would suit son's needs.

Question for solitude - do you know when LAs tend to concede a section I appeal if they do? We have submitted with heaps of evidence for ours. SEND panel stated son needed a special school but named his mainstream as there were no places in SSs consulted (incompatible with education of others). I'm not sure how they can argue against that keeping him in mainstream is appropriate as his level of SEN is very high, but wondered how long they can really drag this out for. Our hearing date is December 😫but they have to respond in early March and submit evidence in May and i will be submitting a SEND7 form. Asking you as you normally have the knowledge!

@Updownleftandright as well as section I are you appealing B&F? You should, they will be written in a way which supports the school the LA has named in I.

There’s no one set answer unfortunately. If they are going to concede sometimes LAs will concede as soon as they become aware a parent has or will appeal, other times just before their response is due, other times just before the hearing (or even on the morning of the hearing!).

no places in SSs consulted (incompatible with education of others).

The bar for this is high. It is more than an “adverse effect”, “impact on” or “prejudicial to”. Being full on its own is not enough of reason to refuse to name your preference the LA has to prove incompatibility.