EHCP support thread no. 4

[Phineyj]

We've nearly filled the thread again, so here's a new one. Welcome everyone: newcomers, people stuck in the process; battle-hardened veterans of many years...

Here are links to previous threads:

EHCP support thread - www.mumsnet.com/talk/special_educational_needs/4834986-ehcp-support-thread

EHCP support thread no. 2 - www.mumsnet.com/talk/special_educational_needs/4989146-ehcp-support-thread-no-2

EHCP support thread no. 3 - www.mumsnet.com/talk/special_educational_needs/5077140-ehcp-support-thread-no-3

Can you take the SALT on offer, top it up privately and then get that part amended at annual review this time next year?

the other option is to wait until AR after term 1 of secondary and work with the Senco to say it's needed. I suspect the timings may end up similar.

The thing to consider with this is, there’s no guarantee the LA will agree to amend following the first AR even if the SENCO agrees SALT is required. You may still have to appeal.

If you have to chase the LA to begin the AR, chase the LA for their decision and chase the LA to finalise if they propose to amend, it may well be Easter of Y7 or later before you have the right of appeal. Then still have to wait for a hearing. And by then you may need updated assessments. By the time you have a finalised amended EHCP post appeal, it may well be the summer of Y8.

@BrightYellowTrain

Please can I ask how ‘cannot meet needs’ works?
The situation currently feels like the school are not supportive, but the LA are supportive.
It feels like his current class teacher, SENCO and head are against his placement and supportive of each other.

It feels like the LA are supportive of me in my conversations with them.
The head moved to DS’s school after her last school went from OFSTED ‘good’ to ‘needs improvement’. SENCO is deputy headteacher without a class.
They LA wanted to know my feelings and asked a few leading questions. They ‘sort of’ expressed some dismay about the school.
I know - from his class last year - that two children were asked to only attended half days. I then think one child was then excluded, and I haven’t seen the other child since returning to school this term.
The LA must know this too, and perhaps not be happy about the school’s actions here.
Thing that is ‘saving’ DS - I think - is that he isn’t disruptive. The SENCO describes him as ‘passive’ (a word I hate).

My question is:
If the school state ‘cannot meet needs’ could the LA overrule this automatically?
Or would it need to go to judicial review?
If the school state ‘cannot meet needs’ would they just turn DS away if I attempted to bring him in? Even if I felt they’d made this decision unlawfully?
Thank you SO much.

@brightyellowtrain you're right of course. I've got a bit towards the end of my energy (and cash) with it really and DD2 needs attention also. If it's not going to be massive amounts of work to appeal this one thing I'll give it a go. Otherwise the academy trust does have an SLT who comes in anyway so I can see if she can get that provision up until the end of primary, we have had a term already. The OT is more urgent and important than the SLT at the moment.

@Macramepotholder an appeal does take time and energy. And it is, of course a valid decision not appeal. If you have the evidence already, if you appeal now, you won’t need to spend money on more. Whereas, if you wait, it is likely you will need updated evidence. That might cost you.

@RibbyJumper it isn’t as simple as the school saying they can’t meet needs. If the school 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.

What you have posted doesn’t reach the high bar for that. Because the school is not wholly independent, they do not need to agree to being named. The LA can, and must unless they can prove one of the above, name them even if they object. The LA does not need to pursue JR to name the school against their will.

If the school is named, they must admit. They cannot turn DS away. That would be an unlawful exclusion. The school can be forced to admit if they try to refuse.

The school could ask the Secretary of State to determine if the school should have been named/the LA has acted unreasonably but the school must still admit in the meantime and can be forced to if they refuse. The SoS’s decision is not above the FTT’s decision if a parent appealed either.

The school could also, in theory, challenge the decision via JR, but that is extremely uncommon compared to the number of times a school is named against their will. It is also unlikely in your case because the school is unlikely to be able to prove the LA acted unlawfully. And the school will know that.

Is it normal for an educational psychologist to do telephone appointments with me and preschool to complete there report for EHCNA instead of going into school to see my DD? Everyone else’s evidence needed to be back by the end of December and the educational psychologist called me last week to arrange a phone call meeting with me because her report needs to be back by the end of January ( they are working 6 weeks behind ) it sounds like she has already read through all the paperwork but wants to ask us questions to make it water tight for when it goes to panel. I was hoping she would visit preschool to make her own report instead of what me and preschool have already told the LA.

@Cinnamoncupcake we were offered the choice between being on the shorter waitlist for a remote assessment or being on the longer waitlist for a face-to-face assessment. I went for face-to-face as feel it’s more thorough.

I don't think it's much of an assessment if they don't observe the child in the educational setting and/or (ideally and) do a full range of cognitive tests.

Sadly there was no comparison whatsoever between the LA EP assessment which didn't involve ANY tests or assessments, and a through independent assessment which for the first time produced a clear view of DC and their idiosyncratic needs. The LA EP was very senior and seemed to consider their role as rationing rather than individual assessment. They also included factual incorrect information and refused to engage in correspondence about the need to correct it. Not very impressed. Other parents locally had better experiences with more junior EPs though.

I found it reassuring to have the cognitive testing (done at our expense by a retired LA EP). It showed DD is mostly average by national standards (minus a bit of creativity in spelling).

It was very hard for me to judge that in a competitive 11-plus-y environment.

Sadly, a telephone conversation isn’t uncommon, but it is not acceptable, IMO. I would push for an in person assessment.

@NonplasticBertrand is right, a good comprehensive independent EP assessment is worlds away from LA reports in 99% of cases.

If you choose for your DC’s current mainstream setting to be named during the phase transfer review process and then when the EHCP is amended and another final issued, if you then decide you want a special setting to be named (as by then you would have viewed a wider range of settings and had more time to see how your DC is progressing) and you are still within the two month appeal window - is it possible to appeal section I?

Or can you only appeal section I if, for example, you requested a special setting in the first place and then the LA named mainstream?

If the only official parental preference mentioned in the phase transfer review paperwork is the current mainstream setting, and in the paperwork they say they can currently meet need, are they still officially consulted? Can you still ask for a special setting to be consulted alongside the current mainstream setting? Or is this only possible if you mentioned a special setting as a preference in the paperwork?

Sorry forgot to add, I’m aware that appealing section I at that stage (if possible) would mean a change of setting (if appeal is successful) may not be until September 2026 due to the wait time for a hearing etc.

@Ponche yes, you could appeal section I. If you do that, you should carefully consider B&F too because section I is the logical conclusion of B&F.

When you get the draft, you can state your preference. That includes special school if that is your preference. This doesn’t have to be the same as the school you discussed at the review meeting. You can ask the LA to consult with more than one school. Although that is risky if you want SS and one of the ones you want consulted is a MS.

During phase transfer, the EHCP must be amended, so if the current school is to be named, they must still be consulted. Even if it isn’t your preference, the LA is likely to still consult them. After normal ARs rather than for phase transfers, placements, including the current one, aren’t always formally consulted because EHCPs aren’t always amended.

Phase transfer appeals are prioritised. You are unlikely to be waiting until September 2026.

@BrightYellowTrain thanks so much, that all makes a lot of sense.

’You can ask the LA to consult with more than one school. Although that is risky if you want SS and one of the ones you want consulted is a MS.’ This is my worry and which is why I was thinking perhaps I should just wait for the annual review (in June 2025) and request a special setting then. As at stage I would only be requesting for special schools to be consulted.

If I had my way, DD would continue in her mainstream setting and start reception there in Sep 2025. But mainstream will not be suitable beyond reception and so by Sep 2026 (start of Year 1) or Jan 2027, I would hope she is in a special setting and I’m trying to work out the best way to try and make this happen e.g. appeal within two months of EHCP being amended/finalised either after the phase transfer review (took place last month) or the annual review (taking place this summer).

School can meet need for now but have made it clear (in both the witness statement for the upcoming B/F appeal in June 2025 and also in the phase transfer review paperwork) that should the appeal go in my favour, they may be unable to meet need (due to the amendments I am seeking as per the private OT/SLT reports). Even if they could meet need if the appeal went in my favour, I would still prefer a special school for KS1 onwards due to DD’s needs.

DD would benefit from a special school in reception, but I don’t feel confident making this decision yet as I need to visit a wider range of settings to ensure I am making an informed decision. And for now I feel she is being well supported in her current setting and is making progress in her own way.

@Ponche if you had a phase transfer review in Dec 2024, the LA may not hold an AR until Dec 2025. LAs should consider holding reviews every 3-6 months for under 5s, but the law only mandates at least every 12 months.

Personally, if you want a special school for Y1 onwards, I wouldn’t wait to pursue that.

@BrightYellowTrain thanks for letting me know, I wasn’t aware of that. The EHCP was issued in July 2024 and it says the annual review must take place by June 2025 so I just assumed that would happen.

I will make sure I appeal sooner rather than later. Can you ask for schools you have not yet visited to be consulted?

Can you ask for schools you have not yet visited to be consulted?

Yes, you can.

Assuming it was undertaken correctly, the phase transfer review is the same process as the annual review just with the added deadline to finalise by 15th Feb (for nursery to primary phase transfers), so restarts the clock as it were.

Thanks again @BrightYellowTrain
That’s so useful and reassuring.
I’m just so shocked that it’s now 6 months since his EHCP review and there was no amended plan in place. I assumed it was in place.
The School SENCO said ‘this is the norm’.
But surely this isn’t normal or acceptable?
And now with your help, something is being done.

And the only reason something is now being done, is because you helped me piece the jigsaw together and I’ve chased the LA.
At my son’s preschool, the SENCO was so informative. She’d approach me, email me, ensure I had the right information. It felt like she genuinely cared and wanted the best for DS. She did all this and was also teaching and hands-on with the children.

I think it’s so bad that this ethos is not the same now DS is in primary school. This is a SENCO deputy head with no class teaching commitments.

Why was she not on top of the fact that DS had no amended EHCP in place for 6 months? Why is she just accepting this as ‘the norm’?

@RibbyJumper it isn’t acceptable, but it is the norm unless parents force the LA to act.

ensure I had the right information.

This is more uncommon than you think. A good SENCO is worth their weight in gold.

Apologies in advance, this is a long one! Everything feels very tangled at the moment and I'm not sure what to do next.

Neither of my DC have returned to school since Xmas break. 🙁Last night we sent a letter to the LA requesting s.19 AP and, surprisingly, got a reply this morning. But everyone seems to have their own idea of what happens next:

• The LA say the school has to arrange and pay for the AP and ensure section F is being delivered.

• School say the LA has to organise and pay for any AP, that it can't come out of EHCP funding and that the SEP in F can only be provided in school.

• SENDIASS say it's the school's responsibility and if the funding isn't enough, they should apply to the funding panel but also they say it's not necessarily true that provision in F can only be provided in school (I'm guessing this is down to the wording). SENDIASS also said school should refer to early help, put in an application to the medical panel, bring in someone from the LA's autism advisory unit and do an early review. However, they didn't know what s.19 was when I mentioned it, spoke over me a lot and told me I shouldn't trust information I see on IPSEA, so I'm not sure how much to trust this particular advisor.

We were considering early reviews but then thought it might make sense to wait as our appeal hearings are in May and we don't want to complicate things (@BrightYellowTrain I think you also suggested focusing on the appeals instead of early reviews). Our SENCo says the ARs should be in April because the plans were finalised in May last year, so we could still end up with reviews happening around the time of the tribunal hearings.

Alongside all of this, we've been exploring a change of setting. One ASD unit said can't meet needs/incompatible with resources and education of others -- I know we could still fight for it if we wanted but I don't know how likely it is to win a place in a unit compared with appealing for a MS place. The other school being consulted is an independent school that takes about 40 autistic kids and has a lot of places. Interestingly, SENDIASS was the first to point out that it's not actually a SS, it's considered 'independent, other' and has not had an OFSTED inspection. I know someone with a child doing GCSEs there and they are happy with it. They live in another LA, though, and SENDIASS say they don't think our LA will name it. Other than these two schools, there aren't any other good options (only big MS secondaries).

SENDIASS seemed to think we wouldn't be approved for a SS because our MS school hasn't done everything it can to support the kids.

I think it's true they haven't done enough, but even if we are successful in tightening up the language of sections B & F perfectly at appeal and our MS school gets adequate funding, it feels like we'd be taking a gamble as to whether or not the situation there would improve significantly. At the same time, I'm actually not sure if we should definitely be pushing for SS either. I think EOTAS would be great but probably be hard to get without first trying another MS or SS setting. DC's EBSA/autistic burnout is quite bad right now, but I don't know if we could get a medical professional to say no school is appropriate. And there is a part of me that wishes so much that my children could cope in MS because there are a lot of positives they've got out of it already and I feel incredibly sad that their options are so limited.

We recently asked our SENCo about a hybrid option, whereby DC attend some classes and 1-2-1 provisions at school but do online learning for the rest. They seemed open to this at first but then said they couldn't do 'long-term reduced timetables' because of funding and because they have a waiting list for the school; they're also reluctant to reduce DC1's GCSE load. DC1 (Y9) has been on an 'informal' reduced timetable since November (ie, they spend a few periods a week in the SEN hub) but has reached the point where they can't attend. School said they couldn't reduce DC2's timetable saying they try not to do that in Y7 -- with the result being that DC2 can no longer attend at all.

It all seems like such a complete mess and I'm feeling really overwhelmed and unsure how to proceed.

@SpaceInvader321 the LA is responsible for ensuring the provision detailed, specified and quantified in F is provided. This is an absolute duty under section 42 of the Children and Families Act 2014 and is non-delegable. Provision in F doesn’t have to be in school.

The LA has a duty under section 19 of the Education Act 1996 to ensure DC receive a suitable full-time education where they wouldn’t receive that unless such provision is made for them. Your DC are not receiving a suitable full-time education. The LA must ensure they do. It is the LA’s responsibility.

The school should have already made a sickness return to the LA as per the School Attendance (Pupil Registration) (England) Regulations 2024. Seeking advice and support from the specialist teaching service and early help is a good idea, but not instead of DC receiving s19 provision and anything in F.

For most units, the mainstream school is named in section I and the unit provision included in F. This is because most units are not separate registered institutions.

You don’t need multiple failed placements for EOTAS/EOTIS. You do need evidence.

Part provision in school and part elsewhere is possible. To guarantee it, you would need a watertight EHCP.

Reduced GCSE load can also be possible.

It doesn’t matter the school isn’t an independent special school. Neither does it matter that they haven’t had an OFSTED inspection since opening (they should have had a pre-registration one).

Don’t let SENDIASS put you off seeking alternative placements - be that an ARP, SS, MS or EOTAS/EOTIS.

Personally, I wouldn’t go for an early review for reasons previously discussed. If the LA would agree amendments via that route, they would concede the appeal.

@BrightYellowTrain

Agreed - I think you’re worth your weight in gold too.

I realise this is purely anecdotal, but I worked in a fairly small independent school recently where there were 4 senior managers on a very high wage with no teaching commitments. Then a fifth person joined in a more managerial position (initially with teaching commitments) was extremely friendly with the other senior managers, but then rarely taught - and was on the computer/in meetings for approx 80% of the day.
The school was really struggling for money and a lot of the teaching/very hard working staff were very, very disgruntled at the lack of performance by the senior managers.

I may now just be applying this situation to DS’s school, but I would have thought a SENCO with no teaching commitments would really be ‘on top of their game’. It’s a 3 form entry, no nursery and KS1 only.

I was very active last year with fund raising, but I’m now thinking I don’t want to do this anymore because I don’t think I agree with how funding is being allocated. I’d rather donate to IPSEA!

@RibbyJumper a non-teaching DHT who is also the SENCO will have other duties, too. For example, they may be the designated teacher for LAC/PLAC pupils and the DSL, which, depending on the school’s demographics, could easily take up far more time than the teaching commitments of a DHT with teaching responsibility. Not that it excuses anything, but it is more complex than just looking at teaching commitments.

If you ever want to donate to a SEN charity other good charities are SOSSEN and Parents in Need. SOSSEN do a similar job to IPSEA. Parents in Need is a charity who funds independent assessments for SENDIST. Not that I am saying anyone has to donate, but if anyone ever did want to they would be grateful.

Any resources anyone know of which highlight the la responses during appeal? Particularly around timescales and when they make errors? Is there anything which shows their legal responsibilities while awaiting the final hearing date? Thanks all