EHCP NO SCHOOLS!

[lollilou2]

Went to tribunal to get my daughter’s EHCP, we consulted SEN schools which have came back with no room. In the LA’s view, her needs could be managed in mainstream (with small classes of less than 6), but the local mainstream schools have came back as full too. LA has stated that transport won’t be available to be able to look further afield, and I don’t drive.

i pulled daughter out to Home Ed while we appealed the LA for failure to issue EHCP, so now her EHCP has been finalised her placement is down as Home Educated.

Firstly, make it clear in writing to the LA that you are not EHE and they need to make provision for a full-time education and anything detailed, specified and quantified in F.

Alongside this, appeal the EHCP. Once you have appealed, you can request the hearing is expedited on the basis DD is out of school.

For non-wholly independent schools, the LA must name your preferred school 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 DD is incompatible. The bar for that is higher than many LAs and schools admit. If the LA can’t prove one of the above, they can and must name the school even if the school objects. You only need an offer of a place from wholly independent schools.

Ignore the LA about transport. That is not correct.

Thank you. I’ve sent a strongly worded letter to director of children’s services, send team and caseworker explaining if they can’t find her a suitable school, then alternative provision will need to be provided. I plan to appeal section I (since they named EHE) and to name a special school that provides to children from nursery - sixth form.

my worry is, the only school they’re interested in putting her in is the school I had to take her out of due to school trauma. They see no problem with this school, plus it has space and she wouldn’t need transport, even though Tribunal pointed out multiple failings when they ordered the LA to issue an EHCP. It would destroy her wellbeing if she was forced to go back there, which is making me hesitant to say I won’t EHE anymore.

thank you for your help, I’m hesitant to try out local SENDiass as they work closely with the LA.

You should appeal B&F as well as I. This is because section I is the logical conclusion of B&F, so if they are poor, as they so often are, you increase the risk of the SS not being named.

Not EHEing doesn’t mean DD has to attend the MS if it isn’t appropriate. If you are EHEing, the LA does not have a duty to provide provision.

Thank you. I’m just worried if I stop home education, she’ll be forced back into the same mainstream she was pulled out from.

As I said, not EHEing doesn’t mean DD has to attend the MS if it isn’t appropriate.

If you EHE the LA has no incentive to name your preferred SS.

But who decides if it’s appropriate? The LA certainly think it is, even with 2 years EBSA

Ultimately, the court.

Even if a MS is named in an EHCP, only parents can register a child at a school.

And even if a child is on the roll of a school, you don’t have to send a child if they are unable to attend. You can then pursue alternative provision under section 19 of the Education Act 1996 and enforce it via judicial review if necessary. It doesn’t mean you have to force a child to attend school if they are not able to.

Thank you again for toy advice. Response from head of children’s services state that in their view, prior school child attended is suitable. If I decide to end EHE, this school will be named unless I consult with another mainstream, but travel will be my responsibility.

I plan to appeal, but I’m still waiting for the finalised EHCP and right to appeal letter. It’s been over a week now.

Even if a mainstream is named, if DD is unable to attend, the LA still has a duty to ensure she receives a suitable full-time education. This can be enforced if the LA refuse. But they don't have this duty if you are EHE.

Is the LA in breach of the timescales post the refusal to issue appeal?

Unfortunately I tried that when she was enrolled in school and experiencing EBSA. Because I had no proof eg doctors letters, then they said they didn’t have a need to give alternative provision, and the school involved the legal intervention team to start process to fine me.

They’re not in breach of timescale but they do like to drag their feet, there’s been plenty letters they’ve said they’ve sent which I’ve never received and have had to chase up.

If the LA is not in breach of the timescales, in that aspect, they haven’t done anything wrong.

The Regulations (now it is School Attendance (Pupil Registration) (England) Regulations 2024) make it clear where a pupil is absent because they are unable to attend due to sickness the absence must be regarded as authorised. DfE’s statutory attendance guidance also states absence due to illness must be coded as I and unless the authenticity of the illness is genuinely and reasonably questioned must be authorised. Authorised absences do not lead to legal action. If the school failed to authorise the absences, you could have challenged them, via legal means if necessary.

The LA should consider all evidence, even if medical evidence isn’t available. The LGO is perfectly clear on this. They are also clear there will be cases where the LA does not have all the evidence they would like or there will be no or conflicting evidence.

For example, “Another problem was the lack of medical evidence to explain why Fareen could not attend school. The council decided not to provide alternative education because there was no evidence to justify Fareen’s absence from school. This was wrong. While councils must take account of any available medical evidence, they must make their own decision about alternative education, even when there is no medical evidence."

And this LGO report (pg11) criticised the LA for stating they did not have a responsibly to provide education because there was no medical evidence as that shows “a lack of understanding of the relevant legislation”. “Firstly, a lack of medical evidence should not stop a child from accessing education; nor does it negate the Council’s duty to provide the child with a suitable education.” And “Even without medical evidence, the Council had a duty to arrange suitable alternative education provision for Y under the category of ‘otherwise’.”

The statutory guidance ensuring a good education for children who cannot attend school because of health needs is also clear. It states if medical evidence isn’t quickly available, the LA should “consider looking at other evidence to ensure minimal delay in arranging appropriate provision for the child”.

Ultimately, it isn’t the LA making the decision on alternative provision if you pursue legal action.