Solicitor/advocate for EHCP placement mediation/appeal (independent mainstream)

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DD has an EHCP and an offer from a mainstream independent school. I have been told (by a reliable source) that we have a reasonable case for getting the LA to name it as her school and pay her fees. I know this is slightly unusual but would like to give it our best shot. Can anyone recommend a solicitor or advocate who could support us in this? Currently no placement named in EHCP and LA has gone to ground - awaiting mediation. We’re in London.

Personally, I wouldn’t bother with mediation. Just get the certificate and submit to SENDIST. Appeal B&F as well as I.

You could look at Watkins, Birkett Long, Sinclairs, Simpson Millar, HCB solicitors and Watkins & Gunn. If you are up to doing some of the leg-work yourself, you could look at a direct access barrister. If you go down the advocate route, choose carefully. It is an unregulated business and, whilst some are good, some do more harm than good. And just for completeness, representation isn’t essential. Most parents don’t have representation. And if it is a choice between independent assessments and representation, you should always choose the latter because the representation can only work with the evidence available.

In the meantime, email the Director of Children’s Services asking them how they intend to provide the provision in F of the EHCP. If DC is compulsory school age, also ask them how they intend to provide a suitable full-time education.

Thanks so much, I'll look into these.

Our situation is that DD was assessed back in September, draft was issued in October and 'final' EHCP issued end of Jan - but just 'mainstream' was named in section I. Our EHCP coordinators keep leaving and the process appears to have stalled. In the meantime, we have changed our mind about preferred placement (she's been at an online school) and feel DD would fare best in a lovely small local independent mainstream school with great pastoral support as her needs are primarily in the area of SEMH. They are happy with her EHCP and have made her an offer.

We tried incredibly hard to make state mainstream work but three have said they can't meet needs. The LA was going to consult with APs/specialist SEMH schools but the independent mainstream would be more cost-effective than this. I got as far as securing the draft independently (my second rodeo - had a refusal to assess, SENDIST and refusal to issue a couple of years ago) and then had some help from an advisor at a local charity on the content but for this next stage I would like someone to hold my hand/let me know if we have a case (the charity advisor feels we do) to give us the best chance of success.

Obviously I haven’t seen your case, but from the small amount posted here, you have a case.

When the LA names mainstream as type, they should normally name a specific school too (MH v Hounslow [2004] EWCA 770). For a wholly independent school to be named, you need to prove the LA’s proposed school(s) can’t meet needs &/or it isn’t unreasonable public expenditure. And the LA must have regard to your/DD’s views/wishes. If the LA doesn’t concede, and they may well do, expect them to put another school on the table. Potentially at the last minute. So your case needs to cover that potential.

In the meantime, the LA still needs to be providing anything that is detailed, specified and quantified in F and, if DD is CSA, a suitable full-time education. If they aren’t doing this, email the Director of Children’s Services. If that doesn’t work, post back for next steps.

Thank you, that’s very encouraging. I am a bit worried about the prospect of them rustling something up when push comes to shove…

You’re probably one year away from a tribunal. Will they hold the offer for that long? Or are you prepared to pay the fees first and hope that the council will pay after the tribunal.

You need good evidence from an EP. Is the independent in a strong position? Is it a tiny school? Loads going bankrupt/ merge with boys schools.

Why do they think they can meet the needs of your child and 3 mainstreams don’t? (I’m glad they say they can but I’d be weary of independent mainstreams) also if they decide your daughter isn’t fitting in they can just end the contract. Does your daughter want to leave the online school and go back into regular school? Will she cope there with all the other children.

Also to bear in mind the independents generally longer hours and significantly more expected of a child compared to a state school which is at a lower level.

Also, some claim they are excellent at pastoral support even though they are dire

Good luck I hope the school works for your daughter

There’s still a wait, but OP would be able to request an expedited hearing on the basis of not being in school.

Thank you, lots of good points here. I'll try and answer as many as possible!

We are fortunate that we can pay the fees if need be, so we don't need to wait for the tribunal process to conclude before she moves. As she's not in a phase transfer year and is technically in a school, I don't know if we will get any sort of priority on the waiting list but we can live with that.

The school has an excellent reputation for pastoral care through various different sources - here, Good Schools Guide, word of mouth. Some of the things they suggested they could do (unprompted) really put my mind at rest. My eldest also encountered a student there (entirely unrelated circs) who volunteered (again unprompted) that they had ADHD and had found the school really supportive. DD doesn't actually need a huge amount of support, she just needs her modest support needs to be taken seriously when they arise and this has been the issue at her previous schools - we flagged them but they weren't taken seriously, or only by some staff, or too late. She says she doesn't mind a large school environment (from a sensory perspective) but the fact is she just gets overlooked or dropped down the priority list as everyone is so busy and overstretched.

DD is keen to go back to a physical school and was on a real high when she left the assessment. She said it felt very different from her first big school. Some of her peers at her online school have really suffered with long-term burnout - fortunately she didn't get that far and is now in a pretty good place thanks to time away from her old school and a great therapist, who is on hand to help with the transition (both directly with DD and providing advice to the new school). She has had some school years in the past where she has really thrived in the right environment (good teacher relationships) so I really think we need to give this a go, although I know it won't be plain sailing.

I think they are suitably secure - they are part of a larger group and have expansion plans. I am a bit concerned about the longer school day but hope the shorter terms will partly offset it.

It is worth thinking about what you would do if DD starts the independent school and your appeal is not successful. Would you be able to afford to continue funding the school?

You will be able to request an expedited hearing if DD is at the online school or if the LA fails to name a placement in section I between now and when you make the request. It is not guaranteed, but you have a good chance of an expedited hearing in either of those cases. It is much less likely if the LA names a placement, but you decide to make your own arrangements at the independent school.

Who is organising and paying for the online school? I hope it's the LA, as it is their duty to secure special educational provision and full time education.

A couple more solicitors to add to that list - Irwin Mitchell and Russell Cooke. For advocates, you do have to be really careful as there are some dreadful ones out there, but you could try Fiona Slomovic, Charlotte Burnell, Alice Marshment, Sarah Woosey or Tanya Williams.

We could pay the fees if need be so fortunately there is no risk of DD having to leave if the LA don't agree to it. Thank you @StrivingForSleep for the tips on expedited hearings, I'll certainly give it a whirl.

We organised the online school before applying for the EHCP and are currently covering the cost. We are tied in for another term (notice periods) and I fear if I asked the LA to pick up the cost now, they would try and move her to a cheaper alternative provision, which would be too disruptive when she has a big school move on the horizon. (Asking the LA to name the independent school in section I appears to have finally galvanised them into action and they have, unprompted, now offered to set up alternative provision until a physical school is sorted - not sure what they think she is currently doing, it is clear in all her paperwork!)

Thank you @AuntAgathaGregson for the suggestions of law firms and advocates. I did approach Fiona Slomovic but sadly she is too busy. (Have worked with Tanya before, on the first unsuccessful application.) In case it is helpful for anyone else looking for an advocate, I recently discovered this resource with reviews of advocates and have had some useful pointers from some of those so will probable pursue one of them.

You have nothing to lose by asking the LA to fund the current online school as the alternative provision. Even if they offer something else, you could argue that isn’t suitable. And if all else fails you can still decide to make your own arrangements and continue to fund the online school.

Don’t forget the LA is also responsible for anything detailed, specified and quantified in F of the EHCP.