EHCP states class size of 12 - LA has named mainstream for secondary??

[OlympusMons]

Hello, I wonder if I could ask a question about setting, as I am in a bit of a tizz!

My DD is in year 6 of a local mainstream with 1:1 support. Current school and all reports (EP, SLT and OT) said she wouldn’t cope in mainstream secondary or ARP and recommended specialist. Her EHCP was amended for secondary transfer and provides for class sizes of no more than 12.

The only specialist in our borough couldn’t meet needs as it is for children with moderate learning difficulties which she does not have. Our local mainstream said they couldn’t meet needs and she’d be vulnerable in that setting. We applied and my DD was accepted by an independent out of borough specialist.

However, our LA put “mainstream” as setting in section I (no school named) and is consulting with an ARP in our borough which is within a very large mainstream school. We are appealing. We can’t see how either mainstream or an ARP in a massive school is possible with an EHCP that provides for a class size of no more than 12. Our DD would have to stay within the ARP permanently (isolating/ not full access to the curriculum) or would have to also go into mainstream classes, which obviously wouldn’t have a class size of 12.

Are we missing something? Are they going to try to pretend/engineer that the mainstream element will always be in small groups or something?? My head is swirling as I just do not understand it and it feels like a massive trick that I (still!) haven’t worked out. We’re awaiting consultation response from the ARP.

Has anyone experienced this before eg have a setting named which is at odds with the EHCP in this way? It certainly doesn’t work for mainstream and also wouldn’t align with the purpose of the ARP - where children spend a lot of their time in the ARP but also need to be able to spend time in the mainstream (which she wouldn’t cope with).

Sorry this is so long. I am wondering if we have inadvertently messed everything up. We didn’t dream they would name mainstream/unit having agreed (a bit too readily on reflection) to small class sizes in the EHCP. I guess we were very naive!

Thanks very much for any advice/words of wisdom that can help my panic.

I have seen LAs try to rely on ARPs/SRP/units to deliver small class provision even when the ARP isn’t designed to provide 100% of provision in the ARP.

Is the exact wording around class size watertight? Or is it vague and woolly? Some examples of woolly wording in relation to class sizes include ‘opportunities for’, ‘would benefit’, ‘likes’ (yes, that is a real example!), ‘where possible’, ‘where required’… and sometimes the wording means it doesn’t actually mean small class size but can be provided within a smaller group within a larger class.

Ask the school questions in writing such as, what subjects do they set for, what are the class sizes for the lower sets, do they run a nurture group… In some schools the bottom sets will have very small class sizes. I have seen LAs try to use these lower sets to provide the small class sizes in EHCP even when the lower sets aren’t appropriate for the pupil in question. This could be especially relevant in conjunction with part of DD’s time spent in the ARP. Similarly, you need to know if the school has a nurture group (whether it is called that or not). These are often smaller class sizes. If you haven’t already collected written evidence of how often DC are expected to integrate into MS, do that too.

Is your preferred independent wholly independent or a section 41 independent?

Are you appealing B&F as well as I?

Have you considered if you need any further evidence?

When LAs name MS as type case law dictates they should normally name a specific placement. I would remind them of that.

Thank you so much for your message and for the time you’ve taken to try to help me understand what is going on! Your message was so helpful. I am so very sorry for my delay! My kids have a vomiting bug (so no back to school for us today…). My DH now has it, so it’s been a brutal day.

Oh gosh, yes that’s exactly what they’re going to do, isn’t it? Try to shove my DD into small classes via bottom sets in the mainstream and pretend that’s what they mean by inclusion.

I don’t think I would describe the EHCP wording around class sizes as “watertight” - if I had anticipated what they are now trying to do, I would have done more to expressly state that we were talking about specialist. It seemed so obvious this was the case at the time, especially given all of the discussions and correspondence with the LA. That said, it’s not as loose as some of those you’ve highlighted (“likes” has me shocked!). I am now very worried, though, that they will do exactly this - say the class size requirements can be met by providing a smaller group coming from a larger class. We really have messed this up. I do, though, still feel very strongly that an ARP isn’t an appropriate setting, and this is simply shoe horning by the LA, without regard to child profile or need.

The questions you’ve suggested we ask the ARP are really helpful and I will raise them. I will also ask about a nuture group (I had never heard of this). I have already cobbled together a long list of questions (THANK YOU for suggesting lots that we can ask).

Have the LA’s you have seen do this been successful when trying to use lower sets to provide the small class sizes anticipated by the EHCP? I’m trying to find out exactly how much time in the mainstream is expected.

Our preferred school is a wholly independent and we are only appealing section I (I know, I (now) know!). At the time, it seemed to make sense but clearly it didn’t.

I’m trying to get some more evidence from our current school who know my DD - and what she will cope with - well. They are happy to help which is some silver lining.

I did think that the LA should have named a specific placement in section I and I will remind them!!

Thank you so much. I am feeling deflated but need to just get cracking and focus now on what we need to get evidence wise. I needed to understand what they were trying, as I’ve found the whole thing baffling. You’ve given me some much needed clarity.

You don’t have to apologise. And you haven’t messed up! This is not your fault. You can do this.

I know one case where the LA’s strategy of relying on a school with small lower sets to fulfil the small class requirement was successful for the LA. And one where the LA successfully relied on a nurture group within a school. In both cases, the parents decided not to appeal. If they had, I believe they would have been successful. In all the other cases, the LA were either stopped in their tracks before finalising having been told in no uncertain terms their plan was not lawful or the LA either conceded or lost at appeal. That doesn’t stop LAs trying it on! Sadly, I know also cases where the small class provision is vague and woolly, therefore not enforceable and that allows the LA to place in bigger classes, so it is really important you think about if the exact wording is tight enough.

You can still request to amend the grounds of appeal. If you want to do that, you can do so via a SEND7 - don’t forget to seek the LA’s views first.

Make sure you get the answers to your questions in writing. If inappropriately placing in lower sets is the LA’s plan, it will help to have evidence of DD’s academic level and also cognitive testing. Have you considered independent assessments? If you can’t afford these but aren’t eligible for legal aid, contact Parents in Need.

To get a wholly independent school named, you need to show the LA’s proposed school(s) can’t meet needs &/or it isn’t unreasonable public expenditure. A wholly independent specialist school is going to be more expensive than a mainstream school, even if placed in an ARP, so you need to show the placement can’t meet DD’s needs. (For the majority of ARPs, the mainstream school is named in I and the ARP included in F because ARPs at the vast majority of schools aren't separate registered institutions.)

As well as showing the mainstream isn’t suitable even with the ARP, you should also consider why any other SS within travelling distance isn’t suitable. For secondary, 1hr15 is typically considered the maximum recommended travel time. When LAs have named MS and the parent’s preference is a wholly independent SS, it isn’t unheard of for LAs to put a cheaper SS on the table last minute. You need to be prepared for that and ensure your case stands up to a last minute change just in case.

Just to add to the terrific advice here that if you do find nurture groups are involved ask what academic level they work at. I'm afraid nurture groups in KS3 are sometimes really provision for DC who've left primary unable to read and write effectively. "Nurture" sounds better though!