Help! Special School say can't meet needs but examples from historical EHCP

[RainbowLife]

At the very end of term I was told the Special School applied for in my son's EHCP review months ago (DS is currently part time in mainstream primary) said they can't meet his needs so are not offering a place.

The reasons/ examples given made no sense and this is why I need help. It might not be the right school and there might be no school that would be right but not for the reasons given which are factually incorrect. This has really thrown me and I'm not sure how to approach it.

A little bit of digging with the LA caseworker revealed 2 types of examples:

1 - several needs/behaviours listed on the EHCP when DS was 5 (he's now 11) which are clearly historical and 'deleted'. I believe current practice is now everything is left in the paperwork but crossed through when it no longer applies.

2 - two examples relevant to DS being in a mainstream class of 30 who are following the national curriculum.eg needing individualised approach to literacy/numeracy and small group or individual support in a quiet calm environment. His reading age was assessed at over 16 years by his then class teacher 18 months ago, this is in the paperwork. The Special School has classes of 8 and is a far quieter calmer environment than a mainstream classroom and is not in any case following the national curriculum.

The LA caseworker is leaving her job and there's no named person to contact going forward.

I would really appreciate any advice or perspective. EOTAS/EOTIS might be the only possible path to pursue as there don't seem to be any other school options. I don't know if I can really cope with DS being based at home full time.

DS is currently offset a year so going into Y6. The offset was decided several years ago at a different school and was the right decision at the time. Now it's tricky as he's definitely started puberty. I don't see how he's going to cope with Y6 with the class emphasis on SATs. The review that should have happened in the summer term didn’t happen because of awaiting the Special School decision so there's no proper plan for the autumn at all and absolutely no transition to secondary planning.

A phase transfer review should be held in the autumn term of Y6. Then the amended EHCP naming the secondary placement finalised by 15th Feb of Y6.

Is the special school you want wholly independent? If not, you don’t need an offer of a place.

Do you now have the right of appeal after the last review? If so, you need to appeal. You need to appeal B&F as well as I. B + F = I. The placement named in section I is the logical conclusion of B&F. B&F need updating. Out of date information doesn’t need to be left in. All current special educational needs should be in B. Each need should have corresponding provision in F. This provision should be to meet DS’s needs, not written to fit a specific school.

If DS isn’t attending school full time, is alternative provision in place?

EOTAS/EOTIS is only legally possible if it is inappropriate for provision to be made in a school. EOTAS/EOTIS doesn’t have to be based at home full-time or at all.

Thank you so much@perpetualplatespinning
It is a wholly independent school. I'm now not sure if I should pursue a place there and I don't know if I can formally challenge the decision.

I was told out of date information does now need to be left in but is shown to be not current. A new policy?

At the beginning of Y5 we had a part time in school part time online alternative provision arrangement.

During the school year we had a fairly horrendous family breakdown and one consequence was me not being able to support DS with the online provision (he couldn't do it independently). During the summer term he started a good in person alternative provision one morning a week (I take him and have to stay).

I realise this doesn't answer everything you asked. I asked the LA caseworker for a hard copy of the paperwork sent to the school to try and get my head around the way it has been read. I hope she can organise this before she leaves.

I am aware (but only just starting to try and properly understand) of the 'inappropriate in a school' condition. Can you help me understand this further?

Does this need to be an actual school that exists or an actual school place available in a school that can meet needs or can it be a theoretically imaginable school or one hundreds of miles away?

I'm aware of 2 other Special Schools, with very different cohorts, within an hour's travel and two local mainstream secondaries where all the children at DS's primary go (if not leaving the area/state education). None are suitable for DS. I really investigated last autumn, visiting and talking to teachers and parents.

One of the Special Schools might at an absolute stretch be better for DS than Home Ed (I do mean that not a good EOTAS package) but although they could meet some social/medical needs I'm not sure they can meet his academic needs and there are lots of children who will be a perfect match with that school.

I am finding this incredibly difficult.

I’m not as knowledgeable as @perpetualplatespinning but just a hand hold here, this is incredibly difficult for you and your family.

Wholly independent schools can’t be named in EHCPs, even via appeal, unless they offer a place. If you wanted, you could approach the school to explain them EHCP is out of date, provide an accurate picture and any up to date evidence you have and ask if they will reconsider. It may not work, but if you wanted the school, it is worth a try.

You can make subject access requests to the LA and school to get the information that was shared between them.

Do you have the right of appeal currently?

Out of date information doesn’t need to be left in.

The LA can’t compel you to facilitate the alternative provision. Whether that is online or in person. The LA is responsible. Email the LA about this. Depending on how part-time DS is attending school, one morning a week AP may not be sufficient either.

How is DS during the time he is in school?

There are lots of factors that are considered when looking at if it is inappropriate for provision to be made in a school. It depends on the individual circumstances. It isn’t just if a school can make the provision in F, but if making the provision in a school would not be suitable or would not be proper. It isn’t enough to look at if it is inappropriate for the provision to be made in just one school (or even 2 schools) - although his doesn’t mean the LA has to consult all or any schools in order to be able to prove that it is inappropriate. A suitable school hundreds of miles away wouldn’t necessarily mean it was appropriate for provision to be made in a school - it would sometimes be appropriate and sometimes inappropriate (e.g. some DC have residential placements because of the distance, but that isn’t appropriate for all).

There is a lot of case law on this that you might find helpful to read.

For example, TM v Hounslow [2009] EWCA Civ 859* *says individual circumstances need considering and part of that includes looking at:
“i. the child’s background and medical history;
ii. the particular educational needs of the child;
iii. the facilities that can be provided by a school;
iv. the facilities that could be provided other than in a school;
v. the comparative cost of the possible alternatives to the child’s educational provisions, either at school or elsewhere;
vi. the parents’ wishes (although they are not generally determinative); and
vii. any other particular circumstances that apply to a particular child”

NN v Cheshire East Council (SEN) [2021] UKUT 220 (AAC) confirms this. It will also help to read M v Hertfordshire CC [2019] UKUT 37 (AAC), Derbyshire CC v EM and DM [2019] UKUT 240 (AAC) and AA & BB v Bristol City Council [2023] UKUT 52 (AAC).

An imaginary school being suitable doesn’t mean it isn’t inappropriate for provision to be made in a school. I have 2 DSs with EOTAS/EOTIS. One would be fine in an imaginary school - a school with no other pupils, taught only certain subjects to a high academic level in certain ways with lots of sensory input, lots of exercise/sport, multiple therapies, sensory friendly building… you get the idea. It is an imaginary school he drew/annotated for the EP, but it is never going to be real so the imaginary school doesn’t mean it isn’t inappropriate for provision to be made in a school for him.

Thank you @Lesley25 I am fighting off tears.

I have been on my own with DS for most of his life but briefly married to his Dad last year which ended horribly. Unfortunately in the spring I had a really bad lung infection and haven't recovered properly (having further investigations) so I'm very depleted and have a lot of really difficult stuff to deal with relating to the marriage ending.

When I found this school I thought it was an answer to prayer but since H went and the mess that followed I have had some worries about how it would really work out. The reasons for rejection are wrong but that doesn't prove one way or the other whether the school is the right one.

@perpetualplatespinning your DS's imaginary school sounds about right for my DS.

@RainbowLife could the wobble about the school be because everything is so difficult right now - understandably so.
@perpetualplatespinning is right, if you want the school, could you go back to them and ask them to reconsider.

i don’t know if this is any way appropriate for your child but could they observe at home or couldn’t attend with you there for a few hours?
(it wouldn’t work for my child due to my son’s understanding). Do you have new professional reports? Eg Ed psych,

This is the school you felt was initially right, what has made you think it now isn’t? I admit, I’d be thinking the same if they said no to a place my gut would be “you can’t have my son even if you agreed later on”

BUT the school are refusing a placement based on old evidence and now an inaccurate representation of your child.
is it worth a try?

Yes @Lesley25, I want to deal with this as rationally and thoughtfully as I can, despite being a gibbering wreck.

I had lots of positive impressions and information in the early Autumn which convinced me it was ideal, although not on the doorstep. Since then I've heard good and bad experiences and reports so my picture of the school and how it might be for us is a bit more rounded now.

I don't have any physical or emotional energy to spare so if I challenge the decision there will be other important things I don't do. If I put a lot of effort into looking for other things and don't question the decision process this door closes.

I'm trying to be open minded and proactive but I feel anxious and exhausted.

It makes sense to approach the school to point out the decision doesn't appear to be based on DS's current needs, ask them to help me understand what's happened and discover if there are any real sticking points.

But perhaps school isn't right for DS. He has such a 'spiky' profile. He really does best with one to one in person adult attention or pursuing his interests on his own. He absolutely needs help learning social skills and wants friends but even with adult support more than one child for more than a couple of hours is difficult and mainstream school is a really tough and overwhelming environment (he has one to one TA). Parks, shops and beaches are often impossible or very difficult because 'too many people'. Apart from some supportive adults and possibly one carefully chosen friend the right number is not many at all, preferably none.

Regarding the out of date information needing to be left in - I'd be astonished if that was an actual requirement (what about GDPR?) Sounds more like LA dodgy policy. I asked for out of date stuff removed from DD's EHCP and they did it promptly.

With a child with SEN, I think it is normal to wonder if/how something will work even if it is an amazing placement.

Talk to the school. Then you will know one way or the other if it is suitable and if they are willing to reconsider. In the future, if other schools are consulted, it is worth contacting them proactively to make sure they have all the right information rather than just what the LA shares.

What support is currently in the EHCP?

@Needlenardlenoo don’t fear, it isn’t a requirement for finalised EHCPs to have out of date information left in. During the AR process, out of date information may be struck through, but that is only for part of the review process. It doesn’t need to stay in the finalised amended EHCP.

Thank you all, that's really helpful.

I didn't think it possibly could be as it contravenes GDPR.

If there’s any way any of us can help, please keep posting. We can be your rational head and we can help with questions and we can just hold your hand. Many of us have been where you are.

Thank you, I do need that help! I will post more as soon as I can.

This thread has made me realise I don't understand GDPR. Please can someone explain why it means historical information shouldn't be kept in 'crossed through'?

This seems to be the crux of the current mess.

I plan to contact the school and I am trying to work out how to phrase my email. At this point I'm looking for clarification re what has gone wrong.

I can see the logic of doing a review with all historical information available then producing the final document with current information only. I want to question the LA and current school about this apparent new policy leading to a perverse outcome.

I need to separate what has gone wrong with this process and looking again at what DS needs and whether a school is where his education should happen long term. Trying to think about everything at once has been making my head explode (as Dana K White says re decluttering).

Hi @RainbowLife I'm no GDPR expert (I did a bit of training in my teaching role) but I think keeping and using historical data unnecessarily, especially about a vulnerable child, probably contravenes the "proportionality" part of GDPR. I will try to add a screenshot.

I wonder if IPSEA or SOSSEN or Special Needs Jungle can give guidance on this.

On the down side, given that LAs often ignore parts of the law anyway when it comes to SEND, I wouldn't have overly high expectations of their GDPR compliance.

Special Educational Needs and Disabilities (SEND) privacy notice | Bracknell Forest Council https://share.google/c8fK8CIRo7Hc2gmNI this is quite useful - if you scroll down, it details your rights under GDPR.

Thank you, I am drafting an email to the head of the Special School.

At this point I am trying to understand what has gone wrong with the paperwork and which, if any, of my son's needs can't be met by this school. It won't be possible to send that paperwork anywhere else if it's completely misleading and if there's something I'm not understanding about my son's needs I need to catch up!

I'm not necessarily looking for this school to reconsider and offer a place and even if a place was offered I'm not assuming it would be approved by the LA.

It is the LA you need to speak to about the EHCP rather than the current school because it is the LA who is responsible for amending the EHCP. GDPR is a bit of a red herring because regardless of that, the EHCP needs updating.

Some LAs have unlawful policies of only amending the EHCP at phase transfer or if there has been a significant change. (And even then some LAs try to unlawfully wriggle out of amending at phase transfers sometimes.) That isn’t lawful. The EHCP can, and where necessary should, be amended at other times.

Do you currently have the right of appeal? This comes after the annual review - either when the LA informs you they are not going to amend or if they amend when they issue the finalised amended EHCP. It is important to know this because you don't want to let the appeal window close without submitting an appeal.

@perpetualplatespinning I don't think I'm able to appeal the EHCP. The timing of when it was finalised is unclear but I have asked for a hard copy to be sent.

In the main I've had Egress messages and documents. Unfortunately I can't easily print things at the moment and I'm looking at things on a phone or mini tablet.

The review took place in the autumn term and current school asked for urgent action - to request a change of setting - in December.

There was some back and forth and
I'm not sure what happened over the next 3 months or when it was officially finalised and sent to the Special School for their assessment. (I was quite unwell with a severe lung infection and I haven't properly recovered.)

Today I emailed the Special School and also had a chat with the Senco at DS's current mainstream primary. She is going to try and find out more about what has happened. She was steered away (by the LA) from doing a review last term unfortunately but has now been advised by the departing caseworker to do this urgently in September.

It is a mess and I want to understand how it's happened but that won't magically create a new school.

Following the review meeting in the autumn term, you should have received a report within 2 weeks of the meeting. And within 4 weeks of the meeting the LA should have informed you if they were proposing to amend or not and if they were, send the amendment notice. Then if they are amending, they should have finalised within a further 8 weeks. Did any/all of this happen?

A consultation isn’t sent to schools after the EHCP has been finalised. The finalised EHCP names the placement/type of placement.

@perpetualplatespinning I'm not sure all those things happened.

I understood that, because it's an independent school, they assessed whether they could meet needs in the EHCP then if they could it would be looked at by a panel from the LA.

It is possible that some of the problem lies with the school not reading the documents correctly. It's hard to know what to think.

You need to know if the correct AR procedure was followed. You will have received paperwork for each step, so go back to the paperwork to check. If the correct process hasn’t been followed, you need to challenge that. If the correct process has been followed, you need to know when you got the right of appeal, so you know if you are still within the appeal window.

If the school is wholly independent (as opposed to a section 41 independent), the school can’t be named unless they agree, but school consultations and decisions about the placement/type of placement happen before the EHCP is finalised, not after.

@perpetualplatespinning thank you so much for shedding light on all this. Some things make a bit more sense now.

I've got other very difficult situations to handle that are looming large in the next couple of weeks (think of the top stresses list that used to be popular - it feels a bit like a bingo card at the moment!). Right now I'm packing for an all day drive tomorrow with DS to go on whatever the opposite of a holiday is. A tough job that can only be done in school holidays.

I've absolutely got to find some positivity. I have so much to be grateful for but feel really beaten down at the moment.

I am so grateful for everyone's advice, handholding and encouragement 🌸🌸🌸🌸 Thank you.

Sorry things are so overwhelming at the moment. It is exhausting but you can do this.