Not a ‘voluntary break’

[Daffsinwinter]

Hello 🙂

My child has just been forced out of her dream FE course due to her EHCP needs not being met. She is now burnt out, too ill to attend, and facing nine months of no provision.

The decision for her to take a break was made after a period of crisis over Christmas where her life would have been in danger if she had continued with the year. Her CAMHS workers were in total agreement that this was the right decision, and have said in writing that education was worsening her mental health.

On top of this, her EHCP needs updating - original EP report out of date and not clear and specific enough - and she has new and very debilitating physical and sensory needs. We are awaiting a sensory report, and we have lots of physical health evidence from the clinic she attends which need to be taken into account.

Neither does her current plan reference starting to work towards independent living / preparing for adulthood, which is something she needs and from what I understand should be in all plans for anyone post-16?

She had her AR very recently, even though I had asked for an emergency review instead. The AR was very woolly (no agenda, not effectively led, no reference to the current EHCP) and I am not confident that our setting will accurately represent our wishes to the LA.

I’m fearful that our daughter will spend this year out of education and become ever more isolated with no provision. The setting is calling this a ‘voluntary break in education’, but in my view, she was forced out due to needs not being met. Because this is what they are calling it, they are saying that the LA do not need to consider providing something else in the meantime (under section 19, for example).

I’m also fearful that even if the LA accept that she needs an updated EHCP, this will not happen in time for her to have an effective transition back into college, which needs to start in six months’ time. Even though there are legal timescales for the LA to follow, they rarely do, and our LA is one of the worst performing in the country for this.

I’ve had advice that the best thing for us to do is to go to tribunal right away, but I do not know how to do that / under what grounds?

The outcomes I am looking for are:

• a rewritten EHCP (with new reports included as evidence)
• acknowledgement that the current setting has not been following EHCP and has not been meeting needs
• acknowledgement that my child is not ‘taking a break in education’ but is too ill to attend (caused by needs not being met)
• personal budget for the time they are out of education, until they are well enough to attend.
• all in time for the start of the summer term when the plan is that my child will re-enrol.

How do I get things going on this? Would really appreciate some guidance here, it all seems so complicated.

Section 19 of the Education Act 1996 only applies to compulsory school aged pupils, not post 16 pupils. Therefore, while the LA has the power to make provision, they don’t have a duty to and mostly don’t.

However, section 42 of the Children and Families Act 2014 still applies. So the LA is responsible for ensuring anything detailed, specified and quantified in F is provided. That still applies if you have any provision that is detailed, specified and quantified in F and it isn’t all vague and woolly.

The LA is responsible for ensuring provision detailed, specified and quantified in F is provided. In the future, if provision detailed, specified and quantified in F isn’t provided, contact the LA. If it persists, you can go down the JR route. If it is vague and woolly though, it can’t be enforced.

It would be very difficult to restart in the summer term, having missed some of this academic year. It would be far better to plan to restart in September for the start of the autumn term of the 26/27 academic year.

If the AR was due you didn’t need an early/emergency review. They are the same thing. They follow the same process. An early/emergency review is just held before the 12months is up - it is an early annual review.

Preparation for adulthood should have been discussed from the Y9 AR.

If you have only just had the AR meeting, you don’t yet have the right of appeal. The meeting is only one part of the AR process. Within 2 weeks, a report should be circulated. If this isn’t accurate, you can send accurate information to the LA. Within 4 weeks, the LA must inform you if they are maintaining as is or propose to amend. If they maintain as is, you can appeal then. If the LA propose to amend, they should send the amendment notice. You then have 15 days to comment on the amendments. This is where you propose amendments referencing your evidence. And within 8 weeks of sending the amendment notice, the LA must finalise. At which point, you will get the right of appeal.

If your LA breaches these timescales, you can force them to act, including via JR if necessary.

If you have to appeal, a hearing will not be heard in time for the summer term.

A personal budget is unlikely to be given for provision that is not in F.