Named mainstream school on EHCP won't take him

[mollyminniemo]

Hi all,
After a 2 year battle we were awarded an EHCP through tribunal last July. I then asked for a mainstream, state funded free school to be named on his EHCP for his secondary choice, going into Year 7 that September. Thanks to the LA delaying consulting with the school, breaking promises to do so before the end of term, the school then broke up, went on holiday. We didn't hear back. He then had to start at the closer school he automatically got a place at while I continued to battle. After chasing the LA they finally consulted, the school we want replied to say they wouldn't accept him as full (and as I have heard from the LA- and as so many other kids with EHCPs there). I realise this is not ok.

DS (12) has then continued at the other school while this drags on. He has been bullied and I am determined to get him into the other school.

Our LA EHCP caseworker even when she was there didn't reply to emails. She then went on long term sick leave, with nobody ever bothering to tell me. I would get the odd response from other people here and there but nothing has been done. I now want to escalate to Director of children's services.

I would be so grateful for anyone who knows the official line/jargon to offer me a few phrases which clearly stipulate it is not legal/within permitted guidelines for a mainstream school that is named on an EHCP to reject a child because they are full/have too many other kids with EHCPS? I may also add: after they said they wouldn't take him as they were full- after the start of term, two other children were admitted into Year 7, late, from the waiting list and without having EHCPs. Fortunately I know a parent there who confirmed this. Ahead of our DS. Thankyou.

Quick question for clarification before giving a fuller reply.

Do you mean the school is named in section I of a finalised EHCP (which is what your thread title and the last paragraph of your post implies)

or

do you mean you informed the LA of your preferred placement, the LA consulted the school, the school replied negatively to the consult and the LA did not name it in the finalised EHCP (which is what the rest of your post implies)?

Thankyou! When we got the draft EHCP I stayed I wanted the school as the named school in section I. Crazily 7 months later we are yet to receive the finalised EHCP back. But they know we named it.

So it’s not named on the final ehcp. You giving your preference means only that, a preference. As you don’t have a final plan you need to request this asap so that you can appeal against the one that is named on the ehcp. How did your dc get a place at their current school? Kids with ehcp don’t go through normal admission process and his current school should’ve been consulted with.

So you don’t yet have an EHCP. The school is not named in an EHCP. You have only stated your preference. Stating your preference doesn’t mean the school is named in an EHCP.

You need to push the LA to finalise ASAP. They are in breach of the timescales following the appeal and are frustrating your right of appeal. If chasing doesn’t work, you need a pre-action letter. Then, if that doesn’t work, JR proceedings will.

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 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.

The bar to prove one of the above is high. Far higher than LAs and some schools admit. Being full is not defined in law, and for non-wholly independent schools, 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 DS is incompatible. It has to be something tangible and specific and is more than an “adverse effect”, “impact on” or “prejudicial to”. For non-wholly independent schools the LA can, and must, name the school regardless of the school’s objections unless they can prove one of the reasons above.

If the LA finalise without naming your preferred placement, you can appeal. But you need the finalised EHCP.

OP will have (sensibly) gone through the normal admission process for a secondary placement as well as pursuing the EHCP because a) her DS did not have an EHCP at the time of the normal secondary admission process and b) still doesn’t actually have a finalised EHCP. It would have been foolish not to make an application via the normal process since OP didn’t have a finalised EHCP at the time and, as she has found out, wasn’t guaranteed to have one by the start of Y7 even with a (then) live appeal. The place offered via the normal admission process doesn’t mean a different placement can’t be named in the EHCP so it was just a safety net. LAs mostly consult with the current placement but not 100% of the time.

Thanks very much both. So I paid for SoSen to review the EHCP draft and they gave many changes. I sent their full mark up back to my LA along with stating for my school to be named in Section I, in July last year. The LA sent back the EHCP (in November) without taking note of these changes. There is no school put in Section I. The handling of this has been shocking by them, I have been passed around so many different people/caseworkers and clearly none of them have any handling of it. I have the email trail confirming this all so again went back forwarding this message and asking for the changes I requested months ago to finally be put into the final EHCP.
As ExistingonCoffee correctly highlights I did then also go through normal admissions process as the tribunal date had been put for July well after school admissions applications closed and I wanted him to have a school to start at if, in my worst case scenario which I truly didn't think would happen- but now has, they wouldn't treat him as priority case and admit him into the school I told them I would name on the EHCP and subsequently have done.

So have you received a final plan as you mentioned tribunal but you don’t usually get your right to appeal until it’s finalised?

sorry I misread and thought it was a phased transfer ehcp you were talking about not an initial plan.

The LA sent back the EHCP (in November) without taking note of these changes.

Was this the finalised EHCP? Just because the LA didn’t include the amendments you proposed doesn’t mean it wasn’t the final. If this was the final, is section I completely blank or is there a type of placement but just no specific placement? If it was a draft, it is correct that section I is blank. Drafts must never name a placement or type of placement.

You really need to know if the EHCP has been finalised. What you do next hinges on that.

I would name on the EHCP

You don’t name a school in the EHCP, the LA does. You state a preference and there are limited reasons the LA can rely on to refuse to name your preferred placement.

So have you received a final plan as you mentioned tribunal but you don’t usually get your right to appeal until it’s finalised?

It wasn’t a contents appeal. If the LA refuse to assess or refuse to issue, you do get the right of appeal before having a finalised EHCP. It sounds like it was a refusal to issue appeal.

Hi all, I launched an appeal against our LA for not naming out school in section I. Amazingly the tribunal have found in our favour and named the school we want. Can I ask what next steps look like? Is this now automatically (I am guessing not) processed by my LA and steps taken to look how to transfer him from current school to the named school? Does thew school have to now take him? Or do I have another battle? Thanks in advance

For just a section I appeal, when SENDIST Order a school be named in I, the LA must finalise the EHCP without the amended school within 2 weeks of the date of the Order. The school must admit.

However

I launched an appeal against our LA for not naming out school in section I. Amazingly the tribunal have found in our favour and named the school we want.

Are you sure about ^this? Just last month, you said you didn’t even have a finalised EHCP. It is not possible for you to have received the finalised EHCP, had an appeal registered with SENDIST and heard in a month. Even if the version you were sent in November was the finalised EHCP and you just didn’t agree with it, you hadn’t appealed last month, so it isn’t possible timeline wise for you to have appealed and have had the case heard at a hearing.

Do you mean you submitted an appeal and the LA did not oppose it?

Sorry to clarify- In all the many (100s) emails back/forth with different caseworkers I looked through and discovered they had just attached a document saying "final EHCP" and I hadn't realised. I am also dealing with a younger sons EHCP at the moment so my inbox is just flooded. The EHCP named no school under Section I just said "Maintained mainstream provision". I then emailed the LA caseworker back again and said I wanted our requested school named, I got an email saying "Oh sorry we didn't enter a school in section I here it is" and she attached another version naming the current school he is at, not as she knew the school we asked to be named.

As well as emails back/forth with the LA I had launched a Section I/not naming appeal months ago. They gave us a tribunal date of next year. Our LA did not respond to repeated requests by Sendist to respond and they said if they didn't hear by certain date, then that was final date to submit any counter evidence etc. Sendist also asked if I would consider a paper review and as the date was so far away I said I would (a few weeks ago). Today they let me know they found in our favour, have now instructed our requested school to be named in Section I.

Now I am even more confused. If you appealed months ago you must have realised the LA had finalised the EHCP? You can’t appeal if you don’t have the finalised EHCP and decision letter. So if you thought the LA hadn’t finalised, you wouldn’t realise you could appeal.

I was actually advised by a member of the LA to appeal so I did 5 months ago. This isn't the point. I appealed and have won. I was just wandering what happened next.

I explained that in my pp.

ok, thankyou