No 6th form placement for our son.

[Lavender1974]

My son has ASD and low
cognitive ability and is in Yr 11 in a small class of 6 students at a mainstream school on an enhanced provision placement which means they get specialised teaching. The school have been great. When we chose the school back in 2021, it was partly because it provided an excellent specialist post-16 provision course. This course has now been cut and is no longer available. This means this small group of barely mainstream students now need to go elsewhere for post-16. As we feared this has proven impossible for our son as the local college that does provide life skills type courses say they “cannot meet need” but the local special schools with 6th forms are “at capacity”. The LA have ignored our many attempts at seeking information (our caseworker basically hid from us) and now they have failed to meet the legal deadline of issuing his finalised amended EHCP with named post 16 placement by 31st March. This means we cannot exercise our legal right to appeal as we cannot do this until the EHCP is issued. We have consulted a lawyer to send a pre action letter, emailed the director of Education (again). contacted our MP and even made contact with a local journalist. The thing is even when we do get the finalised EHCP I fear it is too late for the appeals process to happen before September. Is it really possible that my son will be left with no placement for September? Has this happened to anyone else? I entered this whole process so naively as I was certain that they could not possibly leave my son with nowhere to go but am now seriously concerned that this might actually happen!

It happens, unfortunately. It shouldn’t, but it does.

There is still time for an appeal to be heard before September. Phase transfer appeals are prioritised. However, they won’t all be able to be heard before the start of the 26/27 academic year. Even if it isn’t, the LA will still be responsible for the provision in F of the EHCP.

Are the schools ‘at capacity’ wholly independent? If not, that isn’t enough of a reason to refuse to name them if they were your preference. The LA would have to prove placing DS there is incompatible with the provision of efficient education for others or use of resources. The bar for this is higher than LAs and many placements admit. It has to be something tangible and specific and is more than an “adverse effect”, “impact on” or “prejudicial to”.

I know the local college say they can meet needs, but what do you think? They aren’t wholly independent, therefore they can be named even if they object.

For now, you have done the right thing by chasing and looking for someone with capacity for a pre-action letter.

Many thanks for this response which does provide a glimmer of hope. The special school we named is state run so I think we would have a decent chance at appeal. I do think my son would need a lot of support at the local college but I think it could possibly work. The courses are aimed at SEN students. Which makes it so sad that they have rejected him as surely they are designed to support students like him. My son is tricky but pretty amenable once routines are in place. He is vulnerable because he is socially much much younger than his age but has not ever got into any serious trouble throughout his time at school. I need the finalised EHCP urgently before I can move on. I think my main problem which I need to compartmentalise as it is not helping me is that I am so shocked by the stonewalling from the LA. I honestly don’t know how they can sleep at night knowing how they have just ignored me and let my son down so badly with absolutely no acknowledgement of how massive this is. I realise how naive I sound. It’s not a competition but I have been a teacher for 26 years and am not perfect but I cannot imagine behaving so unprofessionally. I need to toughen up I know. Many thanks for replying.

It might help you to start thinking about collating evidence ready for an appeal (I would hold off submitting SARs though) and getting your grounds of appeal ready so that when you get the finalised EHCP, you can get the mediation certificate (you should appeal B&F as well as I), tweak your case and submit to SENDIST ASAP. When you get the finalised EHCP, if you don’t have to appeal, great, but if you do, you are ready to go ASAP.

If your preferred placement is a state SS, there are limited reasons naming it can be refused. These are:
-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.

You will find it helpful to read of some of the case law surrounding incompatibility. For example, OO and BO v London Borough Bexley [2023] UKUT 223 (AAC), NA v London Borough of Barnet (SEN) [2010] UKUT 180 (AAC) and Hampshire County Council v R & SENDIST [2009] EWHC 626 (Admin) (2009) ELR 371 and M v LB Harrow HS/4850/2013. The Noddy guide summarises some case law if you want a good starting point for a summary.

Then, when the LA finalises, if they don’t name your preferred placement on incompatibility grounds, you should ask for specifics. Not the vague waffle LAs usually try to rely on. So, what other pupils? What incompatibility? Is it really incompatibility with efficient education or only incompatibility with providing an education in excess of what is considered an efficient standard of education? Could anything reasonably overcome the incompatibility?

Have you spoken to your preferred placement and any others you know/suspect may have been consulted? That way, you ensure they have accurate information and the full picture. LAs don’t always provide this when they consult placements.

Thanks again. Yes I will get myself ready with the appeal asap. Time to get myself ready for action.

If you haven’t already, it is also worth thinking about whether you would need independent assessments if you need to appeal.