School say they can't meet need - what next?

[whoami24601]

Autistic DS started secondary school this week. Unfortunately his EHCP came through in July so not enough time to sort his school place before the new year.

We have requested a place in an RP for him but he has had to start the year in mainstream.

Day 1 went ok but he went to meet DD to get the bus home, and the gate was locked unexpectedly so he panicked and had a meltdown - this mostly involves trying to find a space to be alone, but obviously the teachers had to follow him to make sure he is safe. I was called and had to go collect him.

Day 2 I got a call at lunchtime. He is dysregulated and trying to find a space to be alone but again teachers are following him. During this dyregulation he has kicked and thrown things at the teacher who was there as he wanted to be left. I had to calm him down.

I spoke to the SENCo who suggested he spend some time in their Hive classroom next week (he was originally denied access to this as it is for lower ability children and he is very bright).

After school yesterday I had a call to say school cannot meet his needs due to safety issues and so he is not to attend. Is this legal? They were quoting section 19 at me but I'm not sure what that is.

They have emailed the LA to request more specialised support for him and we should find out from the RP this week whether they will accept him. Do we just wait it out? I'm absolutely gutted for him that they have given up on him so quickly 😢

I spent all last night crying and again this morning. He is a clever boy who could do well with the right support but I don't know what we can do!

Any help or advice is really appreciated. Thanks for reading.

If you got a finalised EHCP in July but it didn’t name your preferred placement and include the necessary provision in F, have you appealed?

The LA has finalised the EHCP, do not rely on them amending again. They may not even if they say they will. You need to appeal. If you haven’t appealed and the EHCP was finalised in July, more likely than not, you are still within the appeal window. Appeal. If you no longer have appeal rights, see if SENDIST will accept a late appeal. It isn’t guaranteed, but they will sometimes grant leave to appeal out of time.

What support is in F of the EHCP and has it been provided?

You need to follow up the phone call with an email so you have a paper trail.

Is the school formally suspending or permanently excluding? If not, DS can attend full time.

It will help you to read the government’s suspension and permanent exclusion guidance.

The school does not get to merely say they can’t meet needs so DS can’t attend. It doesn’t work like that.

Section 19 is section 19 of the Education Act 1996. Where the LA has a duty to ensure DC unable to attend school full-time still receive a suitable full-time education.

When you were called on day 2, was that to collect? If so, was is a formal suspension?

Request to see the risk assessment.

We named a placement for him, but due to timelines and the summer hols they have until 8th Sep to respond. Hence him having to start in mainstream. The RP we have requested is within the grounds of his mainstream school.

So are you saying they can't tell him not to come? They have not said the words suspension or exclusion at all but he kept saying a new thing that has come in in July that is about keeping staff/ other pupils/ DS safe mean they can stop him attending until the LA provide more support. Is that not correct?

I have emailed SENDIASS but don't expect to hear back from them until next week at least.

I'm hoping the RP will accept him but it is already oversubscribed so I don't know how likely that is. I worry that the LA will offer him a place at an RP that is far from where we live that we don't know.

If they offer a place at a school we don't want and we decline, what happens then? I have tried to ask all these questions but can never seem to get a straight answer!

If you had the finalised EHCP in July, have you appealed? This is very important.

The LA misled you about the EHCP. They could have placed DS in the RP.

For most ARPs, the school is named in section I of the EHCP and the provision provided by the RP included in section F. Most ARPs are not separate registered institutions and are instead part of the mainstream school they are part of. A smaller number are satellite units of special schools but on the mainstream school’s site and DC in these units are on the roll of the special school (sometimes also dual registered with the mainstream school). A very small minority are a separately registered establishments despite being on the site of a mainstream school. So you need to know what type of unit it is. Until earlier this year, case law established that the school should be named in section I (without reference to the ARP) and the provision provided by the ARP included in F (but not naming the specific provider). Although some LAs would still name the ARP, but SENDIST would not. Earlier this year, more case law established that in some cases it can be lawful to name the specific unit in F &/or in I alongside the school’s name. Although in many cases it is still just the school named in I rather than the ARP.

With the above in mind, what does section F include.

The school shouldn’t be saying he can’t come in. They are talking about Keeping Children Safe in Education (KCSIE). It doesn’t mean they can informally, unlawfully exclude DS. They can’t.

Be careful with SENDIASS. While some are good, too many repeat the LA’s unlawful policies.

If you disagree with a placement named in the EHCP, you would be able to appeal. Although waits for hearings are long at the moment. Whilst the appeal is ongoing, you would have the choice to make your own arrangements if you wished. If DS is unable (in the legal sense, not just that you disagree with the placement named.) to attend the named placement, you can request alternative provision.

Sorry but I'm not understanding why I shouuld be appealing the EHCP?

We named the RP in section I and section F details what that support looks like. Because we didn't get the form back to the LA until just before the holidays we now have to wait for the RP to come back to us.

The RP is a separate entity within the school grounds so school have no influence there. They have chased for me but they can't do much else.

Please can you tell me on what grounds I can argue with them re the absence? Is there a relevant document I can reference? This is totally new to me and I have no idea what I am doing!

Sorry but I'm not understanding why I shouuld be appealing the EHCP?

If the EHCP is finalised and you don’t agree with the provision &/or the placement, you should appeal.

This is because even if the LA say they will amend at a later date, they may not. LAs say a lot of things. By the time you realise they won’t amend again, your right of appeal will have probably lapsed. This then means you would need to request an early review. There is no guarantee the LA would agree to that, especially so quickly after the EHCP being finalised, and there is no right of appeal if they refuse to hold an early review. You would then need to wait until the annual review next year (and may still need to appeal following it) or request a reassessment of needs. The LA is highly unlikely to agree to a reassessment of needs given it is such a new EHCP. Even if they agree, you may still end up appealing.

We named the RP in section I and section F details what that support looks like.
The RP is a separate entity

You don’t name the RP (or other placement). You state a preference. The LA is the one who names the placement.

If the RP is a separate establishment and section I already states the RP, then DS can attend now. The placement named in section I must admit. You wouldn’t need to appeal, but your OP made it sound like the RP isn’t actually named in the EHCP.

Because we didn't get the form back to the LA until just before the holidays we now have to wait for the RP to come back to us.

The LA lied to you. While there are some exceptions to EHCP timescales during the summer holidays, this doesn’t include schools being consulted over the holidays.

Please can you tell me on what grounds I can argue with them re the absence? Is there a relevant document I can reference?

Do you mean argue against the absences because the school is telling you DS can’t attend? Or do you absences if the LA name a school you don’t agree with?

So I have just looked and section I on his EHCP states that a placement will be named after consultation? So does that mean we have no legal right to a place?

Im sorry but I'm finding this all very overwhelming and it's hard when you're beong told different things by different people to make sense of what's right and wrong.

Re arguing the absence, I mean arguing with school why they can't just say he can't come in on Monday.

Thanks for all the advice so far

So I have just looked and section I on his EHCP states that a placement will be named after consultation? So does that mean we have no legal right to a place?

If the LA has finalised the EHCP like that, it isn’t lawful. Email the Director of Children’s Services and the Monitoring Officer pointing this out.

In the majority of cases, section I of the CYP’s EHCP will name a type of placement and a specific placement.
In a smaller number of cases, section I of the CYP’s EHCP will only name a type. It won’t have a specific placement. Case law dictates where LAs name mainstream as type, they should normally name a specific placement.
In a small number of cases, section I will be completely blank for EOTAS/EOTIS/C. There will not be a type of placement or placement named.

The LA shouldn’t finalise with section I saying a placement will be named after consultation.

Consultations should happen before finalising. LAs should give themselves enough time to do this and meet the deadline for finalising.

As the RP isn’t named in section I, they don’t have to admit.

Re arguing the absence, I mean arguing with school why they can't just say he can't come in on Monday.

As I said in my first post, it will help you to read the government’s suspension and permanent exclusion guidance.

In particular:
“Off-rolling and unlawful exclusions
18. Telling or forcing a pupil to leave school, or not allowing them to attend school, is a suspension (if temporary) or permanent exclusion (if permanent). Whenever a pupil is made to leave school, or forbidden from attending school, on disciplinary grounds, this must be done in accordance with the School Discipline (Pupil Exclusions and Reviews) (England) Regulations 2012 and with regard to relevant parts of this guidance.

19. Suspending a pupil for a short period of time, such as half a day, is permissible but the formal suspension process must still be followed. Each disciplinary suspension and permanent exclusion must be confirmed to the parents24 in writing with notice of the reasons for the suspension or permanent exclusion.

20. Any exclusion of a pupil, even for short periods, must be formally recorded. It would also be unlawful to exclude a pupil simply because they have SEN or a disability that the school feels it is unable to meet, or for a reason such as, academic attainment/ability; or the failure of a pupil to meet specific conditions before they are reinstated, such as to attend a reintegration meeting.

21. If any of these unlawful exclusions are carried out and lead to the deletion of a pupil’s name from the register, this is known as ‘off-rolling’. Further examples of off-rolling include:
•exercising undue influence over a parent to remove their child from the school under the threat of a permanent exclusion and encouraging them to choose Elective Home Education or another school place
•moving a pupil to off-site AP where that is not in the best interests of that pupil
•encouraging a post-16 student not to continue with their course of study when this is against the best interests of that pupil
•sending a pupil home without a formal suspension regardless of whether it
occurs with the agreement of parents
•placing a pupil on a part-time timetable for behavioural reasons
•Intentionally removing a pupil from the school roll without correctly following
regulations”

This guidance is underpinned by various legislation. You can read the legislation mentioned in the guidance online too. You can also read the KCSIE guidance online if you wish.

You can trust @roaringdragon OP. She knows the law very well.

It is very hard when you realise that schools, local authorities and other people in positions of authority will lie to you and mislead you, but sadly it is widespread.

If DS would like to go to school on Monday, you should send him. Can you suggest he goes to the library or reception if overwhelmed? He wouldn't be the first in that position.

Thanks @roaringdragonso I think I've got things a bit wrong. I've realised what I thought was his EHCP is actually the draft version. That's how much I'm out of my depth!

Does that change the legal position re 'informal exclusions'?

I am emailing school this afternoon so would like to make sure I have the correct info before guns blazing!

The EHCP not being finalised doesn’t change the position on the school unlawfully informally, excluding DS. They still shouldn’t be doing it. The government’s suspension and permanent exclusion guidance still applies. In my last post, anything from “as I said…” onwards still applies.

The EHCP not being finalised does mean you can’t appeal yet. You can’t appeal a draft. It is correct that there isn’t a placement or type of placement in a draft. Section I should be blank in a draft.

What week of the EHCP process are you on? Is the LA sticking to the statutory timescale?

Yes the timetable is being adhered to. RP have until this Tuesday to respond to our request for a place. I'm so hopeful they will say yes as it would be perfect for him! The realistic part of my brain says it will probably be a no but we will cross that bridge when we come to it.

I have emailed school re the guidance and quoted the relevant parts about unlawful exclusions but no response yet.

I have also asked for a breakdown of exactly what has been done to support him. Given that they have had a draft copy of his EHCP they should have a pretty good idea of his needs!

Thanks @roaringdragonfor all the help and advice. It's such a minefield and hard to know what to do for the best 😢

If you had the draft and returned your representations/stated your preference before the summer holiday, are you sure the LA is sticking to the timescales?

Yes I'm pretty sure. The response times are paused over summer as schools are shut. The only part of the whole process affected by the summer break would have to be the part we're up to!

Not quite. There are some exceptions to the timescales. However, it isn’t as simple as the times are paused over the summer.

The exceptions set out in the Regs are where it is impractical for the LA to comply with the timescales because:
a) the LA requested advice from the school during a period beginning one week before a date the school closes for 4+ weeks and ending one week before it re-opens and it isn't practicable for the LA to comply within 6 weeks.
b) like above but about early years.
c) exceptional personal circumstances affect you or DC during that time period.
d) you or DC are absent from the LA for 4+ weeks during the time.

If you had the draft and returned your representations/stated your preference before the summer holiday, a does not apply. Even if an exception did apply it isn’t as simple as time is paused it isn’t paused. It isn’t the green light for the LA to do as they wish. They must comply as soon as practicable.

I should have written unlikely to apply rather than does not apply. That is because it is highly likely the LA did not seek advice in the week before the school closed or during the holidays.

I was unaware of the time frame for their response and so we sent our request in on the Monday before the holidays! Deadline is Tuesday anyway so not much we can do about that now.

I've had no response from school to my email yesterday. This is despite the deputy head assuring me he was available on email over the weekend. Not sure what to do now! DS thinks he is not going tomorrow so I'm tempted to stick to that but send an email with a heads up that he'll be in as normal on Tuesday. What would you do?

I don’t think there is one right answer on how to handle tomorrow. Personally, I would take DS to school myself and speak to staff. But not taking DS and speaking to staff tomorrow to tell them DS will be back Tuesday is perfectly fine if that is what you want to do.

Don’t take no reply as meaning your email hasn’t been read. The DHT may be deploying some tactical ignoring in the hope you back down and go away.

Do you have the email address of the HT?

For him to be safely within the school environment he would need:

• 1-1 wrap around support
• They would need to be team teach trained
• They would need to have an SEMH specialism

We still believe dis regulation would occur though due to our setting.

• With regards 'exclusion'

Under Section 19 of the Education Act 1996, LAs have a statutory duty to arrange suitable, full-time alternative education for any child of compulsory school age who, by reason of "exclusion, illness, or otherwise," would not otherwise receive it.

The 2026 guidance puts it beyond doubt that a safeguarding separation falls under the "otherwise" category.

The LA's Role: If the school or parent does not establish immediate, suitable education, the LA must step in under Section 19. The LA must ensure full-time provision is active, especially if the separation is expected to last.

Essentially we are saying to the LA he needs to have in place a suitable provision to ensure he is happy and safe whether that be in for the form of staffing to support him or the correct provision.

A quote from the school email. They are saying that he falls into the 'other' category so they are legal. It's a lot of words I can't get my head around!

The school is conflating issues. The LA’s duty to provide s19 provision to CSA DC unable to attend school doesn’t mean the school can unlawfully, informally exclude. Unlawful, informal exclusions are precisely that, unlawful.

The school is trying to use the separation of pupils for safeguarding purposes element of the suspension and permanent exclusion guidance. This isn’t a get out of jail free card for schools to use. It isn’t meant for situations where they are essentially excluding by another means. It is also meant to be temporary. Unless there is more to your post, the school is trying to pull the wool over your eyes.

The bizarre thing is the school was named on the EHCP in July and you sent him there in good faith.

It's tough cheese! They can't just turn around now and say "can't meet need". They've only tried for two days and the EHCP is brand new, so they can't even argue it's out of date.

I'm sorry you are caught in the middle of what would appear to be an LA/school turf war.

The EHCP hasn’t actually been finalised so no school is named, but your point still stands. Another school thinking they can do what they want. The cynic in me wonders if this is an attempt to ensure they aren’t named when the EHCP is finalised,

I've been reading around the separation for safeguarding and I agree that they are applying it completely wrongly in this case. It appears to me it is mostly for separating pupils when there has been an incident or allegation and those parties need to remain separate. That is not the case here at all!

Separation of pupils for safeguarding purposes is supposed to be temporary and rare. Both these words are used in the suspension and permanent exclusion guidance. It isn’t intended for schools to forbid pupils with SEN from attending permanently just because the school can’t meet needs. That’s why I focused on suspensions/exclusions and didn’t even mention it previously on the thread. It should not be relevant to you unless there is far more to your post/the school isn’t telling you the full picture, even then it shouldn’t be permanent.

I sent that info back to them but haven't heard anything. DH is going to ring them soon. If they persist we are going to refer to Governors and then higher if needed. Not the best start to our home-school relationship!