Panel agreed on a specialist school place but none are available

[Friolero]

My DS is 4 and due to start school in September. At the panel meeting where his EHCP was approved, they also agreed to a specialist school place for him. However, they've since had the SN schools admissions panels, and are saying there are currently no suitable places available, and our preferred SN school is full. They have not currently come up with a solution and are basically just dithering about!

Do the council have a legal requirement to find a place for my son in a SN school as their panel said he needs one, or can they just provide support and say he has to go to a mainstream school? At the moment his EHCP hasn't been finalised, so there is nothing in the placement section so I can't appeal anything at the moment.

I would appreciate any advice on where we stand please.

Can they provide extra funding to the preferred SN school to make a place available, e.g. to cover the cost of employing another TA or teacher? Have you looked at independent schools?

If they say that his needs can't be met in the mainstream then they definitely can't place him there.

Thanks for your reply. That's what I'm hoping - that they could just pay for another TA at the SN school. If he goes to mainstream they'd need to pay for a lot of (full time?) 1:1 support as this is set out in his EHCP, so I don't see why they can't direct the funding to the SN school instead. I'm just not getting answers from the council, they don't seem to know what to do or at any rate aren't really communicating with me.

I've looked into independent schools but not found anything at all suitable in the area.

They haven't specifically said his needs can't be met in mainstream, just that they had originally agreed to a specialist place.

You can remind them of their duty to finalise the plan within 20 weeks.

If they issue the plan without naming the school, only a type of placement, you can then appeal against failure to name a school, which does not require any mediation.

If they issue the plan naming a school which is not the right school, or a school you don't want, you can appeal against that too, but that requires mediation or a mediation certificate to proceed to Tribunal.

You will know when you can appeal because they have to legally send you a letter setting out your right of appeal

Their reasons wouldn't stand up in any appeal, so it is likely that they would concede quite quickly if you did appeal, which is probably why they are not finalising the plan

Which is why you have to remind them of their statutory obligation to finalise the plan. Next steps if they don't might be to talk to SOS SEN and discuss sending out a letter threatening Judicial Review if they don't finalise one (with or without school named) Usually the threat of JR is enough to make a LA finalise a plan.

Imo what happens is that they dither for a long time, although they know what it is they are legally bound to do, just in case there is any way you might give up and go away, but the more you remind them of their legal responsiblities the more likely it is that they will do, what they were meant to do in the first place!!!

Thank you knitting, that's really helpful.

First step seems to be to push them to finalise the EHCP. To be fair on them, we've been waiting for an additional hospital report to come through as he's just had another assessment & diagnosis. However, we've got that now so there's no reason for them to delay any further.

I am in a very similar position to you. My son is 4 in June and his draft ehcp (which we started the process for in July!) is written saying he needs a specialist placement. We applied for two special schools - 24 miles away from us but the only suitable ones- and both said they couldn't offer ds a place as he is too able. Then it went back to mainstreams to review and they said they are not able to offer him a space as his needs are too complex! We still don't have the final ehcp, I can't ever get hold of our co ordinator to ask them anything and have left 3 emails now! I don't think anyone knows what they are doing. Three weeks ago they sent out the draft ehcp with a form asking which school we wanted ds at so after speaking to ipsea I put the special school down again (!) and sent the form back. Haven't heard anything yet! It's a joke!

(Just to clarify there are NO other suitable schools- the other special schools are for even more severe needs than ds and there are no independent schools in our area for at least 40 miles).

It's ridiculous isn't it Fairy? I hope you get through to your caseworker soon. How can they say his needs are too complex for mainstream but he's too able for the specialist school - it doesn't really leave you with many options!

Thank you - hope you manage to get things sorted too! It's all such a trauma!

if you google "Ipsea choice of school or college" it sets out your legal position in naming a school. They are not allowed to say the school is full.

You could also look up the Send Code of Practice 2014 for further clarification of the placement issue and LA's responsibility to take into account the parental preference.

Thanks knitting - I didn't know they weren't allowed to say a school was full, that's very useful to know. I'm off to google those things now! Ive got a call booked to speak to Ipsea next week but hadn't seen the bits about choice of school when looking on their website.

I've been told by a Sen solicitor that they are allowed to go 5-10% maximum over their intake (dependent on school / needs of children etc) and any more than that they can indeed say the school is full, probably under the default option of "admitting child xx would be detrimental to the needs of the other children" (ie school is full so admitting another child would mean not enough resources for all etc).

That does make sense if there are a fixed level of resources, but I was hoping that you could argue the case that the funding they'd use to pay for support in mainstream could be used in the specialist school instead, and therefore the argument that it would affect the existing children wouldn't necessarily stand up.

No, it doesn't.

If you look at the caselaw (I think it is in the Ipsea caselaw section but I'm not sure), there is an extreme case of someone severely disabled fighting to be included in a mainstream secondary (this is someone nonverbal and physically handicapped) and even then the school/LA were not allowed to use the argument that it would be detrimental to the other children or their resources. Even begging the question why the parents did not think a special school would be a better place for that child. They still had to right to insist that the LA fund him in that school.

However, I am not a SEN lawyer so please don't quote me!!

I just wanted to come and update you that my son has just been offered the SN school that we wanted. Feeling very happy now!

Thanks for all the earlier advice, it was really useful in knowing where we stood.

Yay that's great news. Sometimes playing the waiting game and standing firm works.

Best of luck to you DS when he starts

Good news! It's easier to win SN schools at this stage as some kids are placed at panal and the parents decline. In my sons school there are 7 per class so even the 10% over wouldn't help much.

Also given full time support in MS can work out more expensive ( as I was told )

Thank you both. It's been very stressful but at least we got there in the end!