Can LA name a special school against our wishes?

[CompassNorth]

Me again, with another question please.

Can a LA name a special school for DS if we don't agree with it?

Will add background in case helpful:

We're at draft EHCP stage. Indie EP report has gathered enough evidence to prove DS either needs an ARP or f/t 1:1 in MS.

Our preferred school is an ARP embedded in a mainstream. They are full & said no. Cited a minuscule detail in the draft EHCP to say they are not suitable placement for DS as he should be in a separate unit not an embedded one. Complete nonsense and we have pointed out the many flaws in this argument by comparing it to the ARP's admissions criteria.

LA knows we are prepared to go to Tribunal. So they are saying they want to name a special school which they say meets the needs that the ARP would.

LA are calling this special school an autism unit "co located" with a mainstream ie renting classrooms from a mainstream school. They say there are inclusion opportunities with the Mas cohort. So on paper LA says it's the same as an ARP. But in real life, it's not. It's a completely separate school with its own staff, they use the playground at different times, they're moving to a separate wing of the building rather than being in the same corridors as the MS.

The "unit" seems to be run as an overflow provision for taking students which the next-door special school for complex needs have no space for. Pupils in the "unit" school can work towards national curriculum but cannot manage in mainstream. Several students have co-dx of ADHD, some have extra 1:1 support even in the small unit classrooms to support their behaviour. This does not match DS's profile.

The "unit" school is "co located" in a MS that went into special measures 3 yrs ago and was taken over by the same Academy Trust who already run the long-standing special school for complex needs (next door) and also the relatively new and growing "unit" which is "co-located" within the MS. Ie one Trust runs all 3 schools, all in same location.

I smell a rat here, because none of DS's teachers have ever said he needs a special school. He just doesn't. He does need an ARP, or failing that an autism trained TA in a MS school that has spaces to regularly withdraw and decompress. But the decompression is needed to help him actually access the learning (because he has such a spiky profile and gets tired and frustrated trying to concentrate, he needs regular breaks to top-up on solo play related to his special interests, then he can attend again to learning for another brief period) - but he's not hurting himself or anyone else, he's not disrupting other's learning, and with good support he is learning and he has friends.

I think that the LA recognise we gathered enough evidence through an indie EP report to prove DS needs an ARP or a f/t 1:1 in MS. Financially therefore they know they're going to have to pay for provision somewhere. I suspect that they want to give their money to the new "unit" which needs a secure income flow and which is part of this growing conglomerate of 3 linked schools run by this one Academy Trust.

To be clear, I'm not disrespecting the provision offered by the "unit", they clearly know their stuff and are very compassionate and respectful in their approach. If DS needed that environment then I'd be grabbing it with both hands. But I think he needs an ARP.

Legally, there are only 3 reasons the LA can refuse to name your choice.
"* The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) 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."

Being "full" isn't enough of a reason on its own to refuse admission. I suspect that is why the ARP suggested they aren't suitable anyway. However, the bar for incompatibility is relatively high.

Are there any other ARPs within travelling distance?

If you wanted MS you have a right to a mainstream education but not a right to a specific mainstream school. The only reason MS could be refused is if it is incompatible with the efficient education of others, and reasonable adjustments can't be made so it isn't incompatible. A specialist autism 1:1 wouldn't be unreasonable.

In reality the LA could finalise naming a school you don't want and force you to appeal.

Thanks @10brokengreenbottles , there are some ARPs which are 30-40 min drive away and I think we will try to visit them ASAP.

Is an ARP categorised as a mainstream school, or as a special school?

So although we don't have the right to choose which MS school (ie the one with our preferred ARP) , we would still have the right at Tribunal to refuse the special school, even if the alternative (an autism TA 1:1 in a non-ARP MS) was cheaper for the LA?

How do I find out what each potential placement would charge the LA, is the cost set by the school or the LA or is it negotiated between them?

An ARP isn't classed as either MS or SS. There is no right to an ARP placement like there is with MS.

If you request a particular mainstream the LA must name it unless one of the 3 exceptions apply. So you can state your preferred MS placement is a mainstream place in the school with the ARP or another MS. You wouldn't get an ARP place but if you wanted 1:1 in mainstream it's an option.

However, if the LA refuse citing one of the 3 exceptions you still have the right to a mainstream education, unless it is incompatible with the efficient education of others and no reasonable steps would change that, but no right to a particular school. The LA can't force you in to sending DS to SS if you want MS unless it is incompatible with the efficient education of others and reasonable steps can't overcome the incompatibility. This would apply whether SS is cheaper than MS with specialist 1:1 or not.

If this is the position you get to the tribunal will name mainstream as the type of placement unless it is incompatible and then they will look at all the mainstream schools put forward by you and LA, including your preference that the LA refused to name, and name an appropriate mainstream school.

I don't think I am explaining myself very well. IPSEA makes a better job of it here.

Ask the LA and schools about costs, if you do a bit of digging on google you may find FOI requests too. If you submit an appeal they also have to submit costs.

Actually this explains it better pg39-44. pg 43 in particular sets out the right to a mainstream education clearly.

Thank you @10brokengreenbottles that link is really helpful.

I think I may have been focussing too much on what the LA is doing and actually I need to keep my eyes fixed on the type of school DS needs. Ie it's about pursuing what he needs rather than defending against what the LA want.

So .... if I understood this right:

LA cannot force DS to go to a SS (as those exceptions don't apply to him).

DS has the right to MS ....

The Noddy link says that unless one of those 3 exceptions apply then DS has a right to go to the MS we ask for (their italics, not mine!)

But, that would just be a right to MS there (ie with 1:1) not a right to an ARP place.

So ..... a Tribunal would decide if they should admit him to the preferred MS with ARP?

And failing that, if they should admit him to the preferred MS with 1:1?

And failing that, if another MS with ARP or 1:1 should admit him? (Ie our back up plan?)

So, if I understood the above correctly, then we need to visit more schools to find a back up school. Preferably with an ARP.

I have a list of ARPs in another borough and started ringing them last week. But I got a horrible response from the first one I called, a litany of reasons they couldn't let me visit and an extra autistic student would be unfair to children and staff etc. So I stopped phoning as I couldn't face it. I'll get back on it.

Thank you so much @10brokengreenbottles I can't really express how great a help it is to come to this board and get such amazing help.

Would you rather a mainstream place in the school with the ARP who have said they full/aren't suitable or a place in a different ARP?

Definitely focus on what DS needs. If you do end up at tribunal you can simultaneously evidence DS needs your preferred placement because of X and the LA have failed to show one of the 3 exceptions apply because of Y whilst showing the LA's choice isn't suitable because of Z.

To clarify, the ARP is part of a MS school but for admissions purposes is completely separate. If DS is placed in the ARP that is what will be named in the EHCP.

I think I'm attached to the idea of this particular ARP we want because it's a concrete provision that I can actually see and therefore can visualise how we'd manage as a family ie I know which bus routes would get us there in the morning.

So I want to say a place at the MS there would be best for him if he doesn't get the ARP.

But actually my head knows that it would be better for him to be in a different ARP.

In a high quality MS with a well trained 1:1 and lots of breaks he would mostly cope, I think. But he wouldn't learn much. He has such difficulties with his processing, attention, sensory, executive function, that to really access learning he needs an ARP environment with a specialist teacher.

I've started ringing round ARPs in another borough. All about 30-40 min drive from our current home. I visited one yesterday that was brilliant, and they technically have a space but not in his year group, ie the current KS class could accommodate him, but they'd be over their numbers next year when he transferred up to the next KS class. Also the ARP leader, who seemed brilliant, told me frankly that their borough's Send Panel would not, under any circumstances, let our current borough name one of their ARPs as they need the spaces themselves.

Ignore the ARP putting you off. The LA the ARP is in will be consulted, but even if they object your LA can, and must subject to the 3 exemptions, still name it.

Up to 45 mins travel time is considered acceptable for primary, although many travel further. Don't forget you will get transport to the nearest suitable provision.

If at all possible @CompassNorth I’d really focus on provision within your LA. Cross LA provision does happen but it can be very tricky and a funding nightmare that I have seen twice result in places revoked.

Thanks for reply @Orchidflower1 , do you mean focus on the provision written in the EHCP in section F? How does it turn into a nightmare when you go to another borough, does F stay the same or does it get changed by the new LA?

Section F stays the same, Compass. The LA the placement is in has no say in section F, and if your LA name the school in section I the LA the school is can not refuse admission even if they object.

Thanks @10brokengreenbottles , so the law says that a school in another LA has to take DS if our LA name it, however the etiquette between LAs is not to name a school in another LA but rather to name a school within home LA?

Fascinating, it seems like as parents we have to be so focussed on finding a school which matches our individual children, rather than just relying on the LA to "do the right thing".

Yes, if named in an EHCP a school in another LA must admit regardless of whether the school or LA agree (exception being if they are wholly independent).

Unless forced your LA are unlikely to name an OOA placement if they have an alternative, and even if they don't it is likely you will need to push. This is more to do with it being more expensive for your LA than anything to do with the LA the school is in. Although one reason the other LA is likely to object is because they want to use all their SS places for pupils living in their LA.

Sadly, LAs can never be relied upon to do the right thing. Parents who can fight and navigate the system get so much more support. The system shouldn't be like that, but it is.

As pp said the section stays the same but LA seem to favour the placements within borough. There are arguments for and against this. I tell families I work with that be prepared if it’s out of borough, despite the legal requirements they can “play favourites” so to speak. I don’t want to be a negative nelly I think it’s only fair that people are told. More often goes on behind the scenes than families know.

My other nugget of advice- School provision and alternative settings can and do change you mentioned that you loved the Ta at one setting, remember that person may not always be there.

I tell families I work with that be prepared if it’s out of borough, despite the legal requirements they can “play favourites” so to speak. I don’t want to be a negative nelly I think it’s only fair that people are told. More often goes on behind the scenes than families know.

Sorry, do you mean you work in a professional capacity with send children and you've witnessed schools in other LAs breaking the law by discriminating against vulnerable children in their care, simply because of their postcode? Have you blown the whistle snd reported what you've seen behind the scenes that the families of these vulnerable kids don't know is happening?

As a parent of a send child, I would be devastated to know I was delivering my child into a school where things were happening to them behind my back. Please do the decent thing and report what you've seen ASAP. Your employer will have a whistleblower policy to protect you from as you backlash for doing so. I believe it's also a legal safeguarding requirement. Please report it.

They ( la and school) don’t break the law, they skirt around it so just stay within the law. I’ve seen it a few times within the last 5 years- across two ( neighbouring) LA. It was only recently I’ve observed it but I assume it’s been going on for longer.

In nearly all of the cases I’ve seen, it genuinely was in the child’s best interest and they were fighting AGAINST the LA. Vague example ( I doubt anyone knows me on here but just in case). Child A lived close to the boarder of an LA. It would have been far more beneficial for child to attend setting in neighbouring LA with specialist unit provision as it met their needs more closely. LA says no- x school in our borough is better with part time 1:1 and that goes down on EHCP. What followed was best described as a “dance” between professionals in the allocated school to prove it wasn’t the setting for the child. They succeed and child is located out of borough.

Another example ( again close to the boarder). Child is allocated school that is further away than one out of borough. Allocated school requires transport provision which would not only be more stressful for the child but for various reasons the family as well. Professionals were able to state that the travel would be detrimental to the SEND chn in the family. It worked but only because the cost of the transport could be offset against out of borough provision.

It does go on- sorry if I didn’t make it clear in my other post. Sometimes it is the money gabbing, book balancing of the LA who are in the wrong. It may not be illegal but it’s not always right. I am sure as well that the examples I’ve seen are not the only occasions across the country.

Can you clarify please because you said:

be prepared if it’s out of borough, despite the legal requirements they can “play favourites” so to speak ... More often goes on behind the scenes than families know.

What are the schools out of borough doing to the children placed there by different LAs? How are they playing favourites, what is going on behind the scenes that families don't know about?

You mentioned money grabbing, do you mean schools receive money through an OoB child's EHCP which they spend on provision for one of their "own" children rather than the OoB child? I am sure that is illegal and not skirting "within" the law.

What job do you do with send children? Are you standing by and watching this stuff happen, or are you reporting it? I am so disillusioned by this EHCP process, I've met a whole host of professionals who are turning a blind eye to children's needs in order to keep their bosses happy and their workloads down. I see that the problem comes from a deeper problem than just individual LAs and there are no easy answers. But if you are turning a blind eye so you can keep taking a salary from this system, you've gone wrong. Find another job.

@CompassNorth that’s really harsh and unnecessary. Everyone I know who works with children particularly SEND chn work long hours going over and above what is actually required. I came here to help you and to see help you I pick some of the nuances of the situation not for you to criticise and dig my out because of my ( highly stressful) job. Good day.

Before you go, please can you explain what you meant by things happening behind the scenes?

You've explained you posted on here to help me - thank you for wanting to help me. But I am freaked out by your comment about schools playing favourites against OoB children, because the school I want my DS to go to is OoB.

The school had previously told me, way back before the placement negotiations formally began , that Tribunal would be our only route to getting DS a place there. I asked what that would mean for our relationship with the school if we did get him in. They said at the end of the day they were all adults and would make it work, they said they're parents themselves and understand why other parents would fight to get their children in.

I think you're warning me that maybe this isn't true and schools are vindictive somehow to children who get in via tribunal. Please, if that's the case, tell me what sort of thing happens so I can judge the risk for my son.

It sounds like you're a teacher working long hours. Maybe you're facing an Easter break of working rather than resting. I don't hate teachers. I just want to get my child into a school where he can get what he needs to learn and be happy.

Compass without wishing to speak on Orchid's behalf, I believe they mean LAs and schools "play favourites" with places, rather than the children themselves. It is undeniable, LAs and schools do favour in house placements. Although not always the case, in general, OOA placements cost LAs more, hence placing in area saves money.

We all know LAs like to flout the law and parents are often forced to appeal to force their hand. We know LAs spend £££ defending indefensible cases and some schools try to put parents off.

LAs, schools and other professionals do discuss DC and parents behind their back. It's why SARs can be enlightening. A SAR for DS1 showed the LA intended to name a school they accepted not only couldn't meet his needs but would be actively harmful. The LA didn't include this email chain in their response but the professional who highlighted it would be a risk to DS1's physical and mental health did. The same SAR for DS1 showed I was often a hot topic of conversation between LA SEND employees. All that showed was I wouldn't be quiet and go away, I held them to account and forced them to provide what DS1 needed and that on 2 occasions I lived up to the crying, irrational middle aged women they had stereotyped me as.

Take a deep breath and focus on getting what DS needs. If that is an OOA placement then push for that. Find the placement you think meets DS' needs best - be it in area or out.

@10brokengreenbottles Thank you for explaining. I'm sorry you had such an uphill fight to get the right placement for your DS.

@Orchidflower1 I'm sorry I misunderstood, I thought you were saying you'd witnessed schools behaving vindictively to OOB children. Two years ago a teacher told DS that he'd made another teacher ill, that it was his fault the other teacher was off sick. It was nothing to do with DS, the teacher was having a nervous breakdown and other families just removed their kids from the school and went elsewhere. We couldn't get any other school to take DS because of his AN so he had to stay there, and we watched him crash apart as the poor teacher fell apart. He ended up screaming and lying on the pavement when we turned into the street his school is on, because school had become such a horrendous experience for him. I said I didn't hate teachers - and I don't hate the poor teacher who had a breakdown - but I do hate the culture in that school that allowed the other teacher to think he could tell my 5 year old child that an adult's breakdown was his fault.

Yes, I can see that LAs would favour giving placements to children within their own borough. But the LA we're in doesn't have any ARPs, that's why we've had to look outside borough. As 10green says, I will keep looking til I find him the school he needs.

@CompassNorth thank you for your apology. I appreciate that things are stressful for you.

10 explained it really well. That was what I was meaning so I am sorry if it wasn’t clear. I spend my working life advocating for and supporting children and young people who have SEND. Quite often these family’s have EAL so the process requires far more hours than I am paid for. It feels disheartening when step out of the school/ PRU setting to someone questioning your dedication.

Please be aware that although nobody will love your dc as much as you do, the vast majority of professionals you meet do want to do the right thing.

yes - if mainstream would interfere with the education of other students.

No, it's not fair.