School and case worker won’t tell me response - can I get the info via Data Subject Access Request?

[PortUmber]

Hi there. My DS has recently been given an EHCP and is due to start reception in September. It’s now a different admissions process, the school gave their response to the EHCP admission request on the 17th May - but won’t tell me what that response was. Also his case worker won’t tell me as the decision is not finalised.

I really want to know what the response was, because if they are trying to not take DS, I’d rather change the choice of school placement on his EHCP. I’ve had far better responses from his mainstream application (different school) - although he may not be going there due to a different school being stated on his EHCP. I don’t want him to go to a school where they are being difficult about taking him. It’s a faith school but our closest school which is why I requested it in the EHCP. We are not of that faith and the school normally takes 100% of that faith.

So my question is - can I force the school/case worker to tell me the response via a Data Subject Access Request?

Yes, you can make a SAR, google the process and a template to make sure you include all relevant information in your request and make it to both the school responding and your LA receiving.

You can go down the SAR route. However, that will take time and the EHCP should be finalised before then.

When you say DS has recently been given an EHCP do you mean you have a draft but not yet a finalised EHCP or do you mean the EHCP has been finalised without naming a school? If the latter, you should appeal ASAP.

@ThomasWasTortured

I’ve been sent via email the final EHCP with section i left blank until school is named. Why should I appeal ASAP?

Thanks for your reply!

If you have the finalised EHCP you should have already been given the chance to make representations and state your preferred school, following which consultations can take place. Did this not happen?

You should appeal ASAP so you don’t miss the appeal deadline (2 months from the date of the letter or 1 month from the mediation certificate whichever is later) and also to not risk further delays to DS having a place at a school. This is important because the LA may not go on to amend again and name a school. If that happened DS would be left without a place and you would be left having to request an early review, which the LA don’t have to agree to and there’s no right of appeal if they refuse. If you appeal but the LA go on to concede anyway you haven’t lost anything.

As DS is not yet compulsory school age appealing is even more important because whilst under s.42 CAFA 2014 the LA would still have to ensure anything detailed, specified and quantified in F is provided they don’t have a duty under s.19 of the Education Act 1996 to otherwise provide a suitable, full time education.

When you appeal make sure SENDIST are aware this is a phase transfer year and request an expedited hearing.

@ThomasWasTortured

Thank you so much for this.

I’ve stated a preferred school, but I think the school are being difficult - I’m not being made aware of what is being communicated. He has a mainstream placement, and I’m wondering if I can just stick with that placement now. It’s a different school.

It feels really, really horrible. I’m so worried he won’t have a school in Sept.

If section I is blank DS doesn’t currently have a placement. The EHCP overrides any place offered via the normal admissions round. Section I being blank means EOTAS.

You can ask for another school to be named in the EHCP, if that is what you want.

The risk of not having a school named for September, or even later than that, is why you should submit an appeal ASAP.

@ThomasWasTortured

Huge thanks for this.

I’ve just contacted SEND admissions and they said if I appeal, everything will be put on hold and the process could take a very long time as there is such a backlog.

I also contacted his mainstream school who said they were going to reject the request to accommodate him (20 hours a week, and because I asked about COIN units to the Ed Psych - although the outcome of the meeting was that mainstream was best). She’s not made her decision yet, but is going to contact his nursery. I think it’s likely that my preferred placement have also rejected the request.

My head is buzzing but I’m wondering if his current nursery will still take him for one more term in Sept 23 until this gets sorted. I’m really upset. I wish I’d waited until he was in school before starting an EHCP. This was all from my instigation.

Don’t let the LA put you off appealing, they won’t want you to appeal as then they will be held to account. Appealing doesn’t have to stop consultations, not at all. I really would appeal ASAP - the waits are long, but at the moment DS will be prioritised because he is a phase transfer year and he will be out of education come September.

Unless wholly independent the LA must name your preferred placement unless the LA can prove:
-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.
If the LA can’t prove one of these, and the bar is high, the LA can, and must, name the school even if the school objects. However, they sometimes refuse and force you to appeal.

@ThomasWasTortured you are an absolute star can’t thank you enough for how much you’ve helped and prompted me this afternoon.

So he’s been rejected by preferred school - I’m thinking stuff them now.

I spoke to SENCO at initial mainstream school placement and she was going to reject too, but is now ‘on the fence’ having spoken to me. Case officer is going to now push for this school, and she’s thinks it’s likely he’ll get his place there.

SENCO - I think she MAY now accept and is going to have a chat with his nursery.

i just want him in a school in Sept, so I think this sounds hopeful now??

You prompted me to do this though @ThomasWasTortured. This could have been a bigger issue and delay had I not taken action. THANK YOU

@PortUmber just been reading your thread. Don't want to sound like I'm
Pouring cold water as I totally know that feeling of hoping the solution is on the horizon ..., but just want to echo what Thomas said, that you definitely should register an appeal straightaway. Registering an appeal won't in any way slow down or interrupt any process the LA has or the decision of the mainstream school if they are on the fence. You should do BOTH pathways simultaneously, ie register an appeal and also keep going with discussions with mainstream and LA. As soon as the LA know you mean business (by appealing) they will sharpen up their act. If the LA amend the EHCP to name the mainstream, you can just withdraw your appeal.

Definitely do both routes - belt and braces!!

If you still want the preferred school you can appeal. Same goes for if you now want the initial school, even if they say no you can appeal.

Whatever you do, don’t let the appeal window lapse if you don’t have a finalised EHCP naming the placement you want.

@SimilarToAClockShape
@ThomasWasTortured

Thank you!!! I’m really confused as I was told if I appeal - everything will be put on hold. There are so many appeals going through, it’ll delay his placement and it could be well into next year before it goes to tribunal - he’ll be without a school for a year? So is that not true? Why would they lie?
I also asked his case worker and she said it was legal to leave the section I blank
and gave a reason I didn’t understand. Again she must know, so why would she lie?

I’m hoping the school that were going to reject are now going to accept - and I should hear tomorrow.

If they still reject then - I can see about appealing?? If they accept then all good?

And what am I appealing exactly? That the EHCP is unlawful? Or to push the LEA to name a school? Or for a school to accept?

I just don’t get this at all. Final EHCP was emailed to me 26/5.

Are you absolutely sure it was the final EHCP they issued rather than a final draft?

On the cover sheet it should say "status of plan" followed by draft or final. Then a date that the plan begins (if final).

Sorry to be blunt but your case officer is lying. If they have issued the final plan and you register an appeal, yes you will have to join the queue for a tribunal hearing and this can be long (months). That's true. But it's not true that you being in the tribunal queue causes any delay whatsoever to the LA amending an EHCP with a school named that you agree with. That's just a fib.

You can't appeal until they issue the final plan. When they issue this, they should send a covering letter which includes notifying you of your right to appeal within two months.

Have you had that?

The LA will tell you what they want you to know, which won’t always actually be the truth. They can and do lie. You should always check what they tell you with someone truly independent. The LA is telling you what they think will put you off appealing. Appealing does not have to stop consultations or discussions with the LA. The waits for appeal are long, but it won’t be a year as appeals for phase transfers and those out of education are prioritised.

It is legal to leave section I blank. That means EOTAS though, rather than attending a school. If you want EOTAS brilliant, but if you don’t, as your post suggests, and F isn’t written for an EOTAS package then I being blank isn’t good as it means not attending a school.

You would appeal section I and also B&F. Unless wholly independent the school does not have to agree to being named, they can be named against their will.

@SimilarToAClockShape
@ThomasWasTortured

It’s not the draft, it’s the final EHCP that was emailed to me. With section I left blank.

So if the school get back to me tomorrow and states they will accept - should I still appeal?

Why would the case officer deliberately lie and do something that would be detrimental to my son’s education? I don’t get it? Do they want him to not go to school?

If your preferred scgool is named in section I in a finalised EHCP then there is no need to appeal the placement. If it’s not named in a finalised EHCP or it is not your preferred school then yes, I would appeal.

If B&F are inaccurate, incomplete, has provision in the wrong section (e.g. SALT in G not F) or the wording is vague and woolly with wording such as “access to”, “would benefit from”, “opportunities for”, “e.g.”, “regular”, “or equivalent”… then even if your preferred placement is named you should still appeal. A woolly and vague EHCP without all the necessary provision is worthless and unenforceable.

LAs lie for a myriad of reasons. In your case because they don’t want you to appeal.

@ThomasWasTortured

So are there families who don’t appeal and are left without a school place - for many years, or never get a school place? Because section I is blank?

I think I get it now, if the two month time frame elapses - and no school is named. That’s it? No school is required to accept him.

There are parents with DC without a school place when the parents do actually want a school place. Some DC have been out of education for years, unfortunately.

There are also DC where section I is left intentionally blank because they have EOTAS. But that isn’t the case for you.

If you allow the right of appeal to lapse the LA may not then amend section I and if you wanted a school place you would have to request an early review. LAs don’t have to agree to early reviews and if they don’t there is no right of appeal. If that happened you would have to either wait for the annual review or request a reassessment of needs which (if requested 6 months after the previous needs assessment) does have the right of appeal if refused.

Unless the school is wholly independent it isn’t about the school not accepting DS, they can be named against their will.

@PortUmber

Register the appeal ASAP, appealing that Section I is blank.

(Also at the same time appeal anything else that is not fit for purpose, eg Section B and F.)

If the discussions with the LA and school result in the LA saying they will name that school
In Section I, you say "thank you, once you have amended and re-issued the EHCP naming this school in I then I will withdraw my appeal. Until I have an amended final plan in my hands I will pursue the appeal, as this is the only way I can be sure my child will get a placement named."

@SimilarToAClockShape parents shouldn’t withdraw the appeal, the LA should concede. It might seem like a minor point, especially if you have an amended finalised EHCP in your hand, but it is important for accurate statistics. And if you don’t have the amended finalised EHCP in your hand the LA may well go back on their word once you have withdrawn the appeal.

Oh my goodness, thank you from the bottom of my heart

@ThomasWasTortured
@SimilarToAClockShape

I will be appealing.

What a learning curve today has been.

@ThomasWasTortured
@SimilarToAClockShape

Sorry - looking at his final EHCP section I, it doesn’t name a school - but it does say “a mainstream primary school”.

i apologise for the confusion - I assumed completely blank as covering email stated school not named.

That doesn’t change much. I would still appeal.

Remind the LA case law (MH v Hounslow [2004] EWCA 770) states when mainstream is named as type they should normally name a particular school.

Thanks Thomas!