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My DD has a formal diagnosis of ASD and an EHCP in which the educational psychologist recommends a SEN provision due to her needs. So far we have gone to panel twice for three schools and are always told that they can meet her needs BUT it would be detrimental to the education of others (I'm assuming this is the way to say no space without legal ramifications?)

I'm so frustrated. She's 5 in January, non verbal and in a mainstream school which are doing their best but it's utterly unsuitable for her educationally.

I've got her EHCP coordinator to out her forwards for all the complex needs schools within a 40 minute radius because longer travelling at her age would not be ideal. Is there anything else I can do to accelerate the placement or am I now just waiting for a space?

Do you currently have a finalised EHCP? If so, do you currently have the right of appeal?

The bar to prove incompatibility is higher than many LAs and schools care to admit. What exactly are the reasons?

When you say all the complex needs schools within 40 mins, does that include any independent and out of area schools?

The EHCP is finalised and as far as I know the annual review is February. How would I know about right of appeal?

The reason (as given to me via coordinator) is that needs can be met but to admit her would be detrimental to the efficient education of others.

If they are fobbing me off what can I do next? My fear is that because she doesn't have difficult behaviours she will be kept at mainstream despite her making little to no progress there as they 'can meet her needs' by being a glorified babysitting service.

When the EHCP was finalised, there should have been a letter with it informing you of your right to appeal. The appeal window is 2 months from the date of the letter or 1 month from the mediation certificate, whichever is later.

If you don’t currently have the right of appeal, you should request an early review of the EHCP. On their website, IPSEA has a model letter you can use. Unfortunately, the LA doesn't have to agree to an early review and there isn't the right of appeal if they do. If they refused, you would have to wait for the AR or request a reassessment of needs which does come with the right of appeal if refused.

Following the early review or AR, you will have the right of appeal. If the LA does not name your preferred placement, you should appeal.

Unless your preferred school is wholly independent (is it?) 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.
The bar to do this is high. It is more than an “adverse effect”, “impact on” or “prejudicial to”.
You should ask exactly how it DD being admitted would be detrimental.

Ah I see. No I don't have right to appeal as the EHCP was issued in March. I will ask for an early review though.

None of the schools are independent but I will push for proof that her attendance is incompatible with the proficient education of others as this is what they are saying.

My next question (and I am really grateful for you taking the time to help me) is what level of proof is acceptable and if they can't prove this is my next resort legal action?

When you have the right of appeal you should appeal regardless of what the LA’s answer is. There isn’t a straightforward answer as to what is enough proof. Ultimately, it is SENDIST who decide. This booklet from IPSEA explains more about appealing the placement and the law. For now, focus on requesting the early review.

We were in a similar situation and were massively helped by an independent expert. She knew all the systems inside out. We’d have been lost without her.

Whenever I say this other MNetters caution against so I guess there are some dodgy ones out there. Mine came through a personal recommendation. Had to pay, but she could have charged much more and it’d still be worth it.

People caution against it because advocates are unregistered and some can do more harm than good, so people need to pick wisely if they go down that route. Also, advocates (and solicitors and direct access barristers) can only work with the evidence they have, so unless money is no object, it is better to prioritise independent assessments.

In the OP’s case, right now, she doesn’t need legal help even if she does want to go down that path for appeal. She doesn’t currently have the right of appeal, so needs to request an early review, which she doesn’t need an advocate for. IPSEA has a model letter she can use.

Can only speak as I found it. It was hugely helpful for me.

TBH, @BlueBrick when I first joined this MNet, I thought you might have been the person who had advised me! You really reminded me of her.

Sorry @SachiLars, I wasn’t saying you shouldn’t have used the person you did. I was explaining why people are cautious about advocates.

If you used an advocate, it wasn’t me. Although I do now work very part time for a charity supporting parents of disabled DC, not only focusing on EHCPs but my caseload includes that.