Advice needed appealing section B, F and I at tribunal

[MidgeFragnets]

Has anyone been through this?

Son has severe autism and GDD but is in a mainstream (reception). LA have consulted with seven special schools of which two remain outstanding, but five have said can meet his SEN but no places. They have named his mainstream school in section I. Council are in special measures for children's services, have long standing issues and notoriously incompetent.

We have tried escalating via head of department etc, but to no avail. We have spoken to a legal rep and they have advised our case is clear cut and we would win as it is very clear from my son's level of functioning that he needs specialist.

Has anyone submitted the appeal and represented themselves at tribunal? The rep we spoke to said it is fairly easy to do once you know how, but I'm wondering how much time it takes and if there is a particular way you need to prepare the paperwork for appeal, or do you just submit the paperwork as it is received? We are willing to spend the money on representation, but I was taken aback by the shortness of the appeal form.

Do we need any extra assessments? His EP reported he is at lowest levels of functioning on all domains apart from one which was moderately low. SLT and paediatric report also highlighted keeping him safe would be challenging and his expected outcomes are not in line with what you would expect a child to achieve in a mainstream school.

If anyone could share their experiences and offer advice it would be much appreciated.

Easier said than done, but try not to worry, the Tribunal process is designed for parents to be able to represent themselves. If money is limited, focus on independent assessments rather than representation - representation can only work with the evidence they have. Remind yourself the majority of appeals are upheld. Submit everything you have now, but then you can submit further evidence at a later date as you get it. You will get a final evidence deadline, but even after this it is sometimes possible for late evidence to be accepted.

Whether you need additional assessments depends on what evidence you already have and how detailed, specified and quantified it is. Are they woolly and vague? If you do, are not eligible for legal aid but can’t afford them, Parents in Need can sometimes help fund them.

Unless your preferred school is wholly independent (is it?) the LA must name your preferred school 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.

Being full is not defined in law, and on its own being ‘full’ is not enough of a reason to refuse to name your preference. The LA has to prove the school is so full admitting DS is incompatible. The bar is higher than many LAs admit. It is more than an “adverse effect”, “impact on” or “prejudicial to”. Unless the school is wholly independent, the LA can, and must, name the school regardless of the school’s objections unless the LA can prove one of the reasons above.

With that in mind, what are the exact reasons the LA is refusing to name your preference?

Have you looked at all schools within travelling distance, including independent and out of area schools?

We named a maintained SS as first preference and an OOA foundation school was second preference.

The mainstreams consultation which ended up being named cited said:
The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) of the child or young person

The rest of the SS cited the other two reasons. We are asking the LA for the evidence relating to the SS reasons. They are avoiding giving us the reasons in full or any evidence relating to the consultations as we think its clear the only reason these reasons were given were the schools are full. They have consulted with special schools and only son's current mainstream which says to me that the reports from consultant, EP and SLT show high level of need. We are getting an additional letter from consultant to state sons issues are severe. I'm trying to gauge if we have enough evidence. The mainstream are very supportive and I think we need to film my child too as I heard you can supply this as evidence. He is non verbal and rarely sits down, so his struggles are quite obvious.

The maintained SS we named has an outstanding OFSTED. The LA said all SS said they could meet son's needs. So the reasons given don't stack up to me.

You need to ask exactly what is incompatible with placement at the SS. Stating it is incompatible isn’t enough.

Make SARs both to the LA and schools for copies of the consultations and any communication.

I did a SAr back in July and still haven't go it! I did ask them why and I got the usual shite from them. I am going to do one specifically for this and state that my last SAR is overdue and would appreciate a quick response on this one. The LA are monumentally shit and have been for sometime. Surely they have a duty to share this info without a SAR?

We are really trying to get the information out of the LA but they avoid saying anything that might make them look underhand - which isn't really difficult - and when we go to the ombudsman I think it will be clear.

If the LA ignores the SAR, the ICO has a model letter you can use to complain. If that doesn’t work, you can complain to the ICO (although that isn’t quick at the moment). Once you have appealed to SENDIST, you can also request they order the LA to release information. Make SARs to the schools too.

I've just had a call from a really crap independent wanting to assess my son. Presumably they are considering offering him a place, which we aren't too happy about. It's a charity run school and from what I can gather from the staff reports, it is run like a business with overworked staff who are poorly trained and demoralised with terrible management. We will still go as we may be pleasantly surprised, but that's a red flag for me. I've worked in these sorts of organisations and they really don't care about service users.

We did name a maintained LA school which has a good reputation, so would have thought that would be preference over an independent school. Are we able to decline and insist on our preference? Would this affect where we stand with the tribunal? Do we need to submit all of our evidence or have to write a long statement when we submit the application, or can we do this later. Sorry for the questions, you are very knowledgeable and of great help 😀

As I posted previously, there are limited lawful reasons for not naming ur preference. If your preference is the maintained SS, appeal. You don’t have to submit all information/evidence with the SEND35 form. Send what you have and you can send further later as you get it.

You can refuse any school place offered and stick to your guns for your requested school placement. I've just attended a JADR order to settle the dispute over sons education placement. After fighting me all the way, tribunal was set for 25th April, LA entered the room and offered me my requested placement. My reasons for refusing the LA'S chosen school was the distance from home. Would take over an hour to get there, over an hour back. Preferred school was 4 miles away! Throughout all this, I worried, I had so many sleepless nights, I lost weight, broke out in acne... and the judge was kind and understanding. Remember the main thing. The main thing being what YOU request by law should be applied to your child's EHCP. you know your child better than anyone and you only want what's best for them. Try and not worry as the tribunal judges are not like the local authority, they have your child's best interests at heart.

Hi Lotty, thanks for adding your own experience to the thread and congratulations on getting rhe place for your child. The whole process is awful and has been hugely stressful for us. You have to learn so much and nagivate a really confusing system, whilst coming to terms with your childs diagnosis abd dealing with their needs day to day in a failing system. You have done incredibly well, and I hope your family can relax a little now.

Our tribunal isn't until the 18th of December, so a long way off. We have already had an annual review and are waiting to see what the outcome of that is as we did make some changes to the EHCP. My son's mainstream have costed up his place to stay there and it is far higher than his chosen specialist, which goes in our favour. The SENCo will send this to the department of education if the LA refuse to pay. Not sure what this will achieve, but useful evidence if we still need to go to tribunal in December. The costing was so high because they do not have dedicated spaces or staff for my son and are using rooms other children have to use as he can't be in the classroom at all.

The council have stated my son is a priority and they did apply to the department of education for funding to build two specialist schools in Oct 22, but as usual our lovely useless Tory government declined this. I don't always take the LA seriously though. I think they will eek this out for as long as possible. They have said Sept this year could be when he is moved, but this is usually placating bullshit. Every term he is in mainstream is likely to save them about 8k excluding transport, so it is in their financial interest to go to tribunal instead (which costs them 1.5k in comparison). We have 240 kids awaiting a specialist place in my council. It is utterly horrendous and negligent in my opinion, but it isn't really their fault as they tried to increase capacity and got declined by the D of E.

Did your child get declined at your chosen school based on incompatibility with the education of others and resources no places)?

I'm not sure what to do if my annual review amendments get declined. I will have to then appeal section B and F too and don't know whether this is a new tribunal or not.

Lots to work out as usual!

Bless your heart, i completely know where you are coming from. Throughout this whole process i honestly thought my reasons would be ignored (as they had been the whole time) and that they would do what they want regardless of my sons needs.

Thank you for your kind words, I am so happy with the result and don't undertand why they couldn't just do this in the first place! But it's the local authority so need I say more... 🙄

Yes he was refused for all those reasons which is rubbish In my opinion as mainstream schools always take more than they should and don't get half as much funding as special schools do!

It's a sad statement of fact that our children with special needs have to fight tooth and nail for their basic human rights. The right to an education that is suitable for them.

My original tribunal date was actually 29th September 2024, you may find it moves date hopefully, you will get around two weeks notice.

I also didn't know at the time of compiling my sons education health care plan with the local authority that BY LAW, they are obligated to name your chosen school unless they can PROOVE that your child attending your preferred school will cause other children's education to suffer. Let's be honest how on earth would they prove that?

Now I am on the other side of this I can see clearly that the law is actually on our side as parents. At the time it feels hopeless and you feel like you are fighting a losing battle! But hang in there, you are your child's voice because he does not have one at the moment. You are fighting for what's best for him. My research found that almost all matters brought before the tribunal ruled in favour of the parents.

My advice to you is keep a paper trail. Keep every bit of correspondence from local authority, do not converse via telephone.

If I can help in any way please message me, I will keep an eye on this thread and will keep your family in my prayers. You got this mama!

BY LAW, they are obligated to name your chosen school unless they can PROOVE that your child attending your preferred school will cause other children's education to suffer. Let's be honest how on earth would they prove that?

That’s not quite accurate. Unless the parents’ preferred school is wholly independent the LA must name your preferred school 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.
(Section 39(4) CAFA 2014)
The bar is higher than many LAs admit, but there is a point where LAs can prove incompatibility.

OP, are you already appealing B&F? If so, any amendments that are the result of the AR can be incorporated into the WD process. If you haven’t already appealed B&F you can request to amend the grounds of appeal and the amendments post AR can then still become part of the WD process.

Trust me I seen the form the local authority sent to my preferred school asking what they would need in order for my child to attend. What funding, help, extra support etc. And any evidence to prove all of the above. It was a 13 page form that my preferred school couldn't really answer. It's a lot harder to prove than what you would think.

I am perfectly aware of the legislation and legal threshold, thanks. I even posted the threshold is higher than many LAs admit. My point was the section of your post I quoted is not quite accurate.

But it is accurate? What part of what I said wasn't? Why is there always someone digging someone else out on the Internet 🙄 the local authority HAVE to prove all of the above. Its pretty impossible to do so AND they have to offer all sorts to try and overcome any issues flagged. I think its lovley that you try and support this mama and give her advice but you really should check facts first before saying mine are not accurate. It was only two days ago I sat down with a judge and the local authority so I'm pretty clued up on it all 😂

Providing the OP with the correct information is not having a dig. If you don’t like people correcting your posts you shouldn’t post incorrect information. I don’t need to check my facts. I do this day in, day out.

Saying “BY LAW, they are obligated to name your chosen school unless they can PROOVE that your child attending your preferred school will cause other children's education to suffer.” is not correct. No judge told you this.

As I posted, under s.39(4) CAFA 2014, incompatibility with the provision of efficient education for others is only one of the lawful reasons for refusing to name non-wholly independent parental preference. They can also lawfully refuse if 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 efficient use of resources. You can see the legislation here.

As I also posted, the threshold to prove incompatibility is higher than many LAs admit, but there is a point LAs can prove incompatibility.

OK no problem.

The judge DID in fact tell me this, in a rather more professional legal way than how I said it but I am not a lawyer or a judge, just a mum who has spent the past year battling with the local authority. I just wanted to share with this mum my experience as I would have liked someone to speak with throughout this whole process. You remind me of the speakers for the local authority who try to throw legal jargin down your throat instead of accepting the main point. The main point being the school is NOT parental preference.

I don't mind being corrected as after all how else can we learn? I just don't appreciate being told that I'm incorrect when I know the truth. I can see you like to believe you are right so that's fine with me.

I'm aware there are other reasons however the fact that the local authority looked into 7 special schools tells me this child is agreed for a specialist setting and most special schools can meet most needs. Which would lead me back to the "full" crap they like to tell you.

I'd rather not fill this page bickering with you over a statement I made to help this mama. You share your knowledge, ill share mine.

If by legal jargon you mean the actual law and the legislation behind that then yes I have posted that. Because it is important for parents to know the actual law.

If you are aware there are other lawful reasons for refusing to name parental preference you will know saying the LA is obligated to name parental preference unless they can prove incompatibility with efficient education of others isn’t quite accurate. How can you know there are other lawful reasons but also think it is correct that the LA is ”obligated to name your chosen school unless they can PROOVE that your child attending your preferred school will cause other children's education to suffer”? The whole point of my post was to point out there are other lawful reasons!

Any judge that told you the only reason the LA can refuse is because of incompatibility with efficient education of others has erred in law because it is not accurate.

Your LA may have refused on this basis and the judge told you the bar was higher than the LA could prove. But no way did they say incompatibility with the efficient education of others is the only reason LAs can ever refuse to name parental preference because it just isn’t correct. So, it isn’t quite accurate to post the LA is obligated to name the school if they cannot prove incompatibility with the efficient education of others.

For example, a school may not be able to prove the attendance would be incompatible with the provision of efficient education for others. But if the LA can prove the school is unsuitable for the age, ability, aptitude or special educational needs of the DC or attendance would be incompatible with the efficient use of resources they can still lawfully refuse to name parental preference.

As you can see from the link I posted, section 39 CAFA 2014 states:

“(3) The local authority must secure that the EHC plan names the school or other institution specified in the request, unless subsection (4) applies.
(4) This subsection applies where—
(a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or
(b) the attendance of the child or young person at the requested school or other institution would be incompatible with—
(i) the provision of efficient education for others, or
(ii) the efficient use of resources.”

You can also see this from this IPSEA page and this SOSSEN page. IPSEA and SOSSEN are the two main charities in England supporting parents with SEN matters. Or are you suggesting they are incorrect too?

As I said you share your knowledge, ill share mine 🫡

That is exactly what I’m doing, including correcting inaccurate information.

👍

OP look at IPSEA and SOSSEN’s websites. As well as the helpful information on their websites explaining the law, they have advice lines too.