Ehcp and nursery

[MentyB]

Hi I'm not sure where to ask this but hoping someone might know. We are currently doing the ehcp process and we're supposed to start school this September but deferred until January. The place we have is mainstream and won't be able to meet need. If we can't secure a place for January would the ehcp fund her staying at nursery full time until September if the nursery are happy for her to stay? She needs the routine and interaction and as much as I love her if I have her at home until she gets a place I'm going to really struggle.

If the EHCP is finalised, the funding will be for whatever placement is named in section I. If that is the nursery, that can be funded. However, if another placement is named in section I and you decide to make your own arrangements for other education, the LA doesn’t have to fund provision - they may say you are making suitable alternative arrangements thereby relieving them of that duty just like they can do if a parent decides to arrange for their child to attend an independent school that is not named in section I.

Where are you in the EHCP process?

We have just had the EP and SALT assessments and they have to make a decision by next week. What happens if they can't find a place for on January? Will she get stuck somewhere usuitable?

If/when you receive the draft EHCP, you will be able to state your preferred placement. Unless the school is 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 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 prove one of these is high. 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 DD is incompatible. The bar is high. 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 they can prove one of the reasons above. You only need an offer of a place for a wholly independent school. However, this doesn’t stop LAs refusing and forcing parents to appeal.

If/when the LA finalises the EHCP, they will (in most cases) name a placement in section I. If you disagree with the placement, you will need to appeal. In a minority of cases, the LA will only name a type of placement in section I of the EHCP. In that case, you would a) need to appeal, b) ask the LA how they intend to fulfil their duty under section 42 of the Children and Families Act 2014 (and if DD is compulsory school age in January, section 19 of the Education Act 1996), and c) if they have named mainstream as type, remind them case law determines where they name MS as type they should normally named a specific placement. In a small number of cases, section I will be completely blank. If that happens and you want a placement in a school, you would need to follow a & b as above.

If you have to appeal, and many do have to appeal for SS, even if your appeal is successful, you will not have a place in your preferred placement by January.

You might not even have a conclusion by September next year. For example, if you have to appeal refusal to issue and content/placement, unless the LA concedes early, you won’t have the conclusion of the content/placement appeal by next September, even with expedited hearings.

Wow ok. Thank you. I know the process is difficult but there just seems to be so many new hurdles and possible issues.

Can I ask what happens if I have to appeal either if they refuse to issue or if the won't give a place we are happy with? Do I have to send her to mainstream or deregister? Or is there another option? I guess if they won't issue one (I'm hoping this is unlikely as both experts said how complex her needs where but again I know it can be a nightmare) then those are my only options?

Unfortunately, DD having complex needs doesn’t necessarily mean you won’t have to appeal.

You would either have to make your own arrangements (if the LA refuse to issue or issue but refuse to name your preferred placement), send DD to the placement named in section I of the EHCP (if the LA issue but refuse to name your preferred placement), or send DD to the placement offered via the normal admission process or make an in-year application for a different placement (if the LA refuse to issue).

Unless you make your own arrangements (be that via a setting or EHE), the LA would still be responsible for ensuring any provision detailed, specified and quantified in section F. If DD is unable to attend (in a legal sense rather than you ‘just’ believing, rightly or wrongly, the placement is unsuitable) and you don’t make your own arrangements, once DD is CSA, the LA would still be responsible for ensuring she receives a suitable full-time education.

Thank you. This whole process is so overwhelming. The place we currently have told us they will not take her if she still isn't toilet trained and it's highly unlikely she will be, so I am assuming they will refuse her place with or without an ehcp. I suppose we will just have to wait and see if they agree to issue. I belive the deadline is in 2 weeks, then I guess we will have to go from there.

That is unlawful. The school cannot refuse to admit DD because she is not toilet trained. That applies with and without an EHCP. Do you have that in writing? They cannot require you to go in to change DD either.

I do, when I asked them to defer start until January I asked they put it into an email because I do t have the highest faith in them and they did but put in 2 stipulations. 1. They wouldnt be giving her 1:1 and 2. She had to be toilet trained as they don't have the facilities or manpower.

I would email the HT to remind them of their duties under the Equality Act 2010 and Children and Families Act 2014 as well as various statutory guidance such as supporting pupils at school with medical condition and the SENCOP, and the Admissions Code. Point out refusing to admit DD because she is not toilet trained is unlawful and leaves them open to a disability discrimination claim. If that doesn’t work, formally complain and consider a DD claim. I would also bring it to the attention of the LA and, if relevant to that school, the MAT.

Full-time 1:1 without an EHCP detailing, specifying and quantifying 1:1 is unlikely, but they cannot use that as a reason to refuse admission.