LA forcing my ASD son to move residential placement named on EHCP, injunction, tribunal, Judicial Review?

[mummy1970abc]

My 17yo son (ASD and complex SEMH) has an EHCP that was updated in spring this year. It has a dual registration placement listed in section I. He’s a section 20 kid. He goes to a mainstream college that stated that they could not meet unless the (at the time current) residential SEN placement took over the aspects of the EHCP that they could not fulfil. This dual registration has worked really well.

The LA then sent notice (last week) to the residential part saying that he will no longer be attending as of the start of August… 4 weeks time..
They have given us no reason, just that they will no longer fund that placement. They want to put him in alternative accommodation where he can transition to adulthood in a supported environment. Which is exactly the support he is currently getting.
The residential setting is an independent therapeutic Sen school and home.

He is at the end of his 1st year of a 2 year course and will therefore be leaving both places in 11 months and then going to uni. This battle has been going on since Jan of this year and has caused a significant decline in his mental health. He has a history of ASD induced psychosis caused by an increase in anxiety.

I have notified the LA that they are breaching section 42 of C&F Act.. but they don’t care and are doing this anyway. I am being fobbed off with delays to the tier 2 complaint. I have raised it with the LGSCO who are waiting to see what happens.. I have contacted our councillors and MP.

We have an EHCP meeting on Monday as reports were not available at the review meeting from Ed psych etc. and these are needed to make changes to the support and outcomes section. I know that the LA will use this as an opportunity to change section I.

And when they do we will go to tribunal.

I asked them whether going to tribunal would put a hold on their changes and make them adhere to the current EHCP - and they said “no” they will push ahead with their changes.

So in 4 weeks time, my son, with no explanation will be forced to move, possibly to live on his own, they have no intention of listening to his wishes documented in the EHCP meeting as they have already served notice.

None of the professionals involved want this move to go ahead. But the LA have made the decision to do it anyway..

Please give me your thoughts and advice - please be kind - I am at my wits end.

Thats why you need to find out about the care act assessment

You need to know what the adult services assessment is for how much/if at all care needs he has for when he is an adult

Children's services end at 18, so no placement is going to be funded by them post 18, it should (if applicable) transfer to adult services but its extremely rare for adults to need residential care, hence the move now to semi independent supported accommodation (Im guessing).

He will jointly (or should have, depends on the LA) have access to care leaving services at 18, and have a PA. However there is no legal duty for post care leaving services to fund placements, although they often do. What they wont do is fund residential care

If he needs residential care from a health perspective that is a different matter of course, but again that is an adult services role

"Over the past year the school has split its school in two.. boarding is now a care home and the school is non-residential.
still owned by the same company and if you look at their website etc - it still refers to itself as being a residential special needs school."

My son's school is like this. for residential pupils the school bit is named as a day placement in section I and the care home is a section 20 placement. Being split like that makes it easier for the school to refuse potential residential pupils and for the LA to move pupils.

You need a pre action letter /JR. They should not be changing placement without issuing a new EHCP in order that you can appeal and even if they did that I would still suggest pre action as it's like the quickest solution

Thank you - I will look in to the care act assessment, it is all so complicated as his EHCP will be replaced with whatever support is provided by the Uni. The Virtual School have said that they will continue to support him through Uni.
the only thing the SS have said so far is that it is unlikely he will pass an adult social care assessment..
but there again, the social worker said a couple of days ago.. “He has a history of psychosis?” I told him to go a read the files from the start.. back in 2018

😞

Is it that the child leaving care pathway can meet the same needs only for less money, so their grounds are public expenditure?

He wont be a child post 18, so children's services wont be funding a placement in terms of where he lives. His education is a separate matter and it would appear that the 6th form he will go to wouldnt incur a funding need from SEN anyway (if I have got the gist right)

Therefore, there doesnt seem to be any real need for him to be in residential care from either a social care perspective or an education perspective

OP its natural for you to feel anxious and placement moves are difficult, children need support with them of course, but can I ask why you think he needs residential care? Its extremely unusual for children of his age to be in residential care full stop, let alone with no plan to move to a more independent step down provision?

Point out that under Regulation 18 of the SEND Regulations, when changing a post 16 placement they are supposed to give five months' notice. That is for good reason, amongst other matters to give you a chance to appeal. Tell them that unless they reverse this and comply with their legal obligations you will be pursuing judicial review.

I think you might be able to get legal aid in your son's name, but if not contact SOS SEN. https://sossen.org.uk/whats-judicial-review/

The OP mentions in her first post that she has been battling this since January.

I had been working on the assumption that the recent written notice was the final notice after the appeal process had been followed rather than brand new information that was a complete shock to the OP, but perhaps the OP can clarify?

I don’t think the OP has been through the appeal process. She hasn’t even had the finalised EHCP naming another placement. The early review is tomorrow. She mentions appealing when an EHCP amending section I is finalised thus giving her the right of appeal.

Thank you - that’s helpful

Actually - all I’ve had, officially, is an informal email from his social worker, a month after the amended EHCP was finalised at the end of March this year (which names both places)saying that they were not going to continue funding this placement after July.

When they served notice to the residential setting they told the residential setting not to tell me… 😳

His college have already confirmed that they cannot meet need, based on his EHCP. They agreed to accept him based on the other areas of his EHCP being fulfilled by the residential SEN placement.

he needs residential care to fulfil the requirements of his EHCP. He is prone to running away, self harm, attempted suicide, psychosis, depression and anxiety - all as symptoms of his diagnosed ASD. So until he is supported to manage his behaviour he will need 24 hour care..

He will eventually learn and is making good progress but everyone is in agreement that he is not there yet.

He has complex mental health issues and complex ASD issues.

Is he subject to DOLs?

How is he prevented from running away?

If he has ever been under a section 3 in hospital might be worth seeing if can do anything via section 117 which is supposed to give unlimited funding for education, health and social care to avoid readmission. Its difficult to get it in practice but there might be a way.

https://www.mind.org.uk/information-support/legal-rights/leaving-hospital/section-117-aftercare/

@bellac11 can I ask if you work in this area, because you write as if you are in a position of knowledge. I'm surprised by your confidence in stating that it's very rare for children of his age to need residential care. I know for a fact that if I wasn't willing and able to support my DD1 at home, she would need residential care and so would many of the young adults she is/was educated with.

I would have thought that from the OP's limited information about her DS, it would be impossible to say whether he needs residential schooling or social care. The fact that he has it means that at some point someone felt it was necessary.

Not heard of DOLs?

Nope.. they always managed to get him back home

He doesn’t need to run away anymore.. as the school (well, now residential placement) has continued to meet his needs, which means that they manage his triggers and anxiety really well.
we have had the first violent meltdown since attending the school (2021) this new year, it was within 2 weeks of them suggesting that he should consider moving.
he was loud, verbally violent and punched a hole in one of our doors.
needless to say, I took him straight back to school where he was able to become calm and regulated.
Since then he has started to question everyone, become more angry and cry every night.
his mental health is at an all time low.. and pretty much where we were at before being placed in the SEN school.

I have 3 ND children at home 2 of which that also now have PTSD from his behaviour before. The incident at New Year was super triggering for them.

They love him, he loves them, but when he goes in to meltdown it’s scary. He’s 6ft2 and running around with knives, shouting and swearing, trying to kill himself. The last few years have been great. He’s so much calmer and is making real progress with building trust with his younger siblings.

this was a real scary moment for them and one that was triggered by this suggested move.

he is looking forward to going to Uni and knows that he will move, but this is within his control.

If DS lacks capacity and attends a residential placement the LA need to consider whether the threshold for deprivation of liberty (DOL) is reached, and if it is make an application to the Court of Protection. See the case Birmingham CC v D and W [2016] EWCOP 8.

Thank you - I will go and google that

He would only need a DOLs order if there were aspects to his care which deprive him of his liberty, ie, does he need his phone removing, messages checking, emails checked, are the doors locked to prevent him running away, is he restrained to safeguard him rather than to protect others, and any number of other issues.

He doesnt need to lack capacity either.

Deprivation of Liberty should only be used when the person lacks capacity. See this Mind link, although there’s plenty of others on google confirming the same.

OP the case law I mentioned is briefly explained in the Noddy guide, which is written by 2 barristers experienced in SEN matters.

Thank you everyone for your input..

with your help - I think I have caught them out..
tomorrow’s meeting, being referred to as a review meeting.. it isn’t a review meeting… as they have not followed the rules for a review meeting. I have received no notification that it is a review, I have not had reports circulated from the people who should be attending, etc.
my understanding was that it was much more informal, and the LA have hijacked it. But they have not gone about it legally. Huzzah.
So, therefore, if they want an official review meeting, they must call it and proceed legally.
phew.. a few more weeks reprieve I think..

also, the section 18 5 months thing is a doozy. No formal notification has been given.

Thats for adults. OPs son is still a child

Children dont need to lack capacity for a DOLs.