SEND Legal query answers

 IPSEA Answers:

Parent Asks:

I have been working with LA to identify a school for a couple of years unfortunately covid has had an impact on finding a school for my son who has high functioning autism, ADHD, sensory modulation & is severely dyslexic. The LA identified and have named a school in the EHCP prior to me having the opportunity to visit. This school was named out of the blue without any consultation with me. The school is a maintained school SEMH which is currently failing in all areas. Having now visited the school it is not an appropriate environment for my son. The principal of the school advised the could meet his needs but the environment is not appropriate due to the type of SEMH provision. The LA are insistent that I send my son to this school despite mediation. Out of the blue today, I have heard from his current school that they have been advised that he is to be removed off Roll from January 22 which will leave my son without a school forcing me to send my child to the school of their choice. The LA have not shared this information with me. Recent mediation in Nov has requested my son EHCP goes back to the panel which was due yesterday. I have not received the outcome of the panel and have engaged an advocate to prepare for the appeal. Are LA legally allowed to withdraw my son's place at his current school whilst we are midst mediation? Are the LA allowed to force me to send my child to a school that is not my preference?

IPSEA Asks

When finalising an EHC plan, the LA must consider any schools the parent requests and carry out consultations with those schools (unless the school is wholly independent). If a parent does not make a specific request, then the LA must consult with schools it deems appropriate and makes a decision to name a school. The LA does not need permission from parents to name a particular school as set out in section 40 of the Children and Families Act 2014. Once a school is named in section I of the plan, then this is the school that must admit the child and the child will be removed from any other school roll. It is unfortunate in your case that either the LA was unaware that you would prefer your son to remain in his current school until you had found a more suitable placement, or that the LA knew this and chose to name a different school regardless.

As a first step, we would suggest that you contact the LA and explain why the SEMH school is not suitable, that you would prefer your son to remain in his previous school and that you have not been informed of the outcome of the recent panel meeting. Hopefully, a discussion with the LA will be enough to rectify the problem and your son’s previous school can be added back into the EHC plan.

Whilst waiting for a response, you should also consider submitting an appeal to the SEND Tribunal to appeal the contents of the plan (sections B, F and I). The deadline for submitting an appeal is 2 months from the date of the final EHC plan or 1 month from the date of the mediation certificate, whichever is later. You can find more information about submitting a contents appeal on the IPSEA website here: Appeals about the contents of an EHC plan | (IPSEA) Independent Provider of Special Education Advice

If the dispute is then dealt with and agreed with the LA, the appeal can be withdrawn, but we would suggest submitting your appeal as soon as possible to prevent missing the deadline.

Alternatively, you do have the right to Electively Home Educate (“EHE”) but we would suggest that you consider this very carefully before taking this option and seek advice beforehand from IPSEA’s Advice Line or your local IASS team. You can find more information about EHE here:  Home schooling and ‘education otherwise’ | (IPSEA) Independent Provider of Special Education Advice and here: Education Otherwise - | Education is Compulsory - School is Optional

Parent Question:

We had to take the LA to Tribunal to get our granddaughter, who has DS into the school of our choice. Is this decision portable between local authorities?

IPSEA Answers:

Unfortunately the decision re placement made by the SEND Tribunal is not portable. It would be for the new LA to decide, within six weeks of the family moving to the new authority, whether they will maintain the statement as it is (including leaving the name of her current school in Part 4) or whether they would be looking to reassess your granddaughter’s needs, transfer her to an EHC plan and potentially name a different school. Ultimately it will come down to costs and whether the new LA feel they have a suitable school nearer to where they will be living which is cheaper. However, given it was impossible for the current LA to show this was the case it may well be that the new LA do not have such a school available.

Parent Asks:

Can a child who has successfully transitioned from an alternative provision to a specialist school have the alternative provision named in section I of an EHCP?
The relationship with the specialist provision has broken down, and the parent is requesting the child attend the previous alternative provision due to the positive impact it had on her son.
Our LA says it is impossible, but I cannot find any legislation to say it is or isn't an option.

IPSEA Answers:

A parent has a right to request specific types of placement are named in an EHCP. These are set out in section 38(3) of the Children and Families Act 2014 (“CAFA”) as follows:

(a) a maintained school;

(b) a maintained nursery school;

(c) an Academy;

(d) an institution within the further education sector in England;

(e) a non-maintained special school;

(f) an institution approved by the Secretary of State under section 41 (independent special schools and special post-16 institutions: approval).

When a parent makes a request for one of these, then the LA can only refuse if one of specific reasons apply as set out in s39(4) CAFA as explained here. Alternative Provisions (APs) may fall into one of these categories or not. If the particular AP does not, then a parent can make representations for an independent or other type of placement to be named, and the LA must consider this, although it can refuse for any reason.

In considering the request, the LA must have regard to the wishes, feelings and views of the child and parents (s19 CAFA), as well as regard to the general principle that children be educated in accordance with their parents’ wishes “so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure” (s9 Education Act 1996).

The specific duties of the LA will depend on the legal status of the AP and whether it is registered as a school or not. You can find more information about naming a placement here: https://www.ipsea.org.uk/choosing-a-schoolcollege-with-an-ehc-plan. The parent may also choose to arrange a call back with one of IPSEA’s helplines to discuss the specific placement: https://www.ipsea.org.uk/Pages/Category/service-overview.

Parent Asks:

We are being bullied into considering a special school for my child. My child is 8.5 years old, nonverbal and on the spectrum. we preferred a mainstream setting as he has moved countries (he came to the UK 8 months ago). he has an EHCP with level 5 funding. The school feels he cannot survive in the mainstream, but he has a 1:1. in special schools that we visited, there are six kids with one teacher. the local council said the school could conduct an early annual review and say they can't meet needs.

Will this mean my child will be off-rolled and out of education or forced into special education?

IPSEA Answers:

As a parent, you have a right to request specific types of schools are named in your child’s EHCP. These are set out in section 38(3) of the Children and Families Act 2014 (“CAFA”) as follows:

(a) a maintained school;

(b) a maintained nursery school;

(c) an Academy;

(d) an institution within the further education sector in England;

(e) a non-maintained special school;

(f) an institution approved by the Secretary of State under section 41 (independent special schools and special post-16 institutions: approval).

If you request one of these types of placements is named in the EHCP, then the LA can only refuse if one of the following reasons applies as set out in s39(4) CAFA:

(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.

Before making a decision, the LA must consult with the placement. However, the LA makes the final decision to name a placement, and, if a placement is named in an EHCP, then it must admit the child (s43 CAFA).

In addition to this, there is a presumption towards a mainstream education within the CAFA and mainstream education can never be unsuitable (s33 CAFA). A child with an EHC plan must therefore attend mainstream unless the parent does not want them to or the attendance of the child in mainstream would be incompatible with the provision of efficient education of others and there are no reasonable steps that can be taken to overcome the incompatibility. This is a high hurdle to meet as generally there are steps that can be taken. There are examples of reasonable steps in paragraph 9.92 of the SEND Code of Practice 2015 that include examples such as using an orientation programme for transition or taster sessions, having an individual workstation and having contingency plans in place.

It is important to note that this does not provide a right to a specific mainstream school; it is a general right to a mainstream education.

Off-rolling is unlawful, and a school can only remove a child from the school roll in specific circumstances as set out in Regulation 8 of Education (Pupil Registration) (England) Regulations 2006, including where a child is permanently excluded or ceases to attend the school. If the school continues to be named in the EHC plan, then it must admit the child.

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Parent Asks:

I would like my daughter to attend in a different borough to where we live. We have just completed the EHCP and have named a school. She is profoundly deaf, and although our borough has provision for deaf children, it would be near impossible for me to drop and pick my other children to both schools. Can I be forced to choose a school in my borough?

IPSEA Answers:

Parents or young people have a legal right to request that a particular school or college is named in an education, health and care (“EHC”) plan (or to express a preference for an independent school, college or other institution).

The parent or young person has a right to request any of the following types of school or college:

• A maintained school or nursery (mainstream or special)
• An Academy (mainstream or special)
• An institution in the Further Education sector
• A non-maintained special school
• A section 41 school.

These are listed in section 38(3) of the Children and Families Act (“CAFA”) 2014.

If the school that you have asked to be named is one of these types of schools the only reason the local authority can refuse the request is if:

• The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) of your child; or
• The attendance of your child would be incompatible with the provision of efficient education for others; or
• The attendance of your child would be incompatible with the efficient use of resources.

This is set out in section 39(4) CAFA 2014. The LA must prove that at least one of these conditions applies in order to dislodge your preference. If you are not sure what type of school you’re asking for, check on the government website Get information about schools - GOV.UK

Use this link to find out more about Choosing a school with an EHC plan. If the LA finalises the plan naming a different school you will be able to appeal against the school named in the EHC plan.

LAs are required to arrange free, suitable, home to school transport for children of compulsory school age who are ‘eligible’, to their nearest suitable qualifying school (section 508B of the Education Act (“EA”) 1996). Your LA may argue that because you have chosen a school in another borough, they are not required to provide transport. However, the LA will have to establish that the school they wish to name is in fact suitable and they will also have to show that your preferred school would be an inefficient use of the LA’s resources. Find out more about the LA’s duty to provide transport to children with special educational needs here.

Parent asks:

My adult son has an EHC plan. It states his College and last year he studied a course with additional functional skills maths and English. This year the College is trying to outsource these sessions to a different centre in a different place already discounted as part of a Tribunal last year. Can they force him to go as it is not named in his EHC plan?

He only had 1 hour of each subject given, so he was not going to progress.Now, he is being provided with 6 hours was this discrimination by the College?

He is completing a pre-uni course in Art but can't progress.What should we do as we do not want him to attend the centre? Can the College do this they seem to be running his EHC plan and not the authority?

IPSEA Answers:

If the EHC plan specifies the college in Section I then this is the place your son should be attending and the college can’t direct him off to another centre for certain courses or lessons.  It’s not within its power to do so.

It’s unclear from the information we’ve got whether the provision of 1 hour per subject was in some way discriminatory.  It was clearly inadequate but this seems to have been resolved by an increase in the amount of tuition being given.  If the EHC plan states how many hours of tuition your son should receive and the college was or is not delivering this, then your complaint is, ultimately, with the local authority (LA).  Under s.42 Children and Families Act 2014, it is the LA (and not the college) which is responsible in law for securing that the plan specifies the special educational provision your son needs and that this is delivered.

If this isn’t happening then a complaint can be made and IPSEA has a model letter which

can be used: https://www.ipsea.org.uk/what-you-need-to-know/model-letters/model-letter-6

Obviously, you can complain to the college first and point out that only the LA can change the provision in the plan and then only by following the statutory process in the SEN and Disability Regulations 2014.  But if college won’t do what the plan says then the sooner the LA are aware of the problems the better.

If the plan is not providing adequate support to enable your son to progress, then this is an issue he can raise (with your support) at the annual review.  It may be that changes need to be made to the plan if the provision isn’t adequately specified or sufficient.

Parent asks:

We have just named a school on my son's EHCP following the annual review. He is currently in mainstream primary (year 4) and we have requested a specific special needs school within our area and under our LA. This is something we believe is required as soon as possible. If my son is allocated a place at the school, can the LA specify when the place will be available? At the moment they have hinted that should there be a place at this school for my son, the earliest he will be able to move is September 2018. I thought under the "duty to admit" - if they agree the school is right for my son then they should allocate a place within a reasonable timeframe?

IPSEA answers:

Where a parent requests a maintained special school (that is a school funded and controlled by the local authority) for a child with an EHC Plan, the law gives the parent the right to have their preferred choice of school named in the Plan. The local authority is required under the law to consult with the parent’s choice of school and, subject to the exceptions below, to secure a place. The exceptions are:

• the school is unsuitable for the age, ability, aptitude or special educational needs of the child or young person; or
• attendance at the school would be incompatible with the provision of efficient education for others or the efficient use of resources

There are two other legal duties which are applicable in this situation. Firstly, the local authority must secure all of the special educational provision set out in Section F of the EHC Plan. Secondly, where a school is named in a Plan, the governing body (principal or proprietor) of the school or other institution must admit the child. These two duties are interlinked as in order to secure the special educational provision, the child will need to attend the school named in the Plan. The local authority cannot name a school in a Plan and then wait for a place to be available.

The only two options available to the local authority would be to ensure the child is admitted to the named school or refuse to name the school for one of the reasons listed above.  At IPSEA we know from experience that local authorities have refused to name a school in a Plan on the basis that the school is “full”.  Clearly, this is not one of the statutory exceptions listed above and a local authority relying solely upon this justification would be acting unlawfully.  In the alternative, the local authority may claim that attendance at the school would be incompatible with the provision of the efficient education of others.  The Special Educational Needs and Disability (SEND) Tribunal has considered what incompatibility means and in the leading case of NA v LB Barnet [2010] UKUT 180 (AAC), 2010  the Tribunal found that the local authority needs to show what difference the admission of one additional child would have on the efficient education of which children.  The test for incompatibility would not be met by merely showing “adverse effect”, “impact on” or “prejudicial to”.

So our advice would be to continue to press the local authority to amend the Plan and name your preferred choice of school and then if the place is delayed you will need to point to the local authority’s statutory obligations mentioned above.  If this doesn’t resolve the matter, then you could make a complaint to the local authority in accordance with its complaints procedure and then complain to the Local Government Ombudsman if the local authority fails to provide a satisfactory response.  Alternatively, you could seek legal advice on whether there are grounds for making an application to the High Court for judicial review.

If the local authority names another school in your son’s Plan, it will need to rely on one of the exceptions to dislodge your choice of school and you will have a right to appeal that decision at the SEND Tribunal.

Parent asks:

A child in my school has had a draft EHC plan for over a year. The LA has consulted with all LA schools and even with independent schools, all of whom say they can't meet his needs. He is now stuck in our mainstream school (although he is a school refuser too). He needs significant specialist support, as per his EHC plan, but the LA does not seem to be rushing to find him an appropriate placement. Parents are beside themselves with worry. Can they challenge the LA to force the school of their choice to take him?

Ipsea answers:

Yes; if the school is:

• A maintained school or nursery (mainstream or special)
• An Academy (mainstream or special)
• An institution in the Further Education sector
• A non-maintained special school
• A section 41 school,

then it can be named in an EHC plan by the LA without its consent. (An LA only needs the school’s consent if it is naming an independent school.) The LA can only refuse to name a school where one of three legal exceptions applies. See our page on choosing a school with an EHC plan for more information. If the LA is refusing to name the parents’ choice of school, the parents will need to appeal against the EHC plan. The first step towards this is getting the LA to finalise the EHC plan – even if it is still unsatisfactory.

As it has been in draft for over a year, the LA will have missed the deadlines which apply as part of the EHC needs assessment process. (Although there were some extensions to deadlines due to Covid-19, these only applied to deadlines which fell after 1 May 2020, and so are unlikely to be relevant here.)

The parents can use our model letter to complain about the delay. If the LA do not finalise the EHC plan, they could either escalate their complaint to the LGSCO or consider sending a pre-action protocol letter in anticipation of judicial review. Complaining to the LGSCO is not a quick process, and given the amount of time which has elapsed already, we would be inclined to advise that the parents should go down the judicial review route. It is highly unlikely that they would actually need to start court proceedings; simply receiving a pre-action protocol letter (the first step in the process) is generally enough to get an LA to comply with a missed deadline.

Once the EHC plan is finalised, the parents can appeal to the SEND Tribunal. The Tribunal has the power to name any of the above types of school in an EHC plan, and can also name independent schools provided the school consents to this. We recommend the parents take a look at our pages on appealing to the SEND Tribunal, and in particular the section on appealing against the school named in your EHC plan

Parent Asks:

Our son (Y10) has an EHCP naming a local independent specialist school that has gone into liquidation. We are trying to find an alternative specialist school for him (when all schools reopen post-Coronavirus); where do we stand with his EHCP for a different school that's likely to be 2 hours' drive away.

Ask IPSEA:

From what you have said we are assuming that the school you have in mind is a residential school and therefore likely to be either a wholly independent school, a non-maintained special school or a section 41 school, as opposed to a local authority maintained school or academy. The answer to your question will depend on whether it is a wholly independent school, a non-maintained special school or a section 41 school.  If you are not sure what type of school you’re asking for, check on the government website Get information about schools - GOV.UK

If it is a non-maintained special school or a section 41 school, you have a right to request it because it is in the list at section 38(3) of the Children and Families Act (“CAFA”). The only reason the local authority can refuse the request is 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 provision of efficient education for others; or
• The attendance of the child or young person would be incompatible with the efficient use of resources.

This is set out in section 39(4) CAFA 2014. The LA has to prove that at least one of these conditions applies in order to dislodge the parent or young person’s preference.

If the school is a wholly independent school, you are still able to make representations for it but you do not have the same condition right to request it. The LA must have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure (section 9 Education Act 1996).

The onus will be on you to prove that none of the schools the LA is offering can meet your child’s needs, orthat the cost of the placement will not constitute unreasonable public expenditure.

Public expenditure includes all the costs to the public purse of the placement not just those incurred by the LA education budget. This can include social care costs, health costs and any other costs incurred by any public body.

If you cannot show this, the LA is under no obligation to look at independent provision. It does not matter that the independent setting proposed is an excellent school and/or better suited to your child’s needs than the school the LA has in mind. LAs are not bound to offer a child or young person with SEN ‘the best’ provision to meet their needs – only what is necessary to meet their needs.

In practice, the most important point to prove is not that the independent setting is better than the LA’s proposed school or college, but that the school or college offered by the LA cannot meet the child or young person’s needs. Where a parent or young person is requesting an independent setting, they will generally need evidence from a professional as to why the independent setting is the only school or college which can meet the child or young person’s needs.

Additionally, there must be an offer of a place from the independent setting. Unlike the section 38(3) schools listed above, an LA cannot order an independent school to accept a child or young person.

The courts have considered situations in which an independent setting should be named in an EHC plan, and given examples of when a setting would be considered an unreasonable public expenditure. You can read about these cases in our case law section.

Parent Question:

I have been looking into flexi-schooling for my autistic son.

I attended a presentation at the TES SEN show by the Hollinsclough school who advised their LA has prevented them using flexi schooling for children with statements. Please can you advise if Flexi Schooling is not an option for children with Statements as I was very much hoping to explore this option.

IPSEA Answers:

The term “flexi schooling” can cover many different approaches – e.g. a mix of special school/mainstream school; school/elective home education; ABA programme/school. You first need to be clear what you mean by it. Once you are then you need evidence that this approach to educating your child is effective given his special educational needs and the special educational provision identified through the assessment process and specified in his statement or EHC plan. If you then request that this particular approach to education is adopted for your child the LA must then consider it and if they say no give a reasoned explanation based on his individual situation.

No LA can have a blanket policy that any particular approach to education is “not an option”. For your child it may well be the best option. Remember that for those children and young people with an EHC plan that the LA has a duty to support them to achieve the best possible educational and other outcomes under s. 19(d). If your child has a statement they will be transferred onto an EHC plan at some point before April 2018.

Parent Question:

My daughter who was 16 years old on 24th of August, attempted to enroll on a Level 3 Diploma in an Arts and Design course at college in September having left her Special School in July 2014. She was diagnosed with ASD/Asperger's in 2008 when she was 10 years old, and had a Statement of Special Educational needs until she left school. She now has a Learning Difficulty Assessment.

Although she met the “Specific Entry Requirements” according to the prospectus, she was still not allowed to enroll because she only achieved a D at English GCSE. This however is not a Specific Entry Requirement. It was heavily inferred by tutors that the Head of School has discretion over entry.

When I read the Ofsted report for the college, there was criticism of the “Outcomes” ie: results. A friend of mine's son (also with ASD), was told at his college that they were taking a risk by allowing him onto a course because it might “affect their results”

My daughter, instead of being enrolled on her course of choice, has been offered a Level 2 course (no qualifications needed to access this) for one year to “See if she can work at this level”..... I suspect that she too has been discriminated against in case she too is responsible for “affecting results”. I am led to believe that this is not the only case at this college of students with special educational needs and would welcome your advice. I have met with the principal and the Head of school but to no avail, and would consider legal action. Do you consider the college's actions as discriminatory?

IPSEA Answers:

It is highly likely that the college’s approach is discriminatory under the Equality Act 2010. To bring a claim of disability discrimination may well be the only way to reveal to the college the error of their thinking and practice and to get your daughter on the course that she wants to attend as soon as possible. This needs further investigation and careful advice. (The SEND Tribunal does not hear claims of disability discrimination against FE Colleges – a claim would need to be brought in the county court.) 

I strongly suggest that at the same time you or your daughter – she should do this herself if she has mental capacity to do so or you can act on her behalf if she does not – request that your LA carries out an EHC needs assessment of your daughter’s education, health and social care needs which could then result in an EHC plan for her. Like a statement of SEN – but unlike an LDA – this gives her a right to the special educational provision specified in it. If she is correctly assessed it should mean the right support will be put in place to ensure her needs are being supported and that she can access the course she wants – maybe even get the results that the College seem so keen to ensure their students achieve! Further information and a model letter you can use to make this request can be found on the IPSEA website.

I have SEN Child. She is studying in special school. We want to move her from special school to mainstream school. Can I do that? If I can, what I have to do?

IPSEA says:

You have not told us if your daughter has an EHC Plan or a statement. We are assuming she has an EHC plan. If this is not the case you will need to contact IPSEA again as the advice will be slightly different.

Assuming then that your daughter has an EHC Plan which names a particular school in Section I and you want to change this, you will firstly need to get the Local Authority to change the EHC Plan. Annual review is often a good time to seek changes to a statement or EHC Plan and we have some information about this on our website here:

https://www.ipsea.org.uk/what-you-need-to-know/changing-an-ehc-plan

If an annual review isn’t imminent, it is open to you to ask for an early annual review to be held and we have a model letter of request which you can adapt for this purpose: https://www.ipsea.org.uk/what-you-need-to-know/model-letters/model-letter-5

Alternatively, if your daughter’s SEN have changed considerably and it’s been more than 6 months since the last EHC needs assessment, then you might want to ask for a re-assessment of her education, health and care needs. Again, we have a model letter for this purpose:

https://www.ipsea.org.uk/what-you-need-to-know/model-letters/model-letter-2

If the Local Authority refuses to change an EHC Plan following a review, or refuses to carry out a re-assessment, then this will trigger a right of appeal. You would be able to seek further advice about how to exercise this right of appeal (including how best to secure a change of school / college via an appeal) from our Tribunal Help Line. You can book a call-back with one of our THL volunteers here:

https://www.ipsea.org.uk/contact/advice-and-support/tribunal-helpline

If the Local Authority agrees to change the EHC Plan following a review or a re-assessment, then you will have the opportunity to request that a particular school is named in the Plan.

According to section 33(2) of the Children & Families Act 2014, the LA must secure that a plan provides for the child or young person to be educated in a maintained nursery school, mainstream school or mainstream post-16 institution, unless that is incompatible with—

(a) the wishes of the child’s parent or the young person, or

(b) the provision of efficient education for others.

Section 33(4) confirms that this second exception can only be relied upon by the LA if it can show that no reasonable steps can be taken by the school or college to remove that incompatibility. The burden of proof will be on the LA to establish that one of these conditions applies. The SEND Code 2015 contains a discussion of what may constitute “reasonable steps” in paragraph 9.91. There are also detailed examples in paragraph 9.92 of the SEND Code 2015 for three different types of situation:

• inclusion of a child with challenging behaviour in a mainstream primary setting;
• inclusion of a child with autistic spectrum disorder in a mainstream secondary school;
• inclusion of a young person with a learning disability who does not use verbal communication in a mainstream course at a further education college.

These are just examples and the list is by no means exhaustive but it gives a flavour of the type of steps which can be taken to ensure inclusion in a way which would not be incompatible with the efficient education of others. Paragraph 9.93 of the SEND Code 2015 suggests the threshold when determining it is not possible to remedy the incompatibility by taking reasonable steps is a high one. The example given by the SEND Code 2015 is that the child or young person’s behaviour systematically, persistently or significantly threatens the safety and/or impedes the learning of others.

You can find the SEN and Disability Code of Practice 0-25 here:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/398815/SEND_Code_of_Practice_January_2015.pdf

As you can see, the LA cannot deny a child or young person mainstream education on the grounds that it is not suitable for them or that it is too expensive for them to attend a mainstream school/institution.

You would probably find it helpful to speak to one of our trained advisers to discuss this in more detail. Follow this link to find out how to do this: https://www.ipsea.org.uk/contact/advice-and-support/advice-line

Parent Asks:

My son is 14 and has complex special needs, including ASD, ADHD, Global delayed development, SCLN and extreme anxiety. He attends a local authority-maintained special school for pupils who are either deaf or have severe hearing difficulties. My son was admitted into year seven as the school started allowing children with SCLN to attend.

At the time he joined, he hadn’t been given the diagnosis of ASD. We had experienced difficulty in getting support from his previous school in requesting a referral to CAHMS as they deemed that a clear diagnosis would be difficult as his other needs would mask some of the results of the ASD assessment.

Once he had started secondary school, a referral was swiftly made by the school to CAHMS, with the school giving full support. They recognised that he displayed severe ASD tendencies and questioned how his previous school were unable to see it. He obtained a severe ASD diagnosis very quickly in April 2021.

At the beginning of year 9, it became apparent that his current school was no longer the right provision for him as they no longer could meet his needs and manage his behaviours as they were not a specialised ASD school. As most of the other students have hearing difficulties and communicated with BSL and Makaton, he was becoming extremely alienated from his peers, as communicating with them was extremely difficult.

After a number of school TAC meetings that were attended by several professionals, including the local authority EHCP coordinator, it was agreed that an alternative provision was urgently needed. The TAC was held towards the end of 2021 with the hope that the new provision could be found and he could start by Easter 2022.

The LA then requested that we do extensive research and compile a list of schools we would like to be considered for consultation. This was far from an easy task as it comprised of us looking through the section 41 included list and excluded list of schools, trying to ascertain which would be most suitable. I would have thought it was the duty of the local authority to research and provide a shortlist of which schools might be appropriate, but we were given no assistance.

Unfortunately, most of the schools that we were able to find were either not the right type of provision, too far away or were unable to undertake a consultation as they were full.

Through intensive research and speaking to parents of children that attend, one such provision, an independent special school that has many students with a similar need to our son, was added to our list. They are also located quite close to where we live so transportation would be quite easy. Even though they seemed to be an ideal contender, they were unable to liaise with the LA during the consultation stage as they were at maximum capacity and in high demand. They are not a section 41-approved school, unfortunately.

As no appropriate school had been found by Easter 2022, the LA’s EHCP coordinator contacted us to advise that a new independent ASD specialised school was opening soon and that it might be worth contacting them to see if they were able to enter the consultation.

This new school was part of a larger group of special schools. The school was given a copy of his EHCP and contacted his current school. It was then followed by a home visit to assess him at home to meet him.

Everything looked extremely promising as they agreed they were exactly the type of special school he required and they could meet his needs. It was almost like a eureka moment that came with huge relief. We thought our problems had been solved until they went to the panel at the LA. The panel deemed that this school was not appropriate as there was a locally maintained special school that could meet his needs.

We had already expressed during his transition from primary school to Secondary school that this particular school was unacceptable due to various factors. The LA at the time had chosen this school, and we had to start a tier 1 appeal and start tribunal proceedings in order for his current provision. The LA backed down a week before the tribunal and awarded our school choice. We also needed to fight for transport, but this was also awarded in the end.It is hard to believe that we are in the same situation with the same school, with the LA naming this school against our wishes. The school in question visited our son’s current school so that they could make an assessment of their ability to meet his needs. They then corresponded to the LA/panel in writing with their findings.

We fully understand that the cost of the provision, including transport, is extremely high and that the LA have the duty to protect the public purse, but it was the LA that recommended that we contact this school in the first place. This provision wasn’t on the list that we submitted to the LA as it is between a 45-minute and an hour taxi ride from home, so we considered the cost of transport the LA would need to cover. Even if the LA can meet the cost of the school fees, we are not in a financial position to meet the transportation costs, and the LA are aware of this but has taken no notice.

We both work full time and have two other children, including another with needs and an EHCP, so we are unable to take our son to and from Leatherhead each day or afford transport with or without an escort. We have exhausted all our avenues and don’t know what to do.

What responsibilities do the LA have?If the LA has the power to overrule a School's decision, could they force an independent, non-section 41 school to accept a pupil even if they are full or at least make an assessment?

IPSEA Answers:

The duty to name a school within an EHCP lies with the LA. Although the LA must consult with a school before making a decision, the final decision lies with the LA and the school can be overruled if the LA does not agree with the school’s views.

As a parent, you have a right to request specific types of schools are named in your child’s EHCP. These are set out in section 38(3) of the Children and Families Act 2014 (“CAFA”) as follows:

(a) a maintained school;

(b) a maintained nursery school;

(c) an Academy;

(d) an institution within the further education sector in England;

(e) a non-maintained special school;

(f) an institution approved by the Secretary of State under section 41 (independent special schools and special post-16 institutions: approval).

If you request one of these types of placements is named in the EHCP, then the LA can only refuse if one of the following reasons applies as set out in s39(4) CAFA:

(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.

Before making a decision, the LA must consult with the placement. However, the LA makes the final decision to name a placement and, if a placement is named in an EHCP, then it must admit the child (s43 CAFA).

However, this does not apply to wholly independent schools (only independent schools approved under s41 – find an explanation of different types of schools here). Wholly independent schools must agree to be named in an EHCP; the LA can not overrule the school in this case. To have a wholly independent school named in an EHCP, in addition to the school agreeing to be named, you would also need to evidence that either the school is the only school which can meet needs or the placement there would not be incompatible with the efficient use of resources (I.e. the placement would not cost significantly more than other suitable options).

The next route now to change the school placement would be to appeal the contents of the EHCP to the SEND Tribunal if you still have a right of appeal (2 months from the date of the final EHCP or 1 month from mediation certificate – whichever is later). IPSEA would always recommend appealing sections B (SEN) and F (special educational provision) in addition to section I, as B and F should lead to an appropriate school placement and it is imperative that these are specific and quantified. Before submitting your appeal, you must consider mediation and obtain a mediation certificate, but it is your decision whether to partake in mediation or not. However, in your case, it may be worthwhile to mediate as it would give you an opportunity to discuss with the LA the reasons why the named school was deemed inappropriate last time and ask for reasons why it has been considered suitable this time.

Parent Question:

My son has spent five years in a special school BESD (Behavioural, Emotional & Social Disorder) primary. He has just started a mainstream secondary school. There have been a lot of incidents. According to the school he is fine which I don’t think is true. His behaviour at home is terrible as he saves it up some days. They say he is educationally bright.

I would like him to go to a BSE school again. The only one suitable is in special measures at the moment. How can I get them to agree this school? If not what are his other options regarding school? Dual placement or out of county? Will he get into a special school again? They are saving money by sending him mainstream.

IPSEA Answers

If you are not happy with his current school placement then you need to first find out exactly what is or is not happening for him. You need a meeting with the school to discuss this. Ask the school for confirmation in writing of what SEN Support he is receiving in school.

Some schools are still calling their records of what support is being provided IEPs (Individual Education Plans) but your son’s school may now be calling it something else, such as an SEN support plan or a pathway plan. Either way there must be a written record to tell you exactly what support they are putting into place for him, when, how and what individual targets they have set for him and his progress to date. Raise your concerns and then confirm in writing to the school. If he only joined them in September this year it is still early days and a settling in period for both him and them but that does not mean they should not be working to support him.

Once you have this information, if you still want him to change school, you need to identify where you want him to go and ideally why. You can look at any school you want and you are not restricted to schools within a LA’s geographical area. Once that is clear you can start working towards him making the move. I strongly suggest you get individual advice on the process of how to do this before you start. The approach you take will depend on the type of school you want.

If your son still has a statement (this is not clear from your question) then you need to involve the LA in this as they are responsible for ensuring that the special educational provision in a statement is delivered. If you are not happy with the school named in the statement then the statement will need to be reviewed.

Parent Asks:

A student is having a very successful placement at an Alternative Provision (AP) and we wish to increase this time as it is having such a positive impact at a very difficult time for this student. We have been told by the LA it is a legal requirement that time in an AP should not exceed time in school per week. We appreciate that the long-term plan is to increase time in school but at present feel more time in the AP is beneficial. Is it correct about it being a legal requirement?

IPSEA Answers

There is no specific requirement for alternative provision to be attended for fewer hours than the school setting in this situation. Local authorities (LAs) have a duty under section 19 of the Education Act 1996 to provide suitable, full-time alternative education for those children of compulsory school age who, by reason of illness, exclusion or otherwise, may not for any period receive suitable education unless such arrangements are made for them. In this situation, if the child is unlikely to receive full-time, suitable education within the school setting, then the LA must arrange an alternative. In some cases, the alternative provision will be a full-time requirement; in others, it will only be part-time or a dual placement with another setting. Alternative education should only be part-time if there are reasons which relate to the physical or mental health of the child meaning it would not be in the child's best interests for full-time education to be provided for the child.

It is often helpful to have the agreement specified in section F of the EHC plan to ensure it is legally enforceable, and a transition plan back into school can also be written into this where appropriate. Section F can, and should, specify the number of hours to be attended at each setting and the special educational provision that will be provided at each one.

A parent can request an early review of the EHC plan to ensure this is done, and IPSEA has a model letter they can use to do this: https://www.ipsea.org.uk/asking-for-an-early-review-of-an-ehc-plan They should send this request to the Director of Children’s Services at the LA; their contact details can be found here: https://adcs.org.uk/contacts/directors-of-childrens-services

If following a review, there are still concerns over the agreement with the AP, the parent can appeal the contents of the EHC plan to the SEND Tribunal to ensure that the special educational provision and placements are adequately specified within the plan, along with a transition plan if needed. There is more information about the appeals process here: https://www.ipsea.org.uk/appeals-about-the-contents-of-an-ehc-plan

If the AP has been arranged by the school, however, under its power to direct a pupil off-site to improve behaviour (section 29A Education Act 2002), then this can only be done where the pupil’s behaviour means that they are at risk of permanent exclusion. It should not be used because the school is unable to meet the child’s SEN or medical needs. The arrangement should be reviewed every 30 days as per Reg 4 of The Education (Education Provision for Improving Behaviour) Regulations 2010, and six days before each review the following people should be asked for their views regarding whether the arrangement should continue, as per Reg 5:

“(a) the relevant person;

(b) the provider;

(c) the headteacher of the school;

(d) a representative of the governing body; and

(e) where the pupil has a statement of special educational needs, a representative of the local authority maintaining the statement.”

If there is evidence that the time in the AP needs to continue and/or be increased, then this should be discussed at the reviews. There is nothing stated within the Education Act 2002 or the associated Regulations to state a maximum time that a pupil can spend within an AP. However, if it appears that the school placement isn’t suitable and the pupil is unlikely to be able to return, then we would again suggest asking for an early review of the EHC plan to consider the long-term placement options

Parent Question:

My authority has refused to send my son to an autism-specific school that can also manage his other special needs. They say he has to go to local special needs school that I am not happy with and fail there before they will pay for him to go to my preferred school. He has already been to a secondary school with an autism unit and I took him out after 5 months (in another area). We had the initial EHC meeting with 11 professionals there and all except the SEN Manager agreed with me.

Also everyone at the meeting agreed that my son should have a personal budget for him to experience independence from me (and to give me a break). First draft approved but then was recalled and someone in council changed it and resent, detailing I would provide everything he needed. I have refused to sign off and there is no submission from health yet. I have home-educated him for over 2 years. They wanted me to sign him up to an online learning system so they could get him on a school's register and claim his allowance but when trialled he could not manage it. I would love him to experience the autism school which would give him a personalised education to his full potential and feel that just because we have moved into this area when he was 12 ( he is now 14 ) that they are happy to refuse till it will be too late and he will end up on the scrapheap and fighting for benefits to survive on for the rest of his life instead of being an asset to society. Why should they be allowed to do this to my clever but challenged son?

IPSEA Answers

Under both the old SEN system which resulted in a statement of SEN and under the new EHC system, which can lead to an EHC (Education Health and Care) plan, once an LA has assessed a child’s needs then identified the special educational provision needed to be put in place to meet those needs they must then consider at which school or college this provision should be made. Only at this point they should ask parents or the young person to make any request they have for a particular school.

In your case if you requested a non-maintained special school the LA must name it unless they can prove one of the reasons not to listed in the Children & Families Act 2014 section 39(4): the school is unsuitable; the attendance of the child or young person will result in the inefficient education of others or the inefficient use of resources, i.e. it will cost much more. These are the only reasons they can use to say no. It should not be the decision of one person: if all the other professionals are saying that your choice is the most suitable school, then if the LA fail to name it in a final EHC plan the decision is appealable to the SEND Tribunal. You would already have a weight of evidence to back your claim. Get your LA to finalize the EHC plan (if they have already carried out an EHC needs assessment) and if they do not agree with your requested school then they should say very clearly which of these three grounds they are relying upon. Once it is clear you can prepare any case you may have to bring to the SEND Tribunal. If you are still living with a statement rather than a plan, you can appeal after an annual review.

As part of the process of drafting an EHC plan – or once you have an EHC plan when it is reviewed - you can ask your LA to identify a personal budget for your son. This is a notional amount of money (i.e. not an actual amount of money) which is identified as being needed to be spent to make the provision specified in the EHC plan. This can be education, health or social care provision. An LA must do this except in very limited circumstances. Again, if they say no to such a request they must clearly tell you why.

In addition you can request that a part of that notional personal budget is taken as a direct payment. This is an actual amount of money that you would receive to buy –“commission”– any provision specified in the education part of the EHC plan. Again if an LA refuses this request then they must say clearly why they have said no.

In both cases – requesting a personal budget and direct payments – you can ask the LA to review any decision to say no. Ultimately you can challenge such a decision via judicial review. Only when you ask formally will you get a formal decision. Neither personal budgets or direct payments are available until you have or it is agreed a child or young person will have an EHC plan.

The request that your son signs up to an online course needs further investigation. What is important here is to distinguish between where he is “electively” home educated (i.e. you have chosen to educate him out of school) or where he is “educated otherwise” than in school by the decision of the LA. Which it is will affect the advice you will be given and this matter needs careful individual consideration.

Parent Question:

Once you've had a post-16 transition review from Statement to EHC Plan and a school is named and young person starts on that new school, if the family move to another borough would the new borough have to accept the school named or they have the right to re-assess and offer another school?

IPSEA Answers:

Unfortunately if you move LA then the “new” responsible LA does not have to accept a school/college previously agreed by a different LA. They can do so if they chose- if they agree it is still the nearest suitable school/ college placement. But they also have the option of carrying out a reassessment of the young person’s needs and naming a different school/college.

Parent Asks:

The Local Authority keep saying that they have consulted with over 50 provisions and that they have all come back and said they could not meet need. The pupil currently attends a PRU, and the Local Authority will not assign the money to the PRU for the pupil as the PRU cannot be named on the EHCP, and the PRU is funded through the same High Needs Budget as EHCPs. Therefore, the pupil is not receiving anything outlined on their EHCP. The LA have advised that the parents cannot do anything since the plan is not at the "final stage" and, therefore, cannot take the LA to the tribunal. Currently, approximately seven pupils within the PRU are in the same position.

IPSEA Answers:

There are specific deadlines set out in law by which an EHC plan must be finalised. The relevant deadline depends on whether this is the first EHC plan or has been amended following an annual review (“AR”).

If this is the first EHC plan, then the plan must be finalised within 20 weeks of the initial request for the EHC needs assessment. If a school placement has not been found or agreed upon, then the LA should finalise the plan naming only a type of school to be attended and then continue to look for a specific placement. The plan should not remain in a draft form long-term because the special educational provision set out in the plan will still need to be provided regardless of whether a placement is named.

If the plan has been amended following an AR, then the plan should have been finalised within 12 weeks of the AR meeting. The deadline for the LA to decide what action to take following the review meeting (i.e. whether to amend the plan, maintain it in its current form or cease to maintain the plan) is four weeks from the meeting date. If the LA chooses to amend the plan, then the proposed amendments must be provided at this time as well, giving you at least 15 days to respond and name your choice of placement. The LA then considers your views, consults with the placement and makes a decision, finalising the plan within eight weeks of the proposed amendments. Again, if at this point the LA has not found a suitable placement, then a type of placement should be named so that the plan can be finalised and the provision within in secured. You can find more information about the AR process here: https://www.ipsea.org.uk/the-annual-review-process.

As the plan is currently still in draft form, you should make a complaint to the LA about the missed deadline, reminding them of the process and requesting that the plan is finalised, naming a type of placement if a specific one has not been identified. The LA is frustrating your right of appeal in addition to your child not receiving the special educational provision that is required.

With regards to naming a placement in section I of the plan, as a parent, you have a right to request specific types of schools are named in your child’s EHCP. These are set out in section 38(3) of the Children and Families Act 2014 (“CAFA”) as follows

(a) a maintained school;

(b) a maintained nursery school;

(c) an Academy;

(d) an institution within the further education sector in England;

(e) a non-maintained special school;

(f) an institution approved by the Secretary of State under section 41 (independent special schools and special post-16 institutions: approval).

If you request one of these types of placements is named in the EHCP, then the LA can only refuse if one of the following reasons applies as set out in s39(4) CAFA:

(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.

Before making a decision, the LA must consult with the placement. However, the LA makes the final decision to name a placement, and, if a placement is named in an EHCP, then it must admit the child (s43 CAFA). Your right to request the PRU will depend on the legal status of the setting.

Parent Question:

Can you please explain what is meant by 'efficient use of resources' as in Section 39, 227 ?

We are asking for a post 16 special school college which is just over our local authority border,(a local authority school). There is nothing else in our area that offers the curriculum my child wants to follow for her aspirations. Everyone agrees appropriate but not sure it will be funded.

IPSEA Answers:

Aghhh! The age old question which was relevant under the old law and still under the new. It’s all about the money! Would it cost an LA more to place a young person in the parent/young person’s choice of school or college rather than one that the LA considers as suitable but which is cheaper.

The law does not recognise LA geographical boundaries so you are not limited by that (which unfortunately many LA’s fail to make clear to parents). What is important is to look at the total cost of the placement to the LA including all cost including education, health and social care plus anything else which is an expense to the “public purse” but will be provided by the child or young person being in a particular school/college. Here is a very simple example. It is agreed that a child needs 1 hour direct speech and language therapy per week.

The LA wants the child to attend a mainstream school which does not have a speech and language therapist on staff. The cost of the LA placement is £15,000 p.a. plus the cost of the speech and language therapy which is £2,280 p.a. (38 hours @ £60 per hour). Parents want an independent special school. The fee for that school is £18,000 p.a. When you compare the total cost of the two placements you can see that the parent’s choice would be cheaper so there is no inefficient use of resources. If the LA had however failed to include the additional SALT cost in the calculation you can see it could fall the other way.

It is vital to be clear what the two placements can provide and at what cost. Where a statement or EHC plan is not specified properly it is very difficult to work this out. Where it is not clear what a school/college can provide from within its existing resources – funding and professional expertise – it is also very difficult. That is why it is so important that an LA Local Offer document sets out what it expects its schools to provide from existing funds (as opposed to what is actually does). Unfortunately it is hard to find one at the moment that actually does that.

Parent Asks:

Our son is in a specialist nursery. Therefore, Section I states 'specialist' for the setting type. We were informed that for phase transfer primary school for September, they would approach multiple mainstream schools and only one specialist setting (our preferred choice).

The LA approach any setting without any given thought firstly, should these not be settings they envisage him at and carefully selected before sending it out to anyone for the setting to make their own decision?

Our son is in a specialist nursery. Therefore, Section I states 'specialist' for the setting type. We were informed that for phase transfer primary school for September, they would approach multiple mainstream schools and only one specialist setting (our preferred choice).

The LA approach any setting without any given thought firstly, should these not be settings they envisage him at and carefully select before sending it out to anyone for the setting to make their own decision?

IPSEA Answers:

As a parent, you have a right to request specific types of schools are named in your child’s EHCP. These are set out in section 38(3) of the Children and Families Act 2014 (“CAFA”) as follows:

(a) a maintained school;

(b) a maintained nursery school;

(c) an Academy;

(d) an institution within the further education sector in England;

(e) a non-maintained special school;

(f) an institution approved by the Secretary of State under section 41 (independent special schools and special post-16 institutions: approval).

If you request one of these types of placements is named in the EHCP, then the LA can only refuse if one of the following reasons applies as set out in s39(4) CAFA:

(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.

Before making a decision, the LA must consult with your choice of placement. The LA can also choose to consult with other placements it deems may be appropriate (s39(2)(b) CAFA). The starting point when naming a placement must always be the parent’s choice though.

Section I names the placement and the type of that placement to be attended, so the type currently in your child’s plan is the type of placement they are currently attending. This can potentially change any time an EHC plan is reviewed and/or amended. A plan which names a special placement now could be changed to name a mainstream at the next review; it should not be assumed that the placement type will always remain the same throughout a child’s education. The decision should always be based on the available evidence and the parent’s preference.

With regards to transport, unfortunately, children under compulsory school age have no automatic right to transport. Compulsory school age starts on the first day of the term following a child’s fifth birthday. However, s509A of the Education Act 1996 does give LAs the discretion to provide transport for this age group when necessary so we would suggest that you challenge this decision. You can find information about how to do this here:  https://www.ipsea.org.uk/appealing-decisions-about-transport.

Parent Question:

My local authority case officer has pretty much told me that until I have an EHCP, that the new Children and Families Act doesn't apply to us. My son's papers are being submitted to the panel for secondary placement consideration and I've been told I cannot make a choice for a school on the SOS approved list until we have been transferred to an EHCP. Are either of these correct please?

IPSEA Answers

The point in time when part 3 of the Children and Families Act 2014 starts to apply to your son depends on where you are in the process. If he has a statement and is not yet being transitioned into the new system (i.e. if on secondary transfer he is going to get an amended statement and not an EHC plan) then it is still the Education Act 1996 which applies to your son.

If however he is being transitioned now then:

• The new law will apply to the conduct of the EHC needs assessment which is an essential part of the process of transition;
• When a draft EHC plan is sent to you the C & F Act 2014 will apply, i.e. you will have rights under the C & F Act 2014 to make representations about the plan, request a meeting with the LA and request a type of school/college(mainstream or special for example) and the actual school/college you would like named in section I. (When you get to that point you are not confined to making a choice from the SOS approved list – you can request any school/college you think suitable is named in the EHC plan. What law applies when then deciding whether they will name it will depend on the type of placement you are requesting. At this point please read the resources on the IPSEA website and call us for individual advice.
• Then when the EHC plan is finalised the statement will be replaced by the EHC plan and it is the new law which will apply.
• Back to all ASK IPSEA Answers

Whose responsibility is it to source the next educational setting if the young person is moving on? Is it the LA's, parents' or school's?

Marguerite says:

Law:

The Children's and Families Act: Section 38: the right to request a particular school or other institution is  named in an EHC Plan. Section 39 the duty on the LA to name the school/institution requested by
the parent or young person.

Regulations:

The Special Educational Needs and Disability Regulations 2014 (“the SEN Regs”)

SEN Reg 13 (b)- the LA duty to advise about where parents and young people can find information about the schools and colleges that are available for the child or young person to attend.

Guidance:

The SEN and Disability Code of Practice 2015:

Chapter 9: Paragraphs 9.77 to 9.87 deal with the draft plan and requesting a school/institution

An EHC Plan must name the type of school or other institution and in the majority of cases the EHC Plan will name the particular school or other institution which the child or young person will attend as well. The section of an EHC Plan which contains this information is Section I.

If a school or institution is named in Section I of an EHC Plan then the governing body, proprietor or principal of most types of school or other institution must admit the child or young person for whom the plan is maintained (section 43(2)).

The LA must allow the parent or young person to make a free choice when considering what type and name of school or institution to request.

The LA has a duty when issuing a draft plan to advise parents and young people about where they can find information about the schools and colleges that are available for the child or young person to attend (SEN Reg 13).

Often the LA may have a school or institution in mind before they draft an EHC plan but the starting point is the school or FE institution which the parent or the young person wants.

If the parent or young person wants a school or other institution which is listed in Section 38 (3) then the parent or young person will be able to make a request for it under the Act.

Section 38 (3):

A school or other institution is within this subsection if it is:

1. a maintained school
2. a maintained nursery school;
3. an Academy;
4. an institution within the further education sector in England;
5. a non-maintained special school;
6. an institution approved by the Secretary of State under section 41

You may also find further information here:

https://www.ipsea.org.uk/what-you-need-to-know/ehc-plans/choice-of-school-or-college

Educational Professional Asks:

One of our current students suffers from Ehlers Danlos syndrome. She has studied two A levels through home tuition. In August 2017 she will be 19 and is supported by an EHCP. In September 2017, she wants to start a two year A level programme to study Biology and Chemistry at a local FE college. To attend the college she will need her fees to be paid and also 9-10 hours support from a support assistant to help her with mobility and welfare needs in and around the building. Is she entitled to financial support for this from the local authority?

IPSEA Answers:

The LA is required to continue the young person’s (YP) EHC plan until she is 25 whilst she is in education or training – which taking A levels at an FE college clearly is.  So it is perfectly possible that this YP’s place can be funded by the LA.  In practical terms, the LA needs to be approached to discuss the wishes of the YP.  She can ask the Authority to amend her EHC plan to facilitate her attendance at college including all the support outlined in the question. We would then suggest seeking an amendment of the plan as part of the annual review process.  If the LA refuse to amend the plan to enable the YP to attend college she would have a right of appeal to a SEND tribunal.   Again, in practical terms, it would be worth checking that the college has a place and would be able to meet her needs, including any physical needs she might have.  On the latter point, the college is required under the Equalities Act to make reasonable adjustments to prevent a disabled YP from being placed at a substantial disadvantage.  It is likely to be reasonable to expect the college to manage or make adjustments to ensure the mobility needs of the YP are adequately addressed.

Parent asks:

My adult son has an EHC plan. It states his College and last year he studied a course with additional functional skills maths and English. This year the College is trying to outsource these sessions to a different centre in a different place already discounted as part of a Tribunal last year. Can they force him to go as it is not named in his EHC plan?

He only had 1 hour of each subject given, so he was not going to progress.Now, he is being provided with 6 hours was this discrimination by the College?

He is completing a pre-uni course in Art but can't progress.What should we do as we do not want him to attend the centre? Can the College do this they seem to be running his EHC plan and not the authority?

IPSEA Answers:

If the EHC plan specifies the college in Section I then this is the place your son should be attending and the college can’t direct him off to another centre for certain courses or lessons.  It’s not within its power to do so.

It’s unclear from the information we’ve got whether the provision of 1 hour per subject was in some way discriminatory.  It was clearly inadequate but this seems to have been resolved by an increase in the amount of tuition being given.  If the EHC plan states how many hours of tuition your son should receive and the college was or is not delivering this, then your complaint is, ultimately, with the local authority (LA).  Under s.42 Children and Families Act 2014, it is the LA (and not the college) which is responsible in law for securing that the plan specifies the special educational provision your son needs and that this is delivered.

If this isn’t happening then a complaint can be made and IPSEA has a model letter which

can be used: https://www.ipsea.org.uk/what-you-need-to-know/model-letters/model-letter-6

Obviously, you can complain to the college first and point out that only the LA can change the provision in the plan and then only by following the statutory process in the SEN and Disability Regulations 2014.  But if college won’t do what the plan says then the sooner the LA are aware of the problems the better.

If the plan is not providing adequate support to enable your son to progress, then this is an issue he can raise (with your support) at the annual review.  It may be that changes need to be made to the plan if the provision isn’t adequately specified or sufficient.

I have received my 19 year old son's final EHCP and although I requested a Performing Arts specialist college, they have named a local mainstream college with a specialist provision which they say he could access. My son has Down's syndrome and is an excellent dancer - he has even won a competition and appeared on TV.

I have contacted the mediation service detailed on the letter and they have said I should go straight to Tribunal - please advise.

IPSEA Answers

Firstly, it is important to note that because your son is nineteen he is regarded under special educational needs legislation as a young person. This is the case for those who are over compulsory school age – i.e. those who have finished the school year in which they turn 16 years old.

At that point the Children and Families Act 2014 gives these young people their own rights to make decisions about their education under that Act. and they must be included in all decisions and correspondence in their own right unless they lack mental capacity to make a particular decision.  Mental capacity will be assumed unless it can be shown that the young person does not have the capacity to make the decision in question.

If a young person does  lack mental capacity to make a decision on their own, then an 'alternative person' can make that decision for them.  Under the Children and Families Act the young person’s parents will automatically be assumed to be that 'alternative person unless the Court of Protection has appointed a Deputy.

Where a young person has mental capacity to make decisions, their parent can still be involved in helping them to make them, and the local authority should continue to involve them in any discussions they have with the young person if that's what the young person wants.

To bring an appeal against the EHC plan to the SEND Tribunal here, the appropriate young person appeal form must be used Here is a link to the form:

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=4725

There is the option of the young person signing the form themselves or the parent signing it for them as their alternative person where the young person lacks mental capacity.

Where a parent or young person wants a place at an independent specialist college they cannot make a request in the same way that they can for maintained schools and colleges. What they can do is make their views and wishes known by ‘making representations’ for that placement, and the LA must consider their wishes.

Unfortunately, it is not unusual for LAs to refuse to name independent schools or colleges and they usually rely on the fact that it will represent unreasonable public expenditure.

Case law suggests that if the cost differential of placements at a maintained school or college and an independent one is less than about £11,5000 per year, that would not necessarily be regarded as ‘unreasonable public expenditure’.

It is not always possible to show that the cost difference between an independent school or college and a maintained one is not significant but that doesn’t necessarily mean that an appeal will be unsuccessful. Costs are only relevant if both schools or colleges are suitable. If there is something about the provision the child/young person requires which cannot be provided by the LA named setting, then the Tribunal may well accept that the independent placement should be named as it is the only one which can meet all the child/young person’s needs.

The Tribunal hearing is an evidence-based process, so it will clearly be helpful if you have supporting evidence from professional sources that support the need for provision that is available at the preferred college, but might not be available at the LA’s maintained provision.

The EHC plan itself is also a key part of the evidence, so it becomes particularly important that the Section B of the EHC plan should set out all of your son’s SEN and that Section F specifies (and quantifies) all of the special educational provision that is necessary.

So if there are particular features of provision available at your preferred college, you would need to ensure that your son’s need for this provision, and the provision itself, are set out within the EHC plan, if necessary by suggesting and asking for the inclusion of specific wording.

It is not necessary to consider mediation before appealing if the appeal is only against section I – the name of the school or college. If you told the mediator that you want to appeal against the named college and didn’t make reference to sections B and F this may be why you were advised to go straight to appeal. However, as I have explained above, it will be important to appeal against sections B and F of the plan and that means that it will be necessary to obtain a mediation certificate first.

Parent Question:

In terms of young people (YP), as defined in the Children & Families Act and the Code of Practice, can you confirm that between the ages of 16 and 18 if the YP wishes their parent of parents to be consulted either with them or for them (for example if they have acute anxiety and can't deal with people on their own on a one to one basis or haven't built up a trusted relationship with an Independent Supporter as their input is time limited) and can convey this to a Local Authority (LA), can the LA choose to ignore this wish or have they a duty to honour the YP's wishes?

In addition, how can parents best support their young adults (18 to 25) if their wishes to be helped by their parents remain the same?  Will parents need to apply for a power of attorney or, in more severe cases, to the Court of Protection?

IPSEA Answers:

A local authority must deal with parents if a young person (someone over compulsory school age - the end of the academic year in which they turn 16 years old) who has capacity to, authorises that they act on their behalf. The LA have no choice. They cannot ignore the young person’s wishes.

If the young person does not have capacity to make that authorization then, unless a local authority is corporate parent or the young person has a separate representative, parents are automatically the people making decision on behalf of their young person. Again, unless the LA has gone to the Court of Protection and obtained an order in exceptional circumstances, then they must deal with parents. There is no choice and the SEND Code of Practice 2014 makes this very clear in Annex 1. Up to the age of 18 years old a parent retains parental responsibility for any child whether or not they have SEN or a disability.

Over 18 years old, where a young person does not have the mental capacity to make decisions for themselves, parents are again automatically the people that LAs must work with unless there are exceptional reasons not to do so, or if the young person already has an alternative representative.

From the age of 16 years old a parent can apply to the Court of Protection to become a deputy for their child in relation to financial matters if there is good reason to do so, such as to handle a large sum of monies on the young person’s behalf.

Whilst deputyship applications can be made for health and welfare matters for young people over 16, these are usually only issued where there is a “live” issue or dispute with another party which needs some form of resolution.

(many thanks to Angela Jackman @ MG Law for checking my answer to this one!)

Parent Question:

I wondered where I stand if I want to record meetings with school/LA. To date I've not had an honest account at any meeting although I do take someone to make notes.

I have been continually told that there is a difference between in the notes taken and nothing has been done! I'm positive the school will not agree to being recorded as they seem to have too much to hide but so far it has been the word of the school is considered more reliable than that of the parent; this incorrect information is being used in official reports and I am being ignored.

IPSEA Answers:

You should not record meetings with a school or the LA covertly. I suggest that first you raise your concerns with them in writing giving specific examples where things have been recorded inaccurately. Then notify them that as a result of your experiences that you will be openly recording all meetings from now on but that you will consider any alternative strategy they may like to suggest to address the issues you have raised.

Your trust in the school/LA has obviously been seriously eroded by your past experiences. They need to work on earning that trust back. Under the Children and Families Act 2014 s.19 the LA have a duty to take into account your views, wishes and feelings. Unless they have been formally notified of them – in writing - they can’t even begin to start addressing them.

I recently went to tribunal regarding Occupational Therapy ( OT ) provision for my son and it was agreed that this would be provided annually for the duration of my son's primary school years.

The LA and health commissioners agreed to this in front of the Tribunal judge. Three months later, following transfer to Education, Health and Care plan and at the next annual review, OT are proposing discharge of my son from their caseload.

At this point, he will only be in year three. I have written to them highlighting the tribunal outcome, which they continue to ignore. What can I do?

IPSEA says:

Unfortunately, because an Education Health Care Plan is subject to an annual review, the LA is within its powers to amend the plan and to change, reduce or remove elements of the provision at that time. It is worth checking your tribunal decision carefully as we think it is unlikely that the tribunal would have ordered provision beyond the duration of 12 months for this reason. The existence in law of the annual review process effectively limits the tribunal to decide the issues on appeal to the next twelve months of a child's education.

If the LA does amend your son’s EHC plan following the annual review you will have a right of appeal against the new plan, and if you have evidence that he still requires OT it is likely that the Tribunal would order OT provision to be returned to the EHC plan.

In the meantime, until and unless the EHC plan is amended, the LA has a statutory duty to secure the provision specified in Section F of the EHC Plan (s.42 Children and Families Act 2014). There are resources about this on IPSEA’s website here: https://www.ipsea.org.uk/what-you-need-to-know/ehc-plans/final-ehc-plans-and-enforcement

We also have a model letter which you can use to complain to the Local Authority if the provision in an EHC plan is not being provided here: https://www.ipsea.org.uk/what-you-need-to-know/model-letters/model-letter-6

We should point out that we are assuming here that the OT provision has been specified in section F (the special educational provision section) of your son’s plan, rather than in section G, the health care provision. If OT is specified in section G of your son’s plan there is a duty on the responsible commissioning body to arrange the specified health care provision whilst it remains there. As there is no right of appeal against the contents of section G of an EHC plan you would need to appeal to have OT specified in section F. This is where we would usually advise therapies such as OT to be specified because of the explanation at section 21(5) of the Children and Families Act that “Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision).”

Parent Question

Please can you advise what happens if a young person moves to a new area with an EHC plan but the new area was not informed of the move prior.

I know that provision shouldn't stop while the new area carry out their assessment, but in this case the area was not informed, so the young person is currently not receiving their care package and it will take up to 20 weeks for a new plan. The plan received from the old area was only issued fairly recently just prior to the move.

IPSEA replies:

The fact that the new LA were not told in advance about the family’s move to their area does not mean that the new LA is not responsible. They clearly are aware that the young person is now residing in their area and that means that they are responsible for him/her.

The details of what should happen once a child / young person moves into a new area and their EHC plan is transferred to a new Local Authority, are set out in regulation 15 of the SEN and Disability Regulations 2014

Within 15 days of being told about the move, the old Local Authority must transfer the EHC plan to the new Local Authority, and as from that date the new Local Authority will be responsible for securing the provision within the EHC plan. This means that the provision specified in Section F and the child / young person’s attendance at the school or college specified in Section I should continue. If a family have moved some distance, and the child / young person’s attendance at the school / college named in the EHC Plan is “no longer practicable”, then regulation 15(6) allows the Local Authority to arrange for them to attend a different school / college. This might not be the school / college of the young person’s choice, but in the short term, the Local Authority would simply have to offer a suitable school or college place to allow the education to continue. They would, however, then have to take steps to change the EHC plan, so that it no longer named the school / college in the ‘old’ Local Authority. At that point, a parent or young person would have a right to request a particular school / college to be named. In all cases (including where the move is only a short distance and the child / young person is able to continue attending the same school / college), the new Local Authority must serve a notice within 6 weeks of the transfer of the EHC plan, informing the parent/young person that:

• the EHC plan has been transferred;
• whether they propose to make an assessment, and
• when they propose to carry out a review of the EHC plan (they have a duty to carry out an annual review of the EHC plan within 12 months of the last annual review or within 3 months of the EHC plan transferring – whichever comes later).

It is certainly not an absolute requirement for the new LA to carry out a EHC needs assessment and it is worth noting that Regulation 15(3)(b) makes it clear that where the old Authority supplies advice from a previous assessment, the new Authority must not seek further advice where the person who wrote the advice, the old authority and the parent/young person are all satisfied that the advice is sufficient for the purpose of a new assessment. This prevents the new Local Authority re-assessing and seeking new professional reports unnecessarily.

Your question makes reference to a ‘care package’ and the information above relates to the educational provision specified in the EHC plan. We are not clear from your question, what type of ‘care’ package you mean.  The SEN regulations do contain provisions in relation to the transfer of responsibilities between bodies responsible for commissioning health care provision, and these address what should happen if the young person is moving to a new area with a different commissioning body.  They make it clear that where it is not practicable for that new commissioning body to arrange the health care provision specified in the EHC plan, it must, within 15 working days beginning with the date on which it became aware of the move, request that the new local authority makes an EHC needs assessment or reviews the EHC Plan, and where the new local authority receives such a request it must comply with that request.

However, we think it might be a social care package to which you are referring, and if this is the case, then  it is worth noting that the Children and Families Act does not impose a duty on LAs to secure the social care provision in section H of a plan. The duty to arrange that provision derives from the underlying legislation (CSPDA 1970 in relation to children) or the Care Act 2014 for young people over the age of 18. We do not know how old the ‘young person’ is from your question, but if they are 18 or older, then then there are specific regulations made under the Care Act setting out what should happen to ensure that ‘continuity of care’ is preserved for a young person moving in this way.  There are factsheets on the Care Act here: https://www.gov.uk/government/publications/care-act-2014-part-1-factsheets/care-act-factsheets

Factsheet 9 addresses the ‘continuity duty’ which will mean that even if a new local authority was not notified of a person moving into their area, and haven’t completed their assessment of their social care needs, they must continue to secure the provision which was previously being provided by the ‘old’ local authority, until that assessment has been completed and a new care plan issued.

There are no specific regulations for provision transferring in the same way for a child receiving social care provision, but we would expect the new local authority to offer social care provision to a child in there area who had previously been receiving such provision (although again, they may well choose to carry out their own assessment to determine whether the nature of any ongoing social care provision which would be offered.)

Social Care Professional Question:

A child has an EHCP and is registered at a special school, but is not currently attending as it is felt the school is not meeting need. Is it possible for parents to access the Element 3 funding to be used to pay for external support and activities for the child during school hours and if so, how do you go about this?

IPSEA Answer:

Element 3 funding describes the nature of the funding delegated to the school by the LA to secure the provision in the Plan and it won’t be as straightforward as simply moving this funding from one place to another (because the Plan specifies that the child attends a particular school and receives provision in a certain way – and what the parent wants is to change this).  However, it might be possible for parents to home educate and access funding (via a personal budget with direct payments attaching) for special educational provision specified in the child’s EHC Plan. To be in this position, the parents would effectively need to establish that there is no school that can meet their child’s needs and the child, therefore, needs to be home educated (s.61 Children and Families Act 2014 gives LAs the ability to specify that education otherwise than at a school be provided via an EHC Plan, but only where education in a school is “inappropriate”). This will require up to date evidence of the child’s special educational needs, the provision to meet those needs and why that provision cannot be delivered in a school.

In this particular case, the parents would need to seek an amendment of the EHC plan, perhaps by a request for an early annual review.  The LA is not duty bound to agree to this although there is an argument that if the school is not meeting need, the LA should be willing to consider it.

If the LA agreed to review the Plan it is at this stage that the parents can ask the LA it identify a personal budget (which is a notional amount identified to cover the costs of the special educational provision specified in the Plan). It might be possible for direct payments to be made in respect of this personal budget.  If the LA subsequently refused to make any amendments to the Plan, the parents would have a right to appeal to a SEND Tribunal.   Equally, if amendments were made but the parents were unhappy with it, they will have a right to appeal – but only in respect of Sections B, F and I.

There are reasons why an LA might not be able to identify a personal budget or disaggregate funding such that direct payments for special educational provision are possible.  The refusal to identify a personal budget or make a direct payment cannot be appealed to the Tribunal and can only be challenged via the LA itself.

It will be really important for the parent to seek advice, for example from their local IASS or IPSEA, about seeking these changes and gathering the evidence to show that education in school is inappropriate under s.61.

It’s really important to remember that, although a parent can home educate their child, if what is happening is that the child is still on roll and the parent is simply keeping the child at home, there is a risk the LA could issue an attendance notice requiring the child to return to school.

Parent asks:

My daughter has an EHC plan, and her provisions have not moved over to the secondary school, one being her laptop. I asked the school, and they just replied they do not have one to give due to COVID-19. So my daughter does not suffer I wondered if I could get her one as they offered nothing so had to go and buy one the school said it was ok to do this, but why do they take my funding and make me buy a laptop?

Ipsea answers:

When a child has an EHC plan, the LA is ultimately responsible for ensuring the provision in that EHC plan is made. We would recommend that you contact the LA and explain the situation, and ask them to reimburse you for the cost of the laptop you had to buy because of their failure to provide one. If they refuse to do so, you could make a formal complaint (you could adapt our model letter on this topic). If this does not resolve the issue, you may be able to escalate the matter to the LGSCO.

Parent Asks:

My daughter got EHCP in mainstream school. She got the provision of 5 hours weekly specialist teacher input. But the specialist teacher is not following any of section F in EHCP even after lots of meetings. Do we have the legal right to withdraw the consent for the teacher to work with my child?

ISPEA Answers:

If the special educational provision specified within section F of the EHC plan is not being provided, then the first step would be to complain to the local authority (LA). The LA has a duty under section 42(2) of the Children and Families Act 2014 (CAFA) to “secure the specified special educational provision for the child or young person” and therefore we would suggest complaining to the Director of Children’s Services at your LA if this is not being done. There is a model letter on the IPSEA website that you can use to do this, which can be found here: https://www.ipsea.org.uk/complaining-when-the-provision-in-an-ehc-plan-is-not-being-made-model-letter-6 You can find contact details of the person to send this letter to here: https://adcs.org.uk/contacts/directors-of-childrens-services

When considering your complaint, it may be useful to read through section F of your daughter’s EHC plan to ensure all special educational provision is fully specified and quantified. The LA has a duty under section 37(2) of the CAFA to “specify” the contents of the EHC plan. The following is taken from paragraph 9.69 of the SEND Code of Practice 2015 regarding the contents of section F:

“• Provision must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise, including where this support is secured through a Personal Budget
• Provision must be specified for each and every need specified in section B. It should be clear how the provision will support achievement of the outcomes”

But later clarifies:

“• In some cases, flexibility will be required to meet the changing needs of the child…”

If you are concerned that the provision isn’t being provided, consider whether it is adequately specified and quantified within the EHC plan and whether the wording of section F is legally enforceable.

If you have concerns over the contents of the EHC plan, you can request an early review to discuss these concerns. It would be useful to be able to review not only the provision which is written into the EHC plan but also how it is being delivered and your concerns over this. IPSEA has a model letter which you can use to request an early review here: https://www.ipsea.org.uk/asking-for-an-early-review-of-an-ehc-plan Again, this should be sent to the Director of Children’s Services at your LA.

It is difficult to advise further without knowing what the specialist teacher is or isn’t doing which is causing concern, and how much harm this behaviour could cause. You can not insist that a particular member of staff does not work with your child, unfortunately, and you should consider the long-term consequences of requesting that special educational provision is withdrawn altogether. However, if you have specific concerns about a member of staff or how they are dealing with your child, you should follow the school complaints procedure and request a meeting with the headteacher as soon as possible to discuss

Daughter age 21. Statemented since age 5. In residential special college with 139a. Mainstream FE college has offered her a place (requires 1:1 support) and the local authority has just turned down EHCP. Given her a My Support Plan. College says they cannot support her without EHCP. She cannot use public transport without support.

EA have said: 

• Essentially, for young people without an EHCP, the funding for post 19 is through the Skills Funding Agency, not the EFA & LA. This does not mean that additional support is available. Skills FA do provide additional learner support.
• So, it should not be the case that the college cannot offer without an EHCP in place. There may be exemptions to charges as a post 19 ‘adult’ course charges will come into play. There are exemptions, and circumstances may be that full charges will not be made. College can explain the criteria. Will be starting the appeal process next week (whatever that actually means). Can you help or advise?

Many, many thanks for such a superb site. I've stumbled upon it via the power of Google.

Marguerite says:

Firstly, congratulations to your daughter for gaining a place at college. 

Secondly, all young people with an LDA (or a statement) should transfer to an EHC plan unless something has happened which means that their individual needs have changed (so that they no longer need a statement or learning difficulty assessment). The legal test for issuing an EHC plan is no higher than it was for issuing a statement. Additionally, The SEN Minister, Ed Timpson, has stated (on the video to SNJ) that no one should lose their statutory support as a result of the changes to the new system. 

The Transition Guidance, 2015 states the following: 

3.15     From 1 September 2016, all young people who had received support as a result of an LDA in further education and training who continue in further education or training beyond that point and who need an EHC plan must have one. 

4.23    Young people in further education or training who receive support to meet their SEN as a result of an LDA and who intend to continue in education beyond 31 August 2016 can choose either to:

• continue for the time being to receive their support as a result of their LDA (where it is still required); or
• request an EHC needs assessment at any time.

It is expected that the LA will carry out this assessment for all young people with an LDA and then issue them with EHC plans unless there is a particular reason why they think a young person no longer needs the same level of support. Even if you do not trigger an EHC needs assessment, the LA must transfer all LDAs to EHC plans by April 2016. If the LA does not agree with that request, then the decision can be appealed to the SEND Tribunal.

Funding: 

For funding purposes, a high needs student is defined as:

• a young person aged 16 to 18 who requires additional support costing over £6,000;
• any young person aged 19 to 25 subject to a Learning Difficulty Assessment (LDA) or an EHC plan who requires additional support costing over £6,000.

 In all instances, a high needs student’s placement must be commissioned by the local authority and include the top-up funding (element 3) to be paid to an institution. An agreement must be in place between the two parties to that effect. The funding system has two aspects which are:

• place funding is known as elements 1 and 2 for post-16 institutions (except special schools and special academies)
• top-up funding (known as element 3 for post-16 institutions)

 Place funding includes the funding which pupils and students at an institution attract for their core education and basic programmes and funding to meet the first £6,000 of additional support costs. Top-up funding is that which is required over and above place funding, to enable a pupil or student with high needs to participate in education and learning.

 Students aged 19 to 24 without an EHC plan or LDA: 

For students with SEND aged 19 to 24 without an EHC plan or LDA, the Skills Funding Agency (SFA) assumes the responsibility for commissioning provision even when the support costs exceed £6,000. In this situation, learning support funding should be used. Where a young person aged 19 (or over but under 25) arrives at college and, based on the institution’s assessment, is likely to need additional support costing over £6,000, the institution can request a statutory assessment for an EHC plan from the young person’s local authority. In these cases, the local authority has up to 6 weeks to decide whether to conduct an assessment. While the decision to assess or actual assessment period is ongoing, the institution should enrol the learner as an adult learner funded by the SFA. If the learner subsequently goes on to receive an EHC plan, then the institution should make a change to the individual learner record (ILR) and the learner would be funded by EFA. 

I suspect that the College is wanting to claim the top-up funding (element 3) and your LA is stating her needs can be met without an EHCP. Hence, why they’ve issued a “My Support Plan” which is not a legal document.   

You’ve mentioned that you are going to be starting the appeal’s process. IPSEA provides free, independent, legally based advice and support to parents who have children that have Special Educational Needs and/ or disability as they navigate the education system. 

Parent Asks:

Does the LA have to continue supporting an EHCP if parents are home educating, or will it cease?  Can the child re-enter the system when home-educated, i.e. after some time, take up a special school place or once decided is home education permanent?

ISPEA Answers:

When a parent chooses to electively home educate, they are effectively accepting all responsibility for their child’s education, and the LA no longer has a duty to provide an education. Where an EHC plan is in place, the LA also no longer has a duty to provide the special educational provision set out in section F of the plan, although the LA could use its discretion to do so.

To be clear, the EHC plan would remain in place, but section I would state that parents are making their own arrangements. Annual reviews must continue as normal to ensure that the plan is up to date and everything is still working. At any point, you could request that your child returns to a school placement, and the LA would have to fulfil its duties in identifying a suitable school and securing the special educational provision within section F. As a parent, you would have the right to request a specific school to be named in the plan; having home-educated does not impact this if you then change your mind.

You can find more information about naming a school in a plan here:https://www.ipsea.org.uk/choosing-a-schoolcollege-with-an-ehc-plan

It is important not to confuse elective home education with education other than at a school (“EOTAS”). EOTAS is put in place when it is agreed that it would not be suitable for the child to be educated in a school and therefore, other arrangements are necessary (section 61 Children and Families Act 2014). In this situation, the LA remains responsible for securing the special educational provision within the plan.

You can find more information about EOTAS and home education here: https://www.ipsea.org.uk/home-education-and-education-otherwise

The LA conceded to the tribunal 3 years ago. Since then no support, no EHCP and no help.

The child was bullied at mainstream school and was undergoing tests for autism, although had a diagnosis' of dyslexia

At the same time as the SEND tribunal a 2 year disability tribunal , failure to make reasonable adjustments for dyslexia , could not read the blackboard the tribunal ruled that the child was disabled but the mainstream school did not have a duty to (help) diagnose the child and the child was "choose to sit the spelling" therefore did not discriminate against the child .

Both the tribunals accepted the LA Educational Psychology (EP) report stating the child did not have dyslexia and the parents reports stating he did. The LA harassed parents for a second LA EP report, so they could change their report during the 2 year disability tribunal. The disability appeal was refused and the  SEND appeal was ignored. Please help.

IPSEA says:

I’m afraid it is difficult to offer you relevant information or advise you without more information but, if you believe that your child is unable to access education because he needs a very high level of support, and he does not currently have an EHC Plan, then the way forward would probably be to make a new request for an Education, Health and Care needs assessment. As you probably know, a parent or carer can make a request for an EHC needs assessment, the process that leads to an EHC Plan being issued. It is not necessary for a child to be attending school to qualify for an EHC needs assessment and the request itself does not need to be made in a particular form. The simplest way to make a request for an EHC needs assessment is simply to write to the local authority.

We have a model letter that could be used for these purposes, which can be found here:

https://www.ipsea.org.uk/what-you-need-to-know/model-letters/model-letter-1

It is important to remember the legal test the local authority must apply is section 36(8) of the Children and Families Act 2014 (the Act):

“The local authority must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted under subsection (7), the authority is of the opinion that—

(a) the child or young person has or may have special educational needs, and

(b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.”

The test is simply whether the child or young person may have SEN and that it may be necessary for the special educational provision to be made for the child or young person in accordance with an EHC Plan.

We think it would be helpful if you could speak to one of our trained advisers so recommend you follow this link to find out how to do this: https://www.ipsea.org.uk/contact/advice-and-support/advice-line

My son's Occupational Therapy department tell me they want to reduce the five hours per term support on my son's statement to two hours per term because the five hours is 'not working' and they want to integrate OT into school provision.

I don't agree with this - if they want to change provision then I think they also need to monitor whether this is helping and suggest adaptations, particularly as their previous approach was 'not working'. I have an independent report coming which says that his OT provision should increase to 10 hours/term. What muscle do I have in resisting a reduction of hours at his annual review?

IPSEA replies:

It sounds as though there may be two conflicting OT reports to be discussed during the upcoming annual review of your son’s statement.  The statutory process of annual review should give ample opportunity to ensure that all the advice is circulated and the evidence for any changes to the statement is considered.

The legal process gives you the “muscle” to ensure that any changes to the statement are evidence based and everyone’s views are considered.

It will be important that the advice from both professionals is circulated by the head teacher before the annual review meeting.  You can also ask the head teacher to invite the professionals to the meeting.

The meeting should focus on discussion about your son’s needs, his progress (or, if things are “not working”, a lack of progress) and recommendations for changes to the statement.  These discussions (and any difference of opinion) should be reflected in that report which will be sent, with the information and advice provided to the meeting, to the LA.  If you’re not happy with the report you can send your own views separately.

Then the LA decides whether to maintain the statement, to cease to maintain the statement or to amend the statement.  These decisions will be sent to you.  If the decision is to leave the statement as it is, you would have a right of appeal to the Tribunal.  If the decision was to amend the statement, you’ll have the right to make representations about the amendments and ask for a meeting with the LA to discuss them if you want one.  Then the LA will finalise the amended statement and, again, you’ll have a right of appeal.

Parent Question:

What do I do when child (16) in 6th form has a statement and yet school are seemingly disregarding it, giving him no support and just 12 hours of education a week? Where can I turn to ensure they meet they statutory obligation to support him.

IPSEA Answers:

A statement is a legally binding document on an LA to make the special educational provision in it. Ultimately they can be challenged legally for failing to put that provision in place. However, the first question is to look at his statement and make sure it actual specifies what he is supposed to receive by way of support. Too often statements have been written in vague ways which do not give schools clear indications as to what needs to be put in place using words such as “opportunities for”, “regular”, “as required”– weasel words.

Using the statement, identify what provision he should be getting but is not. Then call a review of the statement – this can be the Annual Review if it is due soon or an interim review. If the school won’t hold a meeting write down all your issues and send it to the LA and the school making clear that you are aware that it is the LA’s duty to arrange the provision in Part 3 of the statement. Explain your concerns and the fact that the provision is not being put into place and ask for clarification as to what action the LA will take to get the school to do it.

You may also want to ask what programme of learning he is on and whether this is ambitious enough or suitable for him if it is being provided by only 12 hours a week actually at school. Such an attendance usually relies on pupils doing a great deal of work on their own, and if his difficulties mean that he can’t manage such independent learning, and these are recognised in the statement, you and he have real grounds for complaint. The SEND Code of Practice 2014 at paragraph 8.41 talks about the need for a Local Authority to provide a full package of support across 5 days for those with an EHC plan.

Depending on the result of this meeting/letter you will either have your solution or you will need to get further advice. Contact us via www.ipsea.org.uk

Parent Asks:

My daughter has just transferred from a statement of SEN to an EHCP. The wording for the provision of "a specialist teacher visiting termly" has been changed on the EHCP. The wording is now "a specialist teacher visiting when appropriate." Is there any case law I can use for this not to be changed? Have they broken the law or just acted underhand?

IPSEA Answers:

The Special Educational Needs and Disability Code of Practice: 0-25 years 2015 states in regard to the special educational provision in section F of the EHC plan that, “provision must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise, including where this support is obtained through a personal budget” (9.69).

Case law backs up the requirement of specificity.  In the 2016 case JD v South Tyneside UKUT 9 (AAC), the Upper Tribunal confirmed an earlier significant  judgement (L v Clarke & Somerset County Council [1998] ELR 129) in which the Judge found that the statement should be so specific and clear as to leave no room for doubt.  The South Tyneside case confirms that this remains applicable under the more recent Children and Families Act 2014.

So when the Local Authority changed the wording they have taken away the specificity and it is likely that the Tribunal would require the LA to amend the wording.  On the face of it, the Authority is indeed acting unlawfully.
If you have a draft Plan, then you should point out the legal requirement of specificity and ask your LA to reinstate the original wording.

However, if they won’t do this (or you already have a final EHC Plan) you can only challenge this wording by appeal to the Tribunal.  You have two months from the date the final Plan is issued (or one month from the date of receiving a mediation certificate – which ever is later) to do so.  You can contact IPSEA’s Tribunal Help Line for more advice on mediation and/or registering an appeal.

My son's (mainstream) school have employed an ESA with no experience or training.

Although lovely, she does not have the tools for appropriate differentiation and his progress and behaviour are deteriorating (although not with other, more experienced, staff). This is his 5th in under 2yrs, so I don't want a change, I want to work with school to give her the support and training she needs to help her in her job. We are meeting with school: can you advise me what leverage we have to expect them to get her trained and any links or resources that might help us/them?

Many thanks - and thanks for this wonderful resource that I've only just discovered!

IPSEA says:

I wasn’t sure from your question whether your son has an EHC Plan or not.  If he doesn’t have one then the key legal duty would be that arising under s.66(2) Children and Families Act 2014 which requires schools to use their “best endeavours” to secure the provision required by the SEN of a pupil.   It might be useful to remind school of this duty and try to establish what support and training they can provide the ESA with to ensure that this duty is met.

It’s also important to remember that it’s not necessarily the job of the ESA to differentiate the curriculum for a child, but to deliver the differentiated curriculum created by the teacher: the school might also need to look at whether the teaching staff need support/education about your son’s needs in order to ensure he gets the right provision.

If school are struggling to provide the right support for your son and he doesn’t already have a statement or Plan, you could consider asking the LA to carry out an EHC needs assessment which is the first step towards getting an EHC Plan and we have information about that here:

https://www.ipsea.org.uk/what-you-need-to-know/ehc-needs-assessments

However, if your son has a statement/Plan then you need to consider whether the special educational provision specified in Part 3/Section F is being delivered.  If the new ESA lacks the training/expertise specified in the statement/Plan or isn’t able to do the things she is required to do by the statement/Plan, then you can involve the LA in your discussions and point out that the provision specified isn’t being delivered.  Ultimately, it’s the LA who are legally obliged to make sure this provision is delivered and it is good to involve them early on if there’s a problem.  They will also be well placed to advise on what resources for training are available.

If getting the right ESA support is proving an on-going problem, you could also think about what changes might be made to the statement/EHC Plan to ensure that this doesn’t keep happening and ask for these changes at the next annual review.  Our online resources might be useful if you’re considering this:

https://www.ipsea.org.uk/what-you-need-to-know/changing-an-ehc-plan

Parent question:

Please could you advise how many hours 1:1 support you would expect a child with a statement, 22.5 hours to get. My son currently gets 15 hours 1:1 with an LSA, the rest I am told is for resources and small group work.

This seems a little unreasonable to me.

IPEA Answers:

The devil is in the detail!

You need to read very carefully what the wording providing for 22.5 hours actually says. Too often a statement – and I suspect in the future an EHC plan - will have wording something like this: “22.5 hours of individual, small group and whole class support”. This is not the same as “22.5 hours of individual 1:1 support from his own Learning Support Assistant”.

I suspect that when you check it, your wording says something like the first. If you feel your child needs more individual support than they are receiving then talk to the school, look at the evidence you have as to what progress he is making and call an early review to request the wording is amended.

Parent asks:

If a child is permanently excluded, what happens to the personal budget? For example,  a child is permanently excluded in November 2016 and by February 2017 an Independent Review Panel found that the exclusion was illegal, various other issues, the school has no evidence of using any of the £6000 and the personal budget stated on the EHCP. The Governors have agreed to reinstate.

For the 3 months, when the child was out of education, do the school get to keep that personal budget for that period?

IPSEA Answers:

In law, the local authority (LA) is responsible for securing all of the special educational provision detailed in Section F of the EHC Plan. In practice, the LA will rely on the child’s placement to deliver the provision through the LA passing on funding to the school, typically through a contractual arrangement. When a child is permanently excluded, the LA must arrange a suitable full time education and this will include continuing to secure the special educational provision in Section F of the EHC Plan. It is not clear whether the LA continued to do this in your case. Depending on the terms of the contract, the LA would need to take up the issue of any funding not spent directly with the school but this is a matter between the school and LA.

What is important is that your child continued to receive a suitable full time education and the special educational provision detailed in Section F of the EHC Plan throughout the duration of the permanent exclusion. If this did not happen you may want to consider complaining to the LA with a view to taking it further to the Local Government Ombudsman if the complaint is not resolved to your satisfaction. You can find details of this by clicking the following link and choosing the document titled ‘Local Authority complaints’.

Parent Question:

What should I do if the school do not provide a graduated approach? The number of TAs in the school has been reduced over time and the Senco says he has not been given any funding to provide specialist support in school.

IPSEA Answers:

I am presuming that your child has been identified as having SEN but at this stage that the school are able to support them from their existing resources i.e. expertise and funding for the special educational provision they need. This level of support is now called “SEN Support” and replaces the “School Action/School Action +” stages of support under the old system. The question is whether your child is getting the right support for his or her needs. To assess this the school – in partnership with you – need to be clear what special educational needs your child has, what special educational provision the school believe needs to be put in place to support those needs and the expected outcomes from the delivery of this provision over varying timescales. The new approach to doing that is detailed in the SEND Code of Practice – chapter 6 is relevant for schools – and is a four stage process of 1. Assessing a child’s needs; 2. Planning provision/identifying outcomes 3. Doing it i.e. putting it into place and then 4. Reviewing what has happened. Your school should record this process as part of an SEN Support Plan they must have drawn up with you and must review with you at a meeting at least 3 times per year.

If your school are no longer providing the SEN provision that your child needs put in place then it may well be time for them and/or you to request that the LA carries out an EHC needs assessment. If this resulted in a EHC plan being issued the LA would have the legal duty to make the provision i.e. fund the school to make it. You need to meet with the school to discuss the SEN Support Plan particularly the outcomes to be achieved. If your child is making little or no progress then it could be time to trigger that EHC needs assessment – the IPSEA model letter will guide you in doing that.

Parent Asks:

I know the LA are responsible for implementing the EHC plan but what responsibility does the school have - for example - if an EHC plan was not implemented?

IPSEA Answers:

If a child or young person has an EHC Plan, the school must use their ‘best endeavours’ deliver the special educational provision specified in Section F.

The duty to use ‘best endeavours’ to secure special educational provision applies to:

• mainstream schools (including mainstream academies)
• maintained (state-funded) nursery schools
• 16-19 academies
• alternative provision academies
• Further Education institutions
• Pupil referral units

(Note that this does not apply to special schools or independent schools.)

The law says:

“If a registered pupil or a student at a school or other institution has special educational needs, the appropriate authority must, in exercising its functions in relation to the school or other institution, use its best endeavours to secure that the special educational provision called for by the pupil’s or student’s special educational needs is made.”  See Section 66 of the Children and Families Act 2014.

The reference to the ‘appropriate authority’ means the governing body, proprietor, or management committee of the school or other setting. The legal duty is directly on them as a body and not the headteacher of the school or principal of the college. The governing body (or equivalent) is able to effect change as it is responsible for the appointment and performance management of such posts.

If the school cannot, or does not, deliver the special educational provision specified in Section F of an EHC plan the LA has a direct duty to secure the provision they need and must provide the school with the resources (finances or expertise) to do so.

A parent asks:

Who is legally responsible for making sure what is in the statement/Education, Health and Care Plan is implemented?

What is the legal claim on when it is not? I know it is not Educational Malpractice because that does not include legislated legislation (Statement/EHC) I was told it is most likely Personal Injury -  is that so?

Where is the precedent located, which case, for any breach of Statement vs. an SEN?

IPSEA answers

The LA is responsible for securing provision in the EHC plan in accordance with s.42 of the Children and Families Act 2014 or s.324 of the Education Act 1996 for a Statement.  When a local authority fails to comply with its legal duty to make the provision specified in the EHC plan or Statement, the parents or a young person can make an application for Judicial Review.

An application for Judicial Review must be made by a solicitor to the High Court for breach of  statutory duty. Firms with public law Legal Aid contracts are able to bring cases for Judicial Review for those who are financially eligible. For information about legal aid, see http://www.justice.gov.uk/legal-aid

Judicial Review is the way that courts supervise how public bodies exercise their powers. It is not available as a remedy where there are effective alternative remedies. The court does not decide the merits of a particular case in a judicial review or replace the decision of a public body with theirs. They consider, instead, how the public body carried out their duties and check that decisions were lawful.

It is therefore necessary to ensure that the Statement or EHC plan is clear and specific to claim that there has been an unlawful act by the LA in their failure to provide the provision as stated.

Parent asks:

My adult son was awarded a laptop provision in his EHCP and he receives 1:1 support in college. The college is asking him to sign a loan form and I feel he is being put under pressure to sign the form. Who does the equipment belong to?  Should SEN students have to sign for and be responsible for equipment when it is obvious they have SEN and need support with basic things? He is anxious about the whole situation and the consequences if the laptop was lost.

IPSEA answers:

If the provision of a laptop is specified in Section F of the EHCP then the local authority (LA) have a duty in law to ensure this provision is ‘secured’; in other words, they are the body in law who must ensure your son has the provision of the laptop as specified in his EHCP.

It is not uncommon for colleges to ask students to sign a loan form when they are taking electronic equipment. Such forms usually detail the terms of using the equipment and the student’s responsibility to use the equipment responsibly. You do not say how old your son is but young people under the age of 18 cannot usually be legally held to a contract because the law considers them as ‘minors’. In your son’s case the provision of the laptop is specified in his EHCP and this means it must be provided for him regardless of whether there is a signed loan agreement in place. Put simply, it is deemed special educational provision that he must have so if the college refused to provide the laptop in absence of the signed agreement the local authority would be in breach of its duty to secure the special educational provision in his EHCP which in this case is the provision of a laptop.

If you have any further problems you would like to discuss with one of our specially trained volunteers please book a call back through this link.

Parent asks:

My son is 23 has Autism, OCD, PDA, Dyslexia, Dyscalculia and has attended a mainstream college since September.

In November 2016, he won his tribunal and the Local Authority named his college in his EHCP. He is currently studying the subject Media and the tribunal ordered the LA to provide equipment, such as a laptop and camera, the college provided the LA with a full list of equipment. The Tribunal also ordered the Local Authority to provide 3 hours extra tuition per week to be delivered by a media tutor.

Only one piece of equipment has arrived in the last two weeks, and no tuition has been provided. He is studying Functional Skills and only has one lesson a week and sometimes not full lessons. He is falling behind and has been told already he cannot progress to the next level 3 media due to him being weak in math and English and we have complained but to no avail. What more can we do he has no representation?

The college has informed him that the Local Authority says he must pay for his one to one support worker out of his social care budget.  Also, he is expected to contribute to the costs of his transport. He is supposed to pay from home to the train station and the Local Authority will pay from the train station to the college, are they able to do this?

His  EHC plan states ' full time one to one support in college'  his one to one worker should be the same worker who escorts my son as he cannot travel independently, should the authority pay all of it?

His social care budget only pays for activities is old and outdated and we his family provide all of his care. His moral is very low due to these failings to provide the provision in his EHC plan. We have endured two years of Tribunals one for the Plan another for the wording and placement and during this time my son has been at home with no education.

IPSEA Answers:

The Local Authority has a statutory duty to secure the provision specified in Section F of the EHC Plan (s.42 Children and Families Act 2014). Whilst a school or college will often be delivering the provision in a plan in practice, this duty means that if the college can’t or won’t secure this provision then the Local Authority must do so. It is extremely rare for transport to be regarded as special educational provision and we would not normally expect to see it in Section F.  However, it may be that the Tribunal decided that in your son’s case the provision of a support worker from college to escort your son to college was a form of training, and therefore concluded it was appropriate for it to be specified in section F of the Plan.

We have a model letter which you can use to complain to the Local Authority if the provision in an EHC plan is not being provided here: https://www.ipsea.org.uk/what-you-need-to-know/model-letters/model-letter-6

If this is not successful you may want to consider taking matters further and complaining to the Local Government Ombudsman or bringing judicial review proceedings. You will require more information about going to the High Court and Local Authority Complaints here: https://www.ipsea.org.uk/what-you-need-to-know/challenging-decisions

After a long battle, we have now an up to date Educational Psychology and Occupational Therapy (OT) report to inform the EHCP. My daughter is 18 and in her last year at a special school. The OT report has made recommendations that 18 x 1 hr sessions be put in place to train staff to deliver a program and the LA have agreed. I have just found out that the school are now responsible for going out to tender for the OT provision.

I am horrified as the school have not been following the statement nor did they carry the EHCP assessment effectively. I asked for amendments and we now have a robust plan with needs and provision itemised.

However, the problem is making the school carry it out.  In addition, I was notified that the LA did not send the school a copy of the reports. When I challenged the LA on this, they said they were instructed by tribunals to NOT put lots of detail in the EHCP and not to send professional reports to school.

My daughter leaves at the end of May 17 so I need the provision to be put in place immediately.

1. What leverage do I have on school/LA to make them source the OT
2. Ensure the school carry out the provision as detailed in the EHCP?
3. If the EHCP says 1:1 for literacy and numeracy, should I make school fund it or go back to LA to request more funding if they say they do not have sufficient?

Marguerite says:

Section F is where the special educational provision must be set out.

1. The SEND Code of practice 9.69 provides more detail. Provision must be detailed and specific and should normally be quantified, for example in terms of the type, hours and frequency of support and levels of expertise. Provision must be specified for each and every need specified in section B.s.21(5) Children and Families Act 2014 (the Act) is an important section as it informs you about health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision). Provision such as speech and language therapy and occupational therapy, needs to be included in Section F. If included in this section a LA has the legal duty to secure this provision even if the local health care or social care provider delivers it in practice.

Please ensure your daughter’s Occupational Therapy is in Section F!

IPSEA have a EHCP checklist you can use to check the content. You can download it from here:

https://www.ipsea.org.uk/what-you-need-to-know/ehc-plans/draft-ehc-plans

2.The Local Authority has a statutory duty to secure the provision specified in Section F of the EHC Plan s.42 Children and Families 2014 (the Act). Whilst a school or college will often be delivering it in practice, this duty will mean that if the school or college can’t or won’t secure this  provision  then  the  Local  Authority must do so.  This may happen when section F is not adequality specified.    If you feel the school isn’t delivering the provision you can complain to the Local Authority.

You’ll find a model letter from IPSEA here:

https://www.ipsea.org.uk/what-you-need-to-know/ehc-plans/final-ehc-plans-and-enforcement

3. If section F within your daughter’s EHCP states 1:1 literacy and numeracy, then my response above still applies.