ASK IPSEA Legal Agony Answers

Parental participation

Should I be told about experts observing my child in school?

A team called ASCOSS have visited my daughter once, at nursery. She has now been in primary school since Sept this year. I managed the transition myself. Ascoss said they would let the school know they were there if the school needed support and that they would arrange to go in at a future date. I then learnt yesterday that ascoss went in to the school and met the head teacher and observed my daughter, without me knowing. Can they do this?

Am frustrated as neither of them knows her needs (she is high functioning ASC). Can I ask to be involved in future? Also, are there guidelines about who needs to be informed about her diagnosis? I want to keep it confidential at the moment.

ipsea answers

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 IPSEA Answers:

I am not at all sure who ASCOSS are but am presuming it stands for “Autism Spectrum Condition Outreach Support Service”. This seems to be a locally provided support service in your area. Under the Children and Families Act 2014 the LA has a duty under s. 19 to use their best endeavours to ensure parents fully participate in decisions about their child’s SEN. Not letting you know that this visit was going to take place, not asking for your input, not involving you so far in any decision making around the needs they have identified your child as having or the support needed to be put in place for them is not complying with this duty.

As far as the school is concerned, a school does not need your permission in order for a professional to observe your child but it certainly good practice. Once they begin to make special educational provision (that is provision which is additional to or different from what is being made available general to children of the same age in mainstream schools) they the school must notify you. Importantly you need to find out why you were not been told about this visit? If it is a failure to communicate with you then the school need to review their approach – quickly.

Your question about who needs to know about your daughter’s diagnosis is more difficult to answer. If your daughter is to get the support she needs then it is very important that those responsible for her education know about it. Otherwise they cannot plan to support her properly or get the right professionals in to help them find out what support she needs. This is something that all staff should know about at the school – including lunch-time assistants and classroom support staff. If it is other parents knowing then there is no need for them to know if you do not want that to be the case. You need to make your wishes clearly known. However you may well find it helpful for some of the other parents to know as they may well be a good source of support for you and your daughter.


Placement

Are Tribunal placement decisions portable?
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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

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.

Can The College Force My Son To Attend A Placement Not Named In His EHCP?

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?

 

ask ipsea

 

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.

 

 

Can The LA Specify When A School Place Will be Available?

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?

 

ask ipsea

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.

 

Flexi-schooling for SEN children
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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

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.

Has our daughter been discriminated against by her choice of college?
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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

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’m not happy with my son’s school
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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.

LA refusing our placement choice for our clever but challenged son
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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

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.

Moving to a new area
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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

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.

What is an “efficient use of resources”?
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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

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.

When Can We Name Our Son’s Preferred Secondary School?

Parent asks:

 

Our 9-year-old son has a diagnosis of ASD (Aspergers) and has a statement. We believe we are due to have Alistair's statement transferred to an EHCP in October (annual review), although this has been postponed for the last 2 years.  Are we are required, at this point in time, to name our preferred secondary school (He will start year 5 in September)? If so, we fully expect the LA to refuse our choice and if so, we will be prepared to take the issue to Tribunal.

What would be the likely point in time at which a Tribunal would take place, on the assumption that we would want a conclusion prior to Alistair going into year7? Our key reason for understanding this is that we will need to arrange independent reports and legal representation, but wish to avoid a situation where the reports are completed "too soon" and can be challenged as "out of date" by the LA.

 

 

Helen Gifford replies

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Helen answers:

 

You are right to be expecting the EHC plan transfer to start this October, as all local authorities are required to complete all their transfers by 1 April 2018, so October 2017 really is getting to the last moment to do this.You must be informed by the local authority at least two weeks before the EHC plan transfer starts that this is what they are going to do, and the date they will start. In practice, the start date is generally the date of what would have been the statement annual review, and that meeting has it's purpose changed. Once the EHC plan transfer process starts, it must be finished, i.e. a final EHC plan issued, within 18 weeks.

 

As Alistair is in year 5, you probably won't be asked to name your preferred secondary school at this point, and even if you are, that will only be for information purposes. It's year 6 where the secondary transfer process kicks off, as that's when an EHC plan naming Alistair's secondary school must be issued by 15 February in year 6, so that will be 15 February 2019. You will certainly be asked for your secondary school placement preference during the autumn term of year 6.

 

In terms of a tribunal appeal, the final EHC plan being issued by 15 February in year 6 should give enough time to complete the tribunal process before he starts year 7, as long as you don't take up all the two months allowed after the issue of the final EHC plan (or, if later, 1 month of receiving the mediation certificate) to lodge the appeal. It should take 12 weeks from you registering the appeal to the hearing, with the tribunal aiming to get the final decision sent within 10 working days of the hearing. You will need to consider mediation first unless you are only appealing on placement (Section I in an EHC plan), but you don't have to mediate, and if you do, the mediation should be arranged within 28 days of you asking for it.

 

So, it will be the autumn term of year 6 that is a good time for thinking about legal representation and independents reports.

 

SaveSave

When do the new SEND rules apply to us?
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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

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.

Post16

Can a student aged 19 receive funding from the Local Authority?
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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

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.

 

Can The College Force My Son To Attend A Placement Not Named In His EHCP?

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?

 

ask ipsea

 

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.

 

 

My son with Down’s needs a college place to nurture his talent

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

 

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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.

Parents involvement between the ages of 16-18
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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

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!)


Practitioner matters

Can I record school meetings?
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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

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.


Provision

ASK IPSEA: My child’s OT provision in his plan is being discontinued. What can I do?

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 answers

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Julie Moktadir, IPSEA CEO 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).”

ASK IPSEA: My son’s support assistant is untrained!

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!

ask ipsea

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Julie Moktadir, IPSEA CEO says:

I wasn’t sure from your question whether your son has a statement/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

https://www.ipsea.org.uk/file-manager/SENlaw/FAQs-about-statements/statement-faq-18.pdf

ASK IPSEA: What happens to their support when a disabled child moves to a new area?
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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 answers

Julie Moktadir, IPSEA's CEO 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, which can be found here: https://www.ipsea.org.uk/file-manager/SENlaw/send-regs-uksi2014.pdf

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.)

Can a parent request funding to pay for external support?
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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 answers

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.

Can My LA Refuse To Issue A Personal Budget?

Parent asks:

I was recently refused a Personal Budget (for swimming lessons for my 16 yr old) they are not something his school provides nor was it on the placement offer and they are not intending to start them. I was refused under the 'Head would not agree to part of the Personal Budget Regulations, which I know is completely wrong.

  1.  should the SEN team be doing the assessment? They are not social services and are in completely different buildings and departments
  2. Are the short break assessments different to the Chronically Sick and Disabled Persons Act (CSDPA)1970? If so, would I need to stipulate the difference in a request?
  3. A am I correct that the assessment I want is the CSDPA and I would write to the LA Safeguarding Board?

I have researched the  LA's safeguarding boards children's assessment chronically sick and disabled act in all its varieties and wordings and it leads me right back to the SEN Team.  If I do have to go through the SEN team I feel there is no point, as their assessment I assume is made round the table.  The team is very clear on the difference between severe and profound and simply complex.  I do understand funding needs to go to those in the severity of needs first, but severe and profound are the only ones possibly getting support from my LA.

 

ask ipsea

 

IPSEA  answers:

The first thing to remember is that direct payments for social care and personal budgets for special educational provision are two separate things.

A personal budget in the context of special educational provision is a notional sum of money identified by a local authority, usually when an EHC Plan is being drawn up or amended, to cover certain provision.  Even if a personal budget is identified (and there are reasons why local authorities don’t have to identify a budget) this doesn’t mean that direct payments for such provision will follow: for example, direct payments cannot be made for goods or services to be used in a school without the express written consent of the head teacher (and this may be what happened in your case).

The assessments and policy you refer to, from your local authority’s website, seem to relate to social care services and you can also receive direct payments for social care provision.  This is outside of IPSEA’s area of expertise.

However, a young person with an EHC Plan will have a number of needs identified by health, education and social care and the law is clear that if the provision to meet a special educational need “educates or trains” the young person, then this is special educational provision and should be in section F of the EHC Plan.

Therefore, in the context you’ve described, if there is a special educational need which requires provision in the form of swimming lessons (for example if your son required a non- weight bearing form of PE or if learning how to swim and be safe in the water was an identified step towards independence and adulthood) then those swimming lessons could be specified in section F of an EHC Plan.

We’re not sure if the swimming lessons are currently identified somewhere in your son’s EHC Plan?  If they are, and they are in section F, then regardless of whether you’ve been given a direct payment and regardless of whether it’s within the school’s “placement offer”, your local authority has a duty to secure that this provision is made under section 42 of the Children and Families Act 2014.  If they are in H1 or H2 then you need to pursue your local authority’s social care department because their duty arises under the social care statutes and not the Children and Families Act.

If the swimming lessons are not specified in your son’s Plan, or are in the Plan but not in section F, then you can certainly try to get the special educational need which means your son requires swimming lessons (and the lessons themselves) specified in the Plan in sections B and F respectively. You will require evidence of the special educational need and of swimming lessons (and their frequency) being the provision to meet that need. The annual review is the best time to try to get changes made to an EHC Plan.

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Can The LA Make Amendments To The EHCP Which Differ From The Tribunal Order?

Parent asks:

 

Are the LA allowed to make changes to the EHCP from that which was ordered by the Tribunal? What should we do if they do not reinstate the EHCP to that which was made by the First Tier Tribunal?

 

ask ipsea

IPSEA answers:

 

It is not entirely clear from your question whether the local authority has issued an EHC Plan which does not fully comply with the First-tier Tribunal’s decision or whether, having complied with the decision, it has, at a later date, issued another amended Plan.

 

If immediately following a Tribunal, the local authority has issued an EHC Plan that does not fully comply with the decision of the Tribunal, then the local authority is likely to be in breach of Regulation 44 of the Special Educational Needs and Disability Regulations 2014 which deals with compliance with Tribunal orders.

 

Without knowing the exact nature of your appeal to the Tribunal it is not possible to say exactly which timescale applies, but the regulations are clear that a Tribunal order must be complied with.

 

You should write to the Director of Children’s Services complaining that the local authority is in breach of its duty to comply with the Tribunal order.

If this fails you may have to apply to the Secretary of State for Education to enforce compliance.  The complaint would be about the local authority acting unlawfully (being in breach of Regulation 44) and made under section 497 of the Education Act 1996. The Secretary of State has powers to direct local authorities to take action to remedy any unlawful act. Complaints can be made online: https://www.education.gov.uk/schools/leadership/schoolperformance/schoolcomplaints-form

 

It may, alternatively, be necessary to make an application to the High Court for judicial review in order to ensure compliance. The time limit for applying for judicial review is as soon as possible but in any event within three months. It is usually necessary to show that everything possible has been tried to resolve the problem before resorting to court action.

 

You can also make a complaint to the Local Government Ombudsman (LGO). For details of the procedure see: http://www.lgo.org.uk/making-a-complaint/ There is also a helpline number to call: 0300 061 0614.

 

If on the other hand, the local authority complied with the Tribunal order by issuing an amended Plan in the form that it ordered, but has subsequently amended the Plan, it may not be acting unlawfully. The local authority is entitled to amend an EHC Plan at any time as long as it follows the process set out in the Special Educational Needs and Disability Regulations 2014.  This involves, among other things, sending you a copy of the EHC Plan together with a notice specifying the proposed amendments, giving you at least 15 days to make representations about the content of the draft Plan and the opportunity to request a meeting with an officer of the local authority.

 

If the local authority has issued an amended Plan and you are unhappy with the content you will have a fresh right of appeal to the First-tier Tribunal.

 

 

Can The LA Reduce My Son’s Provision?

Parent asks:

 

My son's statement is in the process of converting to EHCP and we are awaiting the draft EHCP. Prior to the draft being issued the LA sent us a  letter notifying us of their intention to gradually reduce the provision which is in current statement and our right to appeal if we disagreed.

 

I know that provision in his statement needs to continue and the LA is unable to remove or reduce the provision until the EHCP is finalised.  Where is this duty mentioned in the  SEN code of practice or SEN Regulations?

 

ask ipsea

 

IPSEA answers:

 

You are correct that the statement remains in force until the EHCP is finalised. This means that the LA continue to be under a legal duty to arrange all of the special educational provision set out in part 3 of your son’s statement.

 

This duty can be found in the Education Act 1996. The following extract from section 324 states:

 

(5) Where a [local authority] maintain a statement under this section, then— (a) unless the child's parent has made suitable arrangements, the authority— (i) shall arrange that the special educational provision specified in the statement is made for the child

 

You can see this set out in its entirety by looking at IPSEA’s link to SEN and Disability law here. You may also wish to write to your LA using model letter number 6 which is contained in our information ‘common problems relating to statements of special educational needs’ by clicking here. You will need to adapt the letter to make clear that the letter you have from the LA suggests they will be reducing the special educational provision set out in your son’s current statement until the EHCP is finalised and this is unlawful.

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.

 

Can The LA Specify When A School Place Will be Available?

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?

 

ask ipsea

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.

 

How can I obtain the appropriate SEND support for my child?

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 answers

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Julie Moktadir, IPSEA CEO 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

How can I stop the reduction in my son’s Occupational Therapy provision?

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 answers

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Julie 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.

I need help to get the school to enforce a statement
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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

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

Is specifying the provision in section F of an EHCP a legal requirement?
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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

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.

Provision hours for 1:1 support
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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.

ipsea answers

 

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.

What happens to the personal budget when a child is excluded?

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?

 

ask ipsea

 

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’.

 

 

What should I do if the school do not provide a graduated approach?
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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

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.

Who is legally responsible for making sure what is in the EHCP is implemented?
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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

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.

Who Owns The Equipment Specified In Section F Of The EHCP?

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.

 

ask ipsea

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.

 

Whose duty is it to provide the provision in the EHCP?

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.

 

ask ipsea

 

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

 

 

 

Skip to: A: Advocacy, Assessments, AutismE: Education, EHC Plans | H: Health | L: Legal Assistance | N: Negligence | O: Outcomes | P: Parent Participation, Placement, Post 16, Practitioner Matters, Provision | S-Z: SEND Reform, Social Care, Statement provision, Transfer to EHCP, Transport

Please note: These questions are answered by the team at IPSEA Charity, who are trained in SEND law, not by Special Needs Jungle. If your query is urgent, please contact them directly.