SEND Legal query answers

I am a parent of a child with SEN and also an independent supporter. Our local authority is saying any child with a statement who wants to move from mainstream to special needs to transfer to an EHCP first. This is upsetting parents because it's often taking them a while to accept that mainstream isn't working and then the change is held up by the EHCP transfer process. The problem is, I've been unable to find it written anywhere to say this is absolutely necessary. We have some children on reduced timetables and literally just being managed in mainstream school while this goes ahead and I'm just wondering if this is something I can challenge.

Marguerite says:

4.12 Between 1 September 2015 and 31 March 2018, local authorities must transfer children and young people with statements of SEN to the new arrangements:

• in year 9;
• when leaving youth custody; and
• prior to them moving from:
  • relevant early years settings to school (including where the child remains at the same institution),
  • infant to junior school,
  • primary to middle school,
  • primary to secondary school,
  • middle to secondary school,
  • school (including school sixth forms) to a post-16 institution or an apprenticeship,
  • mainstream school to special school, or
  • special school to mainstream school.

However, what’s concerning is, if the LA has acknowledged the child or young person requires a special school, they should start the process, consult with parents and allow the child or young person to start the school as soon as possible to reduce the anxiety for all involved. Reduced timetables are not an option and not a long term solution. In fact, they should be avoided where possible.  We know that LAs are struggling to adhere to the 20-week deadline, keeping a child or young person at home is only going to exacerbate the situation.

Another positive for moving the child or young person within the process is that the new school can contribute to the short and long term outcomes and write a legal and meaningful EHC plan.

As you are an Independent Supporter, I would definitely organise a meeting with the SEN department to share the concerns of the parents as soon as possible.

My son is 18yrs old, has an SEN and my local authority want to start the transfer over to an EHCP even though my son has not been provided with ANY education according to his SEN since May 2015. I want them to make provision as per his statement but all my LA want is to meet to begin the transfer process. I read with interest that Ofsted areas where outcomes for children and young people are causing concern or where LAs are failing to complete assessments or EHCPs within statutory timescales.

Helen says:

You are right, the local authority must provide the special education provision that is your son's statement, and you are completely within your rights to insist on that. Whilst your son has a statement and attends school, the local authority must arrange all the provision set out in Part 3 of the existing Statement and arrange for the school placement in Part 4 of the statement under the Education Act 1996.

I think it would be helpful for us to clarify what the issue is - is your son not getting any education at all, or is he attending school but the support set out in the statement is not being provided? If he's not at school, did he leave school in May 2015 with any arrangements in place for his future?

If your son is not in school, I suspect your authority is viewing the statement as 'lapsed' as Statements only apply to young people who are over statutory school age if they are attending a school. However, the raising of the participation age to 18 does mean that the local authority should be ensuring that your son is engaged in education or training, and if he is not, then they are failing in their duties under that requirement as well, so that is another point that you can raise with them.

If your son is attending school and will be moving to college in September 2016, then I think the transfer to the EHCP urgently needs to start now as it should have all been done by the end of last March. If he will be staying at school for another year, then the transfer could wait a bit and the authority concentrate on getting the provision in place that they are required to be making as the truly urgent piece of work for them.

Parent Question:

My daughter, who is 16, has a draft EHCP. The LA have issued transition arrangements for Children & young people with Statements, but make no reference to those with draft EHCP's. What should the LA be doing to make the draft a legally enforceable EHCP?

IPSEA Answers:

Does your daughter have a statement of SEN (as well as the draft EHC plan)? If she does then she will transfer to a “legal” EHC plan – once an EHC assessment has been carried out - in accordance with the timetable in your LA’s transition plan.

If she does not have a statement of SEN then the Statutory Guidance on transition issued by the DfE makes it clear that those with a non-legal (i.e. illegal) EHC plan must be a priority group for this first year to go through an EHC needs assessment and be issued with an EHC plan. Read the briefing that we have written at IPSEA on transition http://www.ipsea.org.uk/what-you-need-to-know/transition and then write to your LA and ask them when they intend to start this process. If it is not clear when you receive your reply then please contact IPSEA for individual advice.

The LA has carried out an EHC Assessment for our son and has agreed that an EHC Plan is required. However, it is taking an inordinate amount of time for the plan to be finalised and issued (it is now more than 40 weeks since the request for assessment was made). Whenever we raise the issue with the LA there is a flurry of activity and then everything grinds to a halt again.

Could this be regarded as a de facto refusal to make an EHC Plan even though a draft exists? What recourse do we have as appeals to the Head of Children's Services end up back with the SEND Department and inactivity?

IPSEA says:

It would appear the LA is in breach of its legal duty. Although there is no legal time limit specified by which the LA must issue the draft EHC Plan, Regulation 13(2) of the Special Educational Needs and Disability Regulations 2014 states that the LA is required required to send a copy of the finalised EHC Plan as soon as practicable, but in any event, within 20 weeks of the local authority receiving the request for a EHC needs assessment. There are very limited exceptions to exceeding the time limit and 40 weeks appears incredibly excessive. If a draft exists, it is unlikely that you could regard the LA’s inaction as a refusal to make an EHC Plan.

Although you have already raised this issue with the LA we would suggest you do this using IPSEA’s model letter which can be used in these circumstances. You can find the letter by clicking on this link. If you do not receive a satisfactory response to your letter you could contact Civil Legal Advice with a view to exploring whether you or your son could take action against the LA for the breach of legal duty using legal aid. More details and how to contact them can be found here.

We have a statement to EHCP transfer review for my 14-year-old. Since she entered special schools in 2010, we don't feel she's made much progress especially in language/communication and sensory issues that hinder her educational abilities.
We wanted to commission private assessments for the review process, but the school has disallowed access apart from insufficient time slot of 30 minutes - this was learned at last moment after weeks of requesting access. It makes us feel like this review meeting and the subsequent process will not fully take account of her needs and thus open up solutions for provision.

What are our rights in terms of soliciting alternative views to the assessment? Will it be more advantageous to wait to do private assessment till things are more advanced in terms of a draft EHCP to which respond?

Also, we still have had little contact with the school's occupational therapist and SALT despite raising concerns in these areas so we will we haven't had an opportunity to input into their assessments if they do submit a report as requested. Shouldn't that normally be expected?

Is it best to escalate these issues above to school leadership or take this to the LA as the school appears in control over both the process and the eventual provision, although I understood it should be with the LA?

Once at the review meeting, if any of it appears lacking in rigour or supporting reports and info is there sufficient time to raise this as an issue for the process before a new plan is created by the LA?

Helen says:

This is a highly unsatisfactory situation that you find yourself in.

I would be inclined to escalate your concerns to the local authority, copying in the school leadership team. It is the local authority who have the final responsibility for both the transfer to an EHC Plan including the reports gathered as part of that transfer process, and for arranging the provision that is set out in your daughter's statement and EHC Plan when it is written, so they definitely need to be involved.

You are fully within your rights to obtain private reports, and I would ask the local authority to ask the school to allow the people carrying out the reports to have reasonable access. The only time when I am aware of compulsion becoming possible with the school is if you end up appealing to the SEND Tribunal when you could ask the Tribunal to direct the school to allow this access, but you are not there yet. However, it is no-one's interests for the private assessors to have to guess how things are at school so hopefully the local authority will work with you to overcome this.

Sadly, it is not uncommon for school based therapists to have relatively little contact with parents. However, it is not terribly helpful as most therapy interventions are best implemented across both the school and home. The Code of Practice might help here. Section 9.50 requires that the local authority gives anyone who they approach for advice as part of an EHC assessment (which the transfer process to an EHC Plan includes) copies of representations from the child's parents, so I think when you contact the local authority, tell them that you want your concerns shared with the relevant therapists, so that they can then take them into account with their advice. I also recommend asking that the EHC Plan when written includes liaison with parents as part of the therapy provision.

The best time to seek private advice rather depends on the circumstances. Where there is a reasonable chance of thorough advice being supplied from the local authority commissioned sources, I would suggest waiting until those reports have been gathered as you may not need any extra advice or may end up paying for a report that says pretty much the same thing as the local authority one. However, where you do not have faith in the services that the local authority will approach, it is worth considering arranging the private reports sooner and submitting them to the local authority so that they are available for the drafting of the EHC Plan. I must warn you that where the local authority's advice differs from the private advice, the local authority is likely to prefer their advice over yours, but they must be able to give reasons to justify this decision on the basis of your daughter's needs.

My son has a statement, we are going to transfer to an EHCP. The reports are old: OT, 5 years; Physio 10 years; Ed Psych 6 years. As my son is 17 and he will be transferring to adult services this year, I wanted a clear picture of all of his needs so I asked for new assessments at the beginning of the process so that all of the information would be on the table when all of the professionals met. I was told by SENDAR that this is not what the CoP says, it is not our LA's policy. I was told that the professionals at the Transfer Meeting would decide if reports were needed and that the paperwork from that meeting would trigger the reports.

I could understand if something new came to light during the meeting that that would happen, but these are clearly identified needs including some that led to the LA allowing him to be in an out of county school.
 Is this correct? What DOES the CoP say?

Marguerite says:

The transfer guidance states:
5.6        To transfer a child or young person from a statement of SEN to an EHC plan, a local authority must undertake a Transfer Review. This will require them to undertake an EHC needs assessment under section 36 of the 2014 Act.
5.1        The EHC assessment process will allow local authorities and families to work together to consider existing assessment information within the statement or LDA and what, if any, further assessment information is required.

Further assessments can be from all the professionals working with your son or service not working with him too. The professionals working with him should be providing written advice unless you, the local authority and the professional agree that the report is current and is appropriate. In seeking advice and information, the local authority should consider with professionals what advice they can contribute to ensuring the assessment covers all the relevant education, health and care needs of the child or young person. Please remember that a transition from a statement to a plan always involves an EHC needs assessment. A statement cannot simply be tipped into a plan. The EHC needs assessment is the essential feature of transition and it cannot be avoided or delegated by a local authority.

Article 20 provides that the C & F Act 2014 and the SEN Regs apply to an EHC needs assessment conducted as part of the transition in the same way as they do to an EHC needs assessment under the C & F Act 2014. This means that the law which applies to EHC needs assessments applies equally to transition, for example, the entitlement to ask for additional reports under SEN Reg 6 (1) (h) will apply – as will all of the other rights parents and young people have during an EHC needs assessment. There is an additional right which applies to transition which is the right to attend a meeting with an SEN officer and this is an addition to, not instead of, the rights parents and young people have to a meeting in respect of a draft EHC plan.

Have a think about your son’s area of need in terms of:

• Sensory & Physical or Health
• Cognition & Learning
• Communication & Interaction
• Social, emotional and mental health difficulties.

As he is 17, you would expect to see the Preparing for Adulthood Outcomes, in the four areas; Employment, Education, Community Inclusion and Health. Chapter 9 of the CoP states reports older than a year old should not be used and his statement should have been reviewed annually. However, we know that many are not updated, often because, after a long, hard battle, parents do not want to risk having provision removed.

A parent asks

I am a parent of a 18 year old who has an SEN, but has been excluded from independent school since May 2015 with the full knowledge of LA and has not been provided education since.

My son's Statement of Special Educational Needs exists, has not ceased to be maintained, still in force and no provision of part 3 of the Statement of Special Educational Needs has been made since he was excluded. I have advised LA this is unlawful. My LA are dismissing the fact that they have not provided education for one year but want to arrange a transfer meeting to start process changing over to EHCP. I have said that LA should make arrangements to provide as per my son's statement first.

The independent school should not have excluded my son but likewise my LA to withdraw his placement leaving him in limbo without any education for one year without accounting for their actions. 

IPSEA answers

The first question to ask here is what outcome are you looking for? Does your son want to return to a similar school or post 16 placement?

Under your son’s current statement, the LA has a duty to ensue he receives the provision specified in Part three, but beware: a statement of SEN can only provide support whilst he is in a school placement and the fact that he is 18 years old and over compulsory school age - the end of the academic year in which a child turns 16 years old - will mean that it is very unlikely that the LA will amend it to name a different school now. It could even be argued by the LA that the statement has lapsed and that they no longer have a legal duty to make provision for him

You should start the transition to an EHC Plan as soon as you can. As he currently has a statement this will mean that the LA have to carry out an EHC assessment of his needs and decide if they are going to issue an EHC Plan for him. If the LA issue an EHC Plan this will ensure that he continues to be entitled to special educational provision and will name a new educational placement for him potentially up to the age of 25 years old, which can include a place at an FE College or an apprenticeship. It is clearly not right that the LA has not made provision for him for the past year, but do not lose the opportunity to transition to an EHC Plan now.

You should contact the LA and say you want to start the process of transitioning to an EHC Plan at once.

What information is required at the start of the transfer (old review meeting) all I have been given is a form with just a few details from my son's teachers. Also who needs to be at this meeting?

Helen says:

Exactly how the transfer process runs does vary between local authorities, but it seems to be pretty much standard practice for schools to be asked to complete a form that covers both the usual statement review requirements (child's progress, is the provision still correct, have the child's SEN changed etc.) and starts to think about what needs to be in the EHC Plan (more information about you and your child's views, deciding upon outcomes to be worked towards etc.).

Some schools are filling out this form as far as they can before the review meeting and sharing it with parents and then finishing off filling it in at the review meeting. Others are just gathering teachers' views on progress, provision etc. which will be supporting information to the form when it is completed, sending those to parents in advance of the review meeting, and then filling out the form from the meeting. It sounds to me as though you might be in the latter case here. If so, I think it is worth asking the school or the local authority for the form that will be completed by the school following the review meeting so you know what will be covered, and can be prepared to put your views over in the meeting.

At a review meeting, there must be a representative from the local authority, relevant school staff such as the SENCo, class teacher, TA etc., and external professionals who are working with your child e.g. speech and language therapist, occupational therapist, advisory teachers such as literacy or ASD specialists, an educational psychologist. All the external professionals may not be able to attend the meeting, but anyone who is currently working with your child should provide a report that you should have at least two weeks before the meeting so that their advice can be discussed at the meeting, even if they are not there.

It is worth remembering that a transfer to an EHC Plan involves an EHC assessment (very like the statutory assessment that was done for the first statement), and so all relevant professionals should be giving written advice, and if they have not done so, they should be asked for it by the local authority unless you, the local authority and the professional in question agree that an already existing report is suitably up to date.

Parent Question:

Are there guidelines to stress free home/school transport for SEN children?

IPSEA answers:

There is statutory guidance to the provision of home/ school transport which you can find on the IPSEA website http://www.ipsea.org.uk/what-you-need-to-know/home-to-school-college-transport

It does not however define what “stress free” is. This needs to be identified in the context of an individual child’s needs as what is stressful to one may well be relaxing to another! If the description of your child’s needs are accurate in their statement/EHC plan this should help identify triggers which would make it stressful.

Parent Question:

What happens if a statemented 8yr child refuses to go on transport to school because of negative experiences causing severe anxiety? What are the responsibilities of the LA and setting? Is no education provision since June acceptable?

IPSEA Answers:

This is a question that requires answers to further questions before you can be advised so please call IPSEA.

But remember that an LA has a duty to provide a full time education for a year 8 child and provide free home to school transport to their nearest suitable school if the child is an an eligible child – there are various different ways to qualify but children with SEN and disabilities who have mobility problems such that they could not reasonably be expected to walk to school on their own will qualify. The school named in your child’s statement or EHC plan if they have one is accepted as the nearest suitable school by your LA unless they have entered into an alternative arrangement with you. Free home to school transport is not just available for those who have statements or EHC plans.

The transport arrangements made have to be stress free and safe. If the negative experiences the child has experienced have been around previous transport arrangements then this needs to be carefully looked at, assessed and a suitable alternative put in place. Whatever the cause of the delay not receiving an education since June is not acceptable. Please seek advice quickly.

Parent Asks:

Our little boy is moving from mainstream to special school at the end of February. My husband works for the council and is putting in a request for flexible working, to facilitate either dropping him at school or being at home to meet the transport. He is asking to start at 9 am each day, rather than 7.45 am. Where do we stand legally, if his employer refuses the request? There is no ‘breakfast club’ at the special school and we cannot afford not to work. I am a Headteacher, so I need to be in school before he would be collected.

IPSEA Answers:

Unfortunately, employment law is outside of IPSEA’s remit, but you may find the following links useful:

https://workingfamilies.org.uk/

https://workingfamilies.org.uk/article-categories/flexible-working

If your son will be receiving home-to-school transport, you could request that he is collected and dropped off at a different address from your home, such as a family member, childminder or one of your workplaces, if appropriate. You should be able to find your LA’s transport policy on the Local Offer online, and you can find more information about transport here: Children of compulsory school age (aged 5 to 16) | (IPSEA) Independent Provider of Special Education Advice