LA refusing our placement choice for our clever but challenged son

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.