Can I still advocate for my 15 year old daughter?

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Can I still advocate for my 15 year old daughter?

I was moved from one LA into temporary accommodation in another. We are currently receiving home education  as the LA have not been able to find her a year 11 place. The home educations is working very well.

However, I received a letter asking me to name in order of preference what post 16 college she wishes to attend and that I have to do this soon or they will place her in the closet college.

I contacted the LA by phone to request an extension as I cannot view the places she is interested  bu the date suggested on the letter.  I was told this was not possible that is the time frame, basically take it or leave it.

They also said that at 15 she is classed as a young person and must talk for herself. My daughter has ADHD/ASD/ODD/Anxiety  and Trauma and cannot cope with these types of meeting, I explained this and said that I believe the age is 16 where I would then have to ask my daughter to write a letter giving me authority to act on her behalf with regards to her EHCP, education and transition to adulthood. I was told they will only accept a letter from the courts and that even at 15 she will have to speak and represent herself.

Could you please advise as this is not what I have understood to be true nor what other SEN parents have experienced in the past?

IPSEA says:

You are correct that under the Children and Families Act 2014, it is not until a child has reached the end of compulsory school age (ie the last Friday of June in the year the child turns 16) that they become a young person. At that point parental rights under the law in relation to the young person's education will automatically pass to the young person themselves. However, even then, it is still perfectly acceptable for an LA to deal with a parent, rather than the young person, if the young person wishes.

This is explained at paragraph 8.13 of the SEND Code of Practice:

 As young people develop, and increasingly form their own views, they should be involved more and more closely in decisions about their own future. After compulsory school age (the end of the academic year in which they turn 16) the right to make requests and decisions under the Children and Families Act 2014 applies to them directly, rather than to their parents. Parents, or other family members, can continue to support young people in making decisions, or act on their behalf, provided that the young person is happy for them to do so, and it is likely that parents will remain closely involved in the great majority of cases.

You have not told us if your daughter currently has a statement or an EHC plan, or neither, but the following advice assumes that she does have an EHC plan describing home tuition. If that is not the case, please come back to us.

It would appear that the LA are preparing to amend your daughter’s EHC plan in readiness for her transfer to post 16 education in the next academic year. Paragraph 9.179 of the SEND Code of Practice says:

An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution

Paragraph 9.180 says:

For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer.

The LA would appear to be jumping the gun by asking you/your daughter to choose a college at this stage. The process that should be followed when an LA propose to amend a Plan is explained at paragraph 9.194 of the SEND Code of Practice:

Where the local authority proposes to amend an EHC plan, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. The child’s parent or the young person should be informed that they may request a meeting with the local authority to discuss the proposed changes.

It is at this stage that the LA should ask the parent or young person which school or other institution they wish to be named in the EHC plan. You must also be given at least 15 calendar days to comment and make representations on the proposed changes to the Plan.

The types of school which you have a right to request are set out in s.38 (3) of the Children & Families Act 2014 and they are:

  • a maintained school, mainstream or special;
  • an Academy (which includes free schools);
  • an institution within the further education sector in England (i.e. an FE college)
  • a non-maintained special school;
  • an independent school approved under s41 of the Children and Families Act 2014, in accordance with paragraphs 9.78 to 9.94 of this chapter.

If you make a request for one of the schools or institutions listed in s.38(3), the Local Authority can only refuse your request using one or more of the exceptions in s39(4) Act. These are that:

(a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or

(b) the attendance of the child or young person at the requested school or other institution would be incompatible with—

(i) the provision of efficient education for others, or

(ii) the efficient use of resources.

These are the only exceptions that the Local Authority can use to refuse the request, and the only ones that they would be able to rely on if the case were to go to the SEND Tribunal.

The Local Authority has a duty to consult with the school which a parent or young person requests, but the final decision as to which school or institution to name in the final plan rests with the Local Authority. When one of the schools or institutions listed in s.38(3) has been requested, the Local Authority can choose to name that school / college, even where the school / college has said that they do not wish to be named, or they feel that they cannot meet the child or young person’s needs.

You can find the SEN and Disability Code of Practice 0-25 here: _Code_of_Practice_January_2015.pdf

You would probably find it helpful to speak to one of our trained advisers to discuss this in more detail. Follow this link to find out how to do this: