Is the adopting LA allowed to change section I of the EHCP without our consent?
Parent Asks:
My yr6 child has an EHCP stating a secondary school on it in LA A. We are in the process of appealing sections I, B & F. We have since moved house to LA B and LA B are now responsible for the EHCP, they are also aware of the appeal in progress as they attended a mediation meeting.
After mediation, LA B agreed to take the request of our choice of school (which is a mainstream IR in their area and can meet need) to a panel meeting and decide if this could be accommodated.
The outcome of this panel was not only could they not accommodate our choice of school but that they would not accommodate the LA A school placement. Instead, they have allocated my child to a school that neither myself nor my child wants. The reason given for refusing our request was "the attendance of the child or young person there would be incompatible with the efficient education of others as the school is at capacity".
The school has said that they can meet need, yet the LA state the addition of my child would be incompatible with the efficient education of others as at capacity. What evidence must I gather to present at the tribunal, is it on me to gather information?
ISPEA Answers:
When moving from one LA to another, the process for the transfer of the EHC plan is set out in Reg 15 of the Special Educational Needs and Disability Regulations 2014 (SEN Regs). The old LA must transfer the EHC plan to the new LA either on the day of the move or within 15 days of the move. Once the transfer has taken place, the new LA has the same legal duties as it would have done had it issued the plan, including the duty to secure the special educational provision in section F. The new LA also has six weeks from the transfer date to notify the parent that the transfer has taken place and to notify the parent when the plan will be reviewed. The new LA must review the EHC plan within either 12 months from the EHC plan being made or last reviewed, or 3 months from the date of the transfer, whichever is the later, but can hold a review sooner if required. It sounds like the new LA has reviewed the plan and decided to change the school named in section I. However, the LA should have followed the full annual review process and you should have been involved in this process, including being invited to a review meeting and being given the opportunity to review a draft plan and name your chosen school. It’s not clear whether that happened or not, but as you have already started the appeal process, the best step now would be to continue the appeal against the new LA.
When the LA move happened, you should have informed the Tribunal and requested a stay. The Tribunal would then stay the appeal (put it on hold) while the new LA is given time to comply with the transfer process as set out in SEN Reg 15. As you are unhappy with the new LA’s decision following the review, you can ask for the appeal to be reinstated and continue to appeal sections B, F, and I against the new LA.
The decision whether to name a school on a plan is the LA’s, although they must consult with the school for their views. At appeal, the onus will be on the LA to prove that the addition of your child will impact so greatly on other pupils that it would result in an incompatibility that could not be resolved by the special educational provision being put in place as detailed in the EHC plan. It is not enough just to prove that there will be some impact. It sets a relatively high bar and will be harder to prove if the school is not in agreement. The type of evidence you will need will depend on the evidence and reasoning submitted by the LA, as well as potentially the type of school. However, there is some general information about gathering evidence for appeals available on the IPSEA website here: https://www.ipsea.org.uk/evidence-contents-appeals
