Parent Asks:

My son is in and has always been in a small special needs setting, he is due to leave in the next week, he has an EHCP, but it did not name a placement in Section I. We have chased the LA since December but have not received a response.  They did not attend our meeting but knew of the placement we wanted. We received the final plan in March and continuously tried to contact them, we found out they hadn't even contacted our requested school (post 16). We then lodged an appeal and they decided to send another EHCP with a named placement which is not our preference. The placement is a mainstream setting who said they could not meet his needs. My son will not cope in a mainstream setting, he struggles with the 5 others in his class.The placement we wanted now has no spaces.

IPSEA Answers:

It sounds like you have already submitted your appeal and are awaiting a response from the Tribunal. Once you have submitted your appeal form, the Tribunal will register the appeal and send you the Tribunal directions, which set out all of the relevant deadlines that you need to follow, such as the deadline for evidence, attendance form, and the final hearing date. We would advise that you start to obtain evidence straight away to ensure you have everything you need before the final evidence deadline. Following the LA’s response to the appeal, the LA will initiate the working document process if you are also appealing sections B and/or F. This is the process by which the EHC plan goes back and forth between you and the LA, and you make agreements on changes within the plan. As the LA has issued a further final plan since issuing the plan that you have appealed against, you should inform the Tribunal and ask that the subsequent plan is treated as a Working Document in the existing appeal, rather than you submitting a new appeal. You will need to seek the LA’s views on this first.

With regards to the school placement, the law regarding naming a place in an EHC plan is set out as follows:

If the type of school you have requested is one of the types set out in section 38(3) of the Children and Families Act 2014 (CAFA) below:

“(a) a maintained school;

(b) a maintained nursery school;

(c) an Academy;

(d) an institution within the further education sector in England;

(e) a non-maintained special school;

(f) an institution approved by the Secretary of State under section 41 (independent special schools and special post-16 institutions: approval)”

Then the LA can only use one of the following reasons set out in section 39(4) Children and Families Act 2014 to refuse the placement:

“(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.”

At appeal, the onus would be on the LA to evidence that one of these criteria apply. You can check the type of school you are considering here: https://www.get-information-schools.service.gov.uk/

If you would like to name a wholly independent school on the EHC plan, then the onus would be on you to show that either the independent school is the only school which can meet need, or that naming the school does not constitute unreasonable public expenditure (i.e. it is not significantly more expensive than other suitable options).

The evidence you require will depend on the LA’s reason for refusing to name the school placement as this is what you will be arguing against. Generally, the following can be used for evidence:

• Professional assessments and reports
• Evidence from school, including school reports, copies of emails, home-school diary, examples of school work etc. You can also submit a Subject Access Request to the school to obtain the child’s school records which can be useful evidence.
• Information about the school (from the school’s website, for example)
• Written evidence from people who have worked with the child
• A statement from the child (via a third party if necessary)
• SEN Support Plans or IEPs
• Paperwork from annual reviews
• Video or audio evidence

If your school of choice is saying there are no places available, the LA is likely to argue that naming the school would be incompatible with the efficient provision of education for others. In this case, the LA would need to prove that the addition of just one more child will have such a significant impact on the other pupils that it would be unreasonable to name it on the plan. This is often quite difficult for LAs to prove, but will depend on the number of pupils already attending, the needs of the pupils and the environment