Parent Asks:

My son is 14 and has complex special needs, including ASD, ADHD, Global delayed development, SCLN and extreme anxiety. He attends a local authority-maintained special school for pupils who are either deaf or have severe hearing difficulties. My son was admitted into year seven as the school started allowing children with SCLN to attend.

At the time he joined, he hadn’t been given the diagnosis of ASD. We had experienced difficulty in getting support from his previous school in requesting a referral to CAHMS as they deemed that a clear diagnosis would be difficult as his other needs would mask some of the results of the ASD assessment.

Once he had started secondary school, a referral was swiftly made by the school to CAHMS, with the school giving full support. They recognised that he displayed severe ASD tendencies and questioned how his previous school were unable to see it. He obtained a severe ASD diagnosis very quickly in April 2021.

At the beginning of year 9, it became apparent that his current school was no longer the right provision for him as they no longer could meet his needs and manage his behaviours as they were not a specialised ASD school. As most of the other students have hearing difficulties and communicated with BSL and Makaton, he was becoming extremely alienated from his peers, as communicating with them was extremely difficult.

After a number of school TAC meetings that were attended by several professionals, including the local authority EHCP coordinator, it was agreed that an alternative provision was urgently needed. The TAC was held towards the end of 2021 with the hope that the new provision could be found and he could start by Easter 2022.

The LA then requested that we do extensive research and compile a list of schools we would like to be considered for consultation. This was far from an easy task as it comprised of us looking through the section 41 included list and excluded list of schools, trying to ascertain which would be most suitable. I would have thought it was the duty of the local authority to research and provide a shortlist of which schools might be appropriate, but we were given no assistance.

Unfortunately, most of the schools that we were able to find were either not the right type of provision, too far away or were unable to undertake a consultation as they were full.

Through intensive research and speaking to parents of children that attend, one such provision, an independent special school that has many students with a similar need to our son, was added to our list. They are also located quite close to where we live so transportation would be quite easy. Even though they seemed to be an ideal contender, they were unable to liaise with the LA during the consultation stage as they were at maximum capacity and in high demand. They are not a section 41-approved school, unfortunately.

As no appropriate school had been found by Easter 2022, the LA’s EHCP coordinator contacted us to advise that a new independent ASD specialised school was opening soon and that it might be worth contacting them to see if they were able to enter the consultation.

This new school was part of a larger group of special schools. The school was given a copy of his EHCP and contacted his current school. It was then followed by a home visit to assess him at home to meet him.

Everything looked extremely promising as they agreed they were exactly the type of special school he required and they could meet his needs. It was almost like a eureka moment that came with huge relief. We thought our problems had been solved until they went to the panel at the LA. The panel deemed that this school was not appropriate as there was a locally maintained special school that could meet his needs.

We had already expressed during his transition from primary school to Secondary school that this particular school was unacceptable due to various factors. The LA at the time had chosen this school, and we had to start a tier 1 appeal and start tribunal proceedings in order for his current provision. The LA backed down a week before the tribunal and awarded our school choice. We also needed to fight for transport, but this was also awarded in the end.It is hard to believe that we are in the same situation with the same school, with the LA naming this school against our wishes. The school in question visited our son’s current school so that they could make an assessment of their ability to meet his needs. They then corresponded to the LA/panel in writing with their findings.

We fully understand that the cost of the provision, including transport, is extremely high and that the LA have the duty to protect the public purse, but it was the LA that recommended that we contact this school in the first place. This provision wasn’t on the list that we submitted to the LA as it is between a 45-minute and an hour taxi ride from home, so we considered the cost of transport the LA would need to cover. Even if the LA can meet the cost of the school fees, we are not in a financial position to meet the transportation costs, and the LA are aware of this but has taken no notice.

We both work full time and have two other children, including another with needs and an EHCP, so we are unable to take our son to and from Leatherhead each day or afford transport with or without an escort. We have exhausted all our avenues and don’t know what to do.

What responsibilities do the LA have?If the LA has the power to overrule a School's decision, could they force an independent, non-section 41 school to accept a pupil even if they are full or at least make an assessment?

IPSEA Answers:

The duty to name a school within an EHCP lies with the LA. Although the LA must consult with a school before making a decision, the final decision lies with the LA and the school can be overruled if the LA does not agree with the school’s views.

As a parent, you have a right to request specific types of schools are named in your child’s EHCP. These are set out in section 38(3) of the Children and Families Act 2014 (“CAFA”) as follows:

(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).

If you request one of these types of placements is named in the EHCP, then the LA can only refuse if one of the following reasons applies as set out in s39(4) CAFA:

(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.

Before making a decision, the LA must consult with the placement. However, the LA makes the final decision to name a placement and, if a placement is named in an EHCP, then it must admit the child (s43 CAFA).

However, this does not apply to wholly independent schools (only independent schools approved under s41 – find an explanation of different types of schools here). Wholly independent schools must agree to be named in an EHCP; the LA can not overrule the school in this case. To have a wholly independent school named in an EHCP, in addition to the school agreeing to be named, you would also need to evidence that either the school is the only school which can meet needs or the placement there would not be incompatible with the efficient use of resources (I.e. the placement would not cost significantly more than other suitable options).

The next route now to change the school placement would be to appeal the contents of the EHCP to the SEND Tribunal if you still have a right of appeal (2 months from the date of the final EHCP or 1 month from mediation certificate – whichever is later). IPSEA would always recommend appealing sections B (SEN) and F (special educational provision) in addition to section I, as B and F should lead to an appropriate school placement and it is imperative that these are specific and quantified. Before submitting your appeal, you must consider mediation and obtain a mediation certificate, but it is your decision whether to partake in mediation or not. However, in your case, it may be worthwhile to mediate as it would give you an opportunity to discuss with the LA the reasons why the named school was deemed inappropriate last time and ask for reasons why it has been considered suitable this time.