I have received my 19 year old son's final EHCP and although I requested a Performing Arts specialist college, they have named a local mainstream college with a specialist provision which they say he could access. My son has Down's syndrome and is an excellent dancer - he has even won a competition and appeared on TV.

I have contacted the mediation service detailed on the letter and they have said I should go straight to Tribunal - please advise.

IPSEA Answers

Firstly, it is important to note that because your son is nineteen he is regarded under special educational needs legislation as a young person. This is the case for those who are over compulsory school age – i.e. those who have finished the school year in which they turn 16 years old.

At that point the Children and Families Act 2014 gives these young people their own rights to make decisions about their education under that Act. and they must be included in all decisions and correspondence in their own right unless they lack mental capacity to make a particular decision.  Mental capacity will be assumed unless it can be shown that the young person does not have the capacity to make the decision in question.

If a young person does  lack mental capacity to make a decision on their own, then an 'alternative person' can make that decision for them.  Under the Children and Families Act the young person’s parents will automatically be assumed to be that 'alternative person unless the Court of Protection has appointed a Deputy.

Where a young person has mental capacity to make decisions, their parent can still be involved in helping them to make them, and the local authority should continue to involve them in any discussions they have with the young person if that's what the young person wants.

To bring an appeal against the EHC plan to the SEND Tribunal here, the appropriate young person appeal form must be used Here is a link to the form:

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=4725

There is the option of the young person signing the form themselves or the parent signing it for them as their alternative person where the young person lacks mental capacity.

Where a parent or young person wants a place at an independent specialist college they cannot make a request in the same way that they can for maintained schools and colleges. What they can do is make their views and wishes known by ‘making representations’ for that placement, and the LA must consider their wishes.

Unfortunately, it is not unusual for LAs to refuse to name independent schools or colleges and they usually rely on the fact that it will represent unreasonable public expenditure.

Case law suggests that if the cost differential of placements at a maintained school or college and an independent one is less than about £11,5000 per year, that would not necessarily be regarded as ‘unreasonable public expenditure’.

It is not always possible to show that the cost difference between an independent school or college and a maintained one is not significant but that doesn’t necessarily mean that an appeal will be unsuccessful. Costs are only relevant if both schools or colleges are suitable. If there is something about the provision the child/young person requires which cannot be provided by the LA named setting, then the Tribunal may well accept that the independent placement should be named as it is the only one which can meet all the child/young person’s needs.

The Tribunal hearing is an evidence-based process, so it will clearly be helpful if you have supporting evidence from professional sources that support the need for provision that is available at the preferred college, but might not be available at the LA’s maintained provision.

The EHC plan itself is also a key part of the evidence, so it becomes particularly important that the Section B of the EHC plan should set out all of your son’s SEN and that Section F specifies (and quantifies) all of the special educational provision that is necessary.

So if there are particular features of provision available at your preferred college, you would need to ensure that your son’s need for this provision, and the provision itself, are set out within the EHC plan, if necessary by suggesting and asking for the inclusion of specific wording.

It is not necessary to consider mediation before appealing if the appeal is only against section I – the name of the school or college. If you told the mediator that you want to appeal against the named college and didn’t make reference to sections B and F this may be why you were advised to go straight to appeal. However, as I have explained above, it will be important to appeal against sections B and F of the plan and that means that it will be necessary to obtain a mediation certificate first.