Does my child have to be enrolled on a course to receive special educational provision?
My son has an EHCP finalised in August 2017 which was reissued in November 2017. He has been diagnosed with Aspergers, has been out of education since 2015. He isn't enrolled at any college as none can offer a suitable course.
He is now 17 but suffers from extreme anxiety so can't actually face the classroom setting. I have enrolled him on an online GCSE course to resit 3 Science exams. A local College is willing to work with him voluntarily but can't enrol him as no suitable course, if everything works out they would offer him A-levels next September.
He needs the support of an adult to help him with travelling into lessons. I have funded some sessions but cannot maintain this long term, the LA have agreed to fund 10 hours per week during term time. However, he needs to be enrolled somewhere before they will fund this. Without this support, he will never get back into education but can't get it until he's enrolled somewhere so it would appear we are in a vicious circle. Could the enrollment online be used? If he doesn't get support as soon as possible he won't be able to sit exams in May which will cause further problems. His whole wellbeing is declining fast. We have had nothing provided by the LA to date.
It is not necessary for a child or young person to be enrolled on a course or on the roll or register of a school or institution in order for the LA to provide special educational provision. Section 61 of the Children and Families Act 2014 deals with this:
“(1) A local authority in England may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school or post-16 institution or a place at which relevant early years education is provided.
(2) An authority may do so only if satisfied that it would be inappropriate for the provision to be made in a school or post-16 institution or at such a place.
(3) Before doing so, the authority must consult the child’s parent or the young person.”
The question to be asked under s.61 (2) is whether or not education in a school would be “inappropriate”. The case of TM v London Borough of Hounslow  EWCA Civ 859 confirmed that to answer that question, all the circumstances of the case must be looked at. These will include: “…without giving any exhaustive list... the child’s background and medical history; the particular educational needs of the child; the facilities that can be provided by a school; the facilities that could be provided other than in a school; the comparative cost of the possible alternatives to the child’s educational provisions; the child’s reaction to education provisions, either at a school or elsewhere; the parents’ wishes; and any other particular circumstances.”
From what you have said it should be possible to make the argument that it would not be appropriate for your son to be educated in school or post-16 institution and that whilst he requires special educational provision to be made under an EHC Plan, this must be education otherwise than at school as envisaged by s.61 of the Act.
It is also possible that enrolment on an online GCSE course could be part of the special educational provision that your son requires and therefore specified in section F of his EHC plan.
When the LA issued the amended EHC plan they should have informed you that you have a right of appeal to the Special Educational Needs and Disability Tribunal and about the requirement for you to obtain a mediation certificate before appealing, as well as contact details of the mediation provider. The deadline for appealing is two months from the LA’s letter or one month from the date of the mediation certificate, whichever is the later. It is possible to have an appeal registered out of time in certain circumstances and we would suggest that you ring the Tribunal to enquire about this.