I’ve visited the local secondary school, which is the school we want our son to attend. Our son has Down’s Syndrome, and the head made it clear that he does not want him. He says that the school cannot meet our son’s needs. At our meeting with the local authority officer to discuss the draft education health and care plan, she said it would not be in our son’s best interests to force the school to take him and perhaps a special school would be better, but we do believe that he thrives best in a mainstream setting. And, just as important as his formal education, we want him to grow up in, and as part of, his local community. Expand If you feel that the head teacher of a school is less than enthusiastic about your child attending his school, remember that his views will not necessarily be shared by those members of the school staff who will actually be working with your child. The local authority (“LA”) must consult the school you name as your preference, but the final decision is made by the LA, not by the school. And, once a school is named on the education, health and care (“EHC”) plan, it must admit your child. This is set out in section 43 of the Children and Families Act (“CAFA”) 2014. You should inform the LA that this school is the one you want naming and you expect them to formally consult the school. When naming a school on a EHC plan, the LA must comply with the parent‘s preference unless the LA can prove: the school parents want is unsuitable to the child’s age, ability or aptitude and his special educational needs; their attendance will be incompatible with the efficient education of children with whom they would be educated; or their attendance will be incompatible with the efficient use of resource These criteria are set out in section 39(4) CAFA 2014. When an LA rejects a parent’s preference for a school they must be able to show which of the above conditions would be met if your child were to attend that school. These are the only conditions the LA can rely on. When parents want mainstream education and the LA is able to show that one of the above conditions apply, the LA must go on to apply an additional test. At this stage, ‘suitability’ cannot be used as a reason to deny a child or young person mainstream education. The LA must be able to show that: Their attendance is incompatible with the efficient education of other children with whom they would be educated with; and there are no reasonable steps the LA or the school can take to remove the incompatibility. This is set out in section 33 CAFA 2014. It may seem strange that ‘suitability’ is not a legal consideration. However, the idea behind this is if Section F of the EHC plan details all of the specialist help a child or young person needs then arguably, they can have their needs met in any mainstream school. See the section on the right to mainstream for more information. If that doesn’t work When an LA decide not to name a parent‘s school of preference on a EHC plan parents can appeal to the First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”) once the EHC plan is finalised. It is advisable to appeal against Sections B and F, as well as Section I (which names the school). The deadline for appealing is two months from the date of the decision or one month from the date of the mediation certificate, whichever date falls the latest. You can find out more about appealing to the SEND Tribunal here. The question of suitability concerning mainstream education has been considered by the courts, who have confirmed that it is very difficult for an LA to refuse a child a mainstream school place. You can find cases on the right to mainstream education in our case law section. The onus is on the LA to prove why your son cannot attend the school of your preference. If you appeal and the LA fail to convince the Tribunal, you will get the school you want.
We’ve received the draft education, health and care plan and have found a maintained special school we really like for our son. At our meeting with the local authority, we expressed a preference for this school, but we were told we’d be wasting our time as it is in a neighbouring local authority who has said that the school is full. Expand Parents or young people have a right to make a request for: A maintained nursery or school; An Academy; A Further Education college; A non-maintained special school; or A Section 41 school or college. (See the section on types of schools for more information.) Because you are asking for a maintained school, your own Local Authority (“LA”) is under a legal duty to place your son in the school of your preference, provided that: it is suitable to his age, ability or aptitude and his special educational needs; his attendance there will not be incompatible with the provision of efficient education for other children; or the efficient use of the LA’s resources. These conditions are set out in section 39(4) of the Children and Families Act (“CAFA”) 2014. There is no definition in law of what it means for a school to be ‘full’. LAs are able to name schools which say they are ‘full’ in EHC plans and must do so unless they are able to prove the child’s attendance is incompatible with the efficient education of others. In order to refuse to name a school, the LA has to show that because of the high numbers of pupils in the school, the child’s needs won’t be met, or that other children’s needs would not be met, or that there would be an inefficient use of resources (for example, as a result of them having to appoint another teacher or build another classroom). This is the law, regardless of which LA is responsible for the school you prefer. As you have expressed a preference for this school, your LA must consult the governing body of the school as well as the neighbouring LA (because the school you want is maintained by that LA) (section 39(2) CAFA 2014). After this consultation, the decision has to be made by your LA – not the school itself or the neighbouring LA. The first step is to write to your own LA reminding them that they (and no-one else) has the duty in law to make the decision. You can use our model letter to do this. If you are unhappy with the reply you receive to this letter, and the LA go ahead and finalise the EHC plan without naming the school of your preference, you will be able to appeal to the First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”). It is advisable to appeal against Sections B and F, as well as Section I (which names the school). The deadline for appealing is two months from the date of the decision or one month from the date of the mediation certificate, whichever date falls the latest. You can find out more about appealing to the SEND Tribunal here. The question of when a LA can refuse to name a school in an EHC plan has been considered by the courts, who have confirmed that parents or young people have strong rights to name a school or college of the types listed above. You can find cases on the right to a particular school in our case law section.
I want a special school placement, and my local authority will only consult with certain special schools who have put in tenders as part of its procurement process – they say these are ‘Framework Schools’ and they are the only ones I can request. What can I do? Expand Some local authorities (“LAs”) devise a list of certain schools which they will consult with when a parent or young person requests that a special school is named in Section I of the EHC Plan. However, remember that when a parent or young person makes a request for any of the schools or institutions specified in section 38(3) of the Children and Families Act (“CAFA”) 2014, the LA must consult the school or institution (section 39(2) CAFA 2014). It can’t refuse to consult on the basis that the school or institution is not on their procurement list. It is also worth remembering the overall time limits for the EHC plan process. The LA must issue the finalised EHC plan within 20 weeks of the initial request for the EHC needs assessment. Delaying any consultation with the requested school will potentially mean that the LA misses this time limit and it will not be lawful for it to extend this time limit on the basis that it has not made a decision about something in the EHC plan (including what school should be named). If your LA refuses to consult a school or institution you have made a request for under section 38(3), you can use our model letter to complain.
We have received the draft education, health and care plan and all the professional advice. We have been told that we can express a preference for a school but believe our son needs intensive special help of the kind which can only be provided in a specialist independent school for autistic pupils. But we’ve been told that we can’t express a preference for an independent school and the LA intend to name one of their own special schools. What can we do? Expand In law, local authorities (“LAs”) must have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. This is set out in section 9 of the Education Act 1996, and also in paragraph 9.84 of the SEN and Disability Code of Practice. While you do not have a right to request an independent school, this does not mean that you cannot ask for and argue for a place at an independent school which is not on the above list. However, the onus is on you to prove that none of the schools the LA is offering can meet your child’s needs, or that placing your child in that school will not constitute unreasonable public expenditure – and that, therefore, they must place your child in the independent school. Additionally, you must have an offer of a place from the independent school. Within 15 days of receiving the draft EHC plan, you can ask for a meeting with the LA and/or make written representations about the EHC plan. Either in writing or at the meeting, you should explain that you want the independent school named in Section I of the final EHC plan and why. You should also explain why you do not believe that the schools the LA can offer can meet your child’s special educational needs (“SEN”) or that placing your child in the school will not be an unreasonable cost to the public purse. If you can convince them of this, then they may consider an independent school. It may be that the professional advice gives you the evidence you need to prove that your child’s needs cannot be met by any school the LA can offer him. If not, you might have to consider getting a second professional opinion. If that doesn’t work If you are unable to persuade the LA at the draft EHC plan stage to name the independent school you want, then you will have to consider appealing to the First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”) when the EHC plan is finalised. It is advisable to appeal against Sections B and F, as well as Section I (which names the school). The deadline for appealing is two months from the date of the decision or one month from the date of the mediation certificate, whichever date falls the latest. You can find more information about appealing to the SEND Tribunal here. For more information, see the section on asking for an independent setting in choosing a school or college when you have an EHC plan.
Our daughter has an education, health and care plan but we wish to educate her at home. She misses a lot of school because of health needs and we think that it would be better for her to be educated at home. Does the local authority have to help us with this? Expand Section 7 of the Education Act 1996 places a duty on every parent of a child of school age to ensure that they receive efficient full time education suitable to their age, ability and aptitude, and to any special educational needs (“SEN”) they may have. However, a parent can fulfil this duty either by sending their child to school or, ‘otherwise’ – which includes a parent educating their own child at home. Electing to educate a child at home is a significant commitment so it is important to fully explore your options before committing to it. Some parents choose to home educate because this is how they want their children to be educated. Others home educate because of unmet needs or a breakdown in placement. Where it is the latter, there are other options available and it is important to get advice. Local authorities (“LAs”) have the power to take legal action against parents who fail to ensure that their children are educated when, for example, children do not attend school regularly (or at all) and when parents make inadequate (or no) arrangements for their education at home. Although LAs have the power to provide support to parents who are home educating their children they cannot be compelled to arrange special educational provision if you choose to home educate. So if, for example, your daughter’s EHC plan specifies that she should have weekly speech and language therapy, although you can ask that the LA continue to arrange this part of the special educational provision, you cannot insist that they do so. Your decision in respect of home educating needs to be made with this in mind. The position is different for children who cannot attend school because of illness. In this situation, the LA must provide education. It is also possible for special educational provision to be provided ‘otherwise than in a setting’ in circumstances where it is deemed inappropriate for the provision to be delivered in a school (section 61 of the Children and Families Act 2014). This is often referred to as ‘education otherwise’. If this happened, the LA would be under a legal duty to make sure the provision specified in Section F of the EHC plan was provided even though your daughter would be at home. This would need specifying in the EHC plan and it would be important for you to obtain advice about this in advance as her EHC plan would need amending to specify this arrangement. However, if you still feel that home education (rather than education otherwise) is the right course, the first step, then, is to write to the school and explain that you intend to make arrangements for your daughter’s education at home. At the same time you should write to the LA and ask them to amend Section I of the EHC plan in order to record that she is being educated at home. If your daughter currently attends a special school, you will need to write to the LA (not the school) to get their agreement to take her off the school roll. If she is at any other type of school, you do not need the permission of either the school or the LA. See our section on elective home education and education otherwise for more information. If that doesn’t work If the LA refuse to amend the EHC plan, you can still educate your daughter at home electively. If your daughter attends a special school and the LA refuse to agree to take her off the school roll, you should book an appointment with us for advice. LAs have a duty to prosecute parents when they believe that they are failing to ensure that their children are receiving an appropriate education. It is unlikely to happen, but if you are threatened with prosecution you will need legal advice from a solicitor.
There is a school named in my daughter’s EHC plan, but over the last few months she has become incredibly anxious and has started school refusing. She has now missed a significant amount of time. What can we do? Expand When a child has been refusing to attend school and their behaviour and/or anxiety appears to be worsening both at school and at home, it is important to seek help as soon as possible. There are a number of different issues to deal with. As a first step, you should take your daughter to your GP and explain what has been happening. If the GP (or any medical/mental health professional) feels that she isn‘t currently fit to attend school, ask for a letter to the local authority (“LA”) to be provided, explaining this. Evidence of this type would provide a documented explanation for her non-attendance. The GP should refer her to the Child and Adolescent Mental Health Service (known as CAMHS). Getting temporary education put in place You should write to the local authority (“LA”) and request they provide alternative education for her whilst she is out of school for mental health reasons. The LA have a legal duty to provide suitable education for children of compulsory school age who are out of school “by reason of illness, exclusion from school or otherwise”, under section 19 Education Act 1996. This education should be full-time unless, for reasons relating to her physical or mental health, it would not be in her best interests for full-time education to be provided. There is statutory guidance for LAs entitled ‘Ensuring a good education for children who cannot attend school because of health needs’. Full-time education is not defined in law, but the guidance states it should equate to what the pupil would normally have in school. It also states that LAs should provide such education as soon as it is clear that the child will be away from school for 15 days or more, whether consecutive or cumulative. They should liaise with appropriate medical professionals to ensure minimal delay in arranging appropriate provision for the child. They should not: Have policies based upon the percentage of time a child is able to attend school rather than whether the child is receiving a suitable education during that attendanc Have lists of health conditions which dictate whether or not they will arrange education for children or inflexible policies which result in children going without suitable full-time education (or as much education as their health condition allows them to participate in). It is unlawful to withhold or reduce the provision, or type of provision, for a child because of how much it will cost. Therefore, LAs must not have policies that limit a child’s education to a specified number of hours per week due to cost or availability. There is no absolute legal deadline by which LAs must have started to provide education for children with additional health needs. However, the guidance says LAs should arrange provision as soon as it is clear that an absence will last more than 15 days and it should do so at the latest by the sixth day of the absence, aiming to do so by the first day of absence. This should hopefully mean she will not miss out on any more education whilst she is out of school. Amending the EHC plan to get the right support in place Clearly, the support currently in place through your daughter’s EHC plan is not sufficient, as she has been unable to attend school. It may be that she needs more support, or she may need to attend a different school entirely. You could ask for an emergency review of the EHC plan so that it can be amended. Alternatively, if you think more information is needed about your daughter’s special educational needs (“SEN”), you could consider asking for a reassessment. This is because her EHC plan does not include her mental health needs or provision to meet those needs. It will be important for the EHC plan to be updated to include this information. You should tell the LA about the threatened Attendance Order and ask them, in these circumstances, to reach a decision about a re-assessment as a matter of urgency rather than waiting the full 15 days. If you want, you could also ask for an emergency placement to be arranged for your daughter in a special school for the purposes of a reassessment. There is guidance for schools from the Department for Education entitled ‘Mental health and behaviour in schools: departmental guidance for school staff’. This contains guidance on what schools should be doing to identify and support pupils with mental health issues. If the LA refuse your request for a re-assessment, you have the right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”). Threats of prosecution for missed schooling If the school, or the LA, suggests that you could be served with an Attendance Order or prosecuted as a result of your daughter missing school, you should update them about your daughter’s mental health and explain that she has SEN. Suggest to them that serving an Attendance Order in these circumstances would be premature and inappropriate; and what is needed is co-ordinated action by support agencies to identify and make provision for all of your daughter’s needs. Hopefully, once everyone involved realises that your daughter’s non-attendance is to do with her SEN rather than with you deliberately keeping her away from school, the decision to reassess will be taken quickly and the threat of issuing an Attendance Order will be withdrawn. If the LA continue with the threat of serving an Attendance Order, or actually serve it, you will need to speak to a solicitor who is familiar with education law.
We have been told that LAs are not allowed to fund special school places for young people aged 19 or over. Is this correct? IPSEA does not believe this is correct; however, your local authority is likely to be basing their position on a piece of government guidance. Expand IPSEA does not believe this is correct; however, your local authority is likely to be basing their position on a piece of government guidance, which we do not believe accurately reflects the law. We have prepared a detailed briefing explaining why we believe the guidance is incorrect. If a school is not registered for students aged 19 or over, it will need to apply to the Department for Education either to extend its registration, or for individual permission for the student in question.