There is a school named in my daughter’s EHC plan, but over the last few months she has become incredibly anxious and is too anxious to attend school some days. She has now missed a significant amount of time. What can we do? Expand When a child is unable to attend school due to mental health challenges such as anxiety, 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 able to attend school, ask for a letter to the local authority (LA) to be provided, explaining this. This will mean your LA has a formal letter explaining why she cannot go to school. The GP should also refer her to the Child and Adolescent Mental Health Service (known as CAMHS). Getting temporary education put in place You should write to your LA and request it provides alternative education for her whilst she is out of school for mental health reasons. We have a template letter you can use to help you make this request. Your LA has 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 of the 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 called ‘Arranging education for children who cannot attend school because of health needs’. ‘Full-time education’ is not defined in law, but the guidance says on page 9 that children with health needs should have provision, where possible, which is the same as the education they would receive in a mainstream school. Any part-time education should be reviewed regularly, with the aim of eventually increasing the number of hours up to full-time as soon as the child’s health allows. 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 those days follow on from each other or over time total at least 15 days. They should speak with appropriate medical professionals to ensure minimal delay in arranging appropriate provision for the child. LAs 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 attendance. 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 Your daughter being unable to attend school may indicate that the support currently in place through her EHC plan is not sufficient. 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. If 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 your 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 your LA refuses your request for a re-assessment, you have the right to appeal to the SEND Tribunal. Threats of prosecution for missed schooling If the school, or your 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 your LA continues with the threat of serving an Attendance Order, or actually serve it, you will need to speak to a criminal solicitor who is familiar with education cases.
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 Every parent of a child of compulsory school age must make sure that they receive an efficient full-time education suitable to their age, ability and aptitude, and to any special educational needs (SEN) they may have. This is a legal duty found in section 7 of the Education Act 1996. Parents can meet this duty either by sending their child to school or, ‘otherwise’ – which includes a parent educating their own child at home. Choosing 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 and where this is the case, there are other options available, so it is important to get advice. Local authorities (LAs) can take legal action against parents who fail to make sure 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, LAs do not have to arrange special educational provision if you choose to home educate. If your LA decides you have made ‘suitable alternative arrangements’ for your daughter’s education then this means it would not be obliged to provide any of the special educational provision set out in her EHC plan. 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 her special educational provision, you cannot insist that it does 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, your 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’ or ‘EOTAS’. If this happened, your 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. Section I of your daughter’s EHC plan would be blank, and section F would need to detail all the special educational provision she requires. You should get advice about this in advance as her EHC plan would need amending to set out this arrangement. However, if you still feel that elective home education (rather than education otherwise) is right for your child, you should: 1. Write to the school and explain that you intend to make arrangements for your daughter’s education at home. 2. At the same time you should write to the LA and ask it to amend section I of the EHC plan to remove the name of her current school. 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 your LA refuses to amend the EHC plan If your LA refuses to amend the EHC plan, you can still educate your daughter at home electively. If your daughter attends a special school and the LA refuses 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 the LA believes that parents are failing to make sure 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 criminal solicitor who is familiar with education cases.
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 which can only be provided in a specialist independent school for autistic pupils. This school is a fully independent school, but we’ve been told that we can’t express a preference for an independent school and the LA intends to name one of its 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 Code. You should firstly check the school is definitely a fully independent school, because there are different types of independent school and the type will affect which area of the law applies to your request. Further information about this, and how to check a school’s type, can be found on our page about different types of schools. Parents have a right to request most types of school other than fully independent schools, as explained on our choosing a school/ college with an EHC plan page. While this right does not apply to fully independent schools you can still ask and argue for a place at a fully independent school. You will need an offer of a place from the school. You will need to prove to your LA that you have an offer of a place, and 1. none of the schools your LA is offering can meet your child’s needs, or 2. if one of the schools your LA is offering can also meet your child’s needs, that the cost of placing your child in your preferred school will not be unreasonable public expenditure, and that, therefore, your LA must place your child in the independent school. Within 15 days of receiving the draft EHC plan, you can require a meeting with the LA and/or ask for changes or make comments on 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), using any professional advice you have which shows that, or that placing your child in the school will not be an unreasonable cost to the public purse. If you can convince your LA of this, and you have a placement offer from the school, then your LA may consider your request for an independent school. If your LA refuses to name the independent school If you are unable to persuade your LA at the draft EHC plan stage to name the independent school you want, then you will have to consider appealing to the SEND Tribunal when the EHC plan is finalised. You may need to appeal sections B (needs) and F (provision), as well as section I (which names the school). If you decide to appeal sections B, F and I the deadline for appealing is two months from the date on the decision letter enclosing the final EHC plan or one month from the date on the mediation certificate, whichever date falls the latest. If you decide to just appeal section I you will have two months from the date on that letter to appeal because you do not need a mediation certificate for that type of appeal. You can find more information about appealing to the SEND Tribunal here. For more information, see our pages on asking for an independent setting in choosing a school or college when you have an EHC plan.
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) use 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, when a parent or young person makes a request for any of the schools or institutions listed in section 38(3) of the Children and Families Act (CFA) 2014, the LA must consult the school or institution (this is set out in section 39(2) CFA 2014). You can read more about requesting a section 38(3) CFA 2014 setting on our website. Your LA can’t refuse to consult on the basis that the school or institution is not on its procurement list. It is also worth remembering the overall time limits for the EHC plan process. Your 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 your LA misses this time limit. It will not be lawful for your LA to extend this time limit because 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) CFA 2014, you can take action.
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 an institution in the Further Education sector, such as a Further Education college a non-maintained special school, or a Section 41 school or college. Please see our page on the different types of schools for more information on this, along with guidance on how to check a school’s type. 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 his attendance there will not be incompatible with the efficient use of your LA’s resources. These conditions are set out in section 39(4) of the Children and Families Act (CFA) 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. Case law has made clear this is a high test for an LA to meet. Instead of refusing to name the school simply because it is ‘full’, your LA has to show how adding just one more child (your child) to the school will mean the other children’s education would be less than efficient in quality. 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) (this is set out in section 39(2) CAA 2014). After this consultation, the decision has to be made by your home LA – not the school itself or the neighbouring LA. The first step is to write to your own LA reminding it that the ‘home’ LA (and no-one else) has the duty in law to make the decision. You can use our template letter to do this. If you are unhappy with the reply you receive to this letter, and your LA finalises the EHC plan without naming the school of your preference, you will be able to appeal to the SEND Tribunal. You may need to appeal sections B (needs) and F (provision), as well as section I (which names the school). If you appeal sections B, F and I, the deadline for appealing is two months from the date on the letter enclosing the final EHC plan or one month from the date on the mediation certificate, whichever date falls the latest. If you appeal just section I you need to appeal within two months from the date on that letter, because you do not need a mediation certificate for that type of appeal. You can find out more about appealing to the SEND Tribunal on our website. The question of when an 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’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 to attend. 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 their school, remember that their views will not necessarily be shared by those members of the school staff who will actually be working with your child. Your local authority (LA) must consult the school you request as your preference, but the final decision on whether to name it in the final education, health and care (EHC) plan is made by your LA, not by the school. And, once a school (other than a fully independent school) is named in the EHC plan, it must admit your child. This is set out in section 43 of the Children and Families Act (CFA) 2014. You should inform your LA that this school is the one you want naming and you expect it to formally consult the school. When naming a school in a EHC plan, your LA must comply with your preference unless your LA can prove: the school you want is unsuitable to your child’s age, ability or aptitude, or his special educational needs his attendance will be incompatible with the efficient education of children with whom he would be educated, or his attendance will be incompatible with the efficient use of resources. These reasons are set out in section 39(4) CFA 2014. When an LA rejects a parent’s preference for a school it 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 your LA can rely on. When parents want a 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 CFA 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. Please see our page on the right to mainstream for more information. If your LA refuses to name your preferred school When an LA decides not to name a parent‘s school of preference in a EHC plan, parents can appeal to the SEND Tribunal once the EHC plan is finalised. You may need to appeal against sections B (needs) and F (provision), as well as section I (which names the school). If you appeal sections B, F and I, the deadline for appealing is two months from the date on the letter enclosing the final EHC plan or one month from the date on the mediation certificate, whichever date falls the latest. If you appeal just section I you need to appeal within two months from the date on that letter, because you do not need a mediation certificate for that type of appeal. You can find out more about appealing to the SEND Tribunal on our website. 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. Your LA will need to prove why your son cannot attend the school of your preference. If you appeal and your LA fails to convince the SEND Tribunal, the SEND Tribunal will order your LA to name the school you want.