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• 27 Oct 2024

• Other

  Other

  Can't answer yes or no.:

  What school told you

  Schools sometimes use euphemisms (e.g. we’re not the most appropriate). What they probably mean by this is that there’s an issue re the rules in SEND Code of Practice (in paragraph 9.79). The paragraph is about your preference of school and says that:

  …the local authority must comply with that preference and name the school or college in the EHC plan unless:

  • It would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
  • The attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources

  School said not compatible with your son's needs - which could mean they are worried about either bold point (or both).

   

  Why school might be saying that (1): Money

  The funding the LA have provided might not cover the cost of your child's place + the 1:1 that they have to provide.

  Therefore, the school might say that they can't meet needs because it's incompatible with the efficient education of others to take funding intended for other pupils to provide your son's 1:1.

  The school might have asked the LA about this by calling up the SEN team and asking about it. School might have been told that a review is needed to change funding. Alternatively, they might be going straight to a review. Both situations happen.

  This might only be happening because the school are using the review as the only way to request funding that matches the cost of your child's education.

  In this case, it probably doesn't matter much where you stand legally as this is a disagreement that school and LA will probably sort out between themselves. Stay calm, listen carefully an let them sort it out between themselves.

   

  Why school might be saying that (2): A surprising thing in the EHCP

  Does the EHCP say that special school shouldn't have certain types of SEND pupils in the class with your son? That's unusual to have in an EHCP - but it looks like it was requested and agreed by your tribunal hearing.

  Whether this is possible depends on the school's size, curriculum and age of the child. But broadly speaking, getting this written into an EHCP might have been an own goal.

  Scenario 1: In Years 7 - 9, SLD pupils are more likely to be taught in a primary style with a main class teacher (for maths, English, travel training etc) and then a few subject teachers (e.g. PE, Forest School). It might be easier to accommodate such unusual requests as it’s the same class but with some different teachers. That said, the EHCP still created difficulties for your school (e.g. if we have a special visitor, if we follow the EHCP, we can’t bring two classes together because the next door class has a child who stims).

  Scenario 2: The pupils reach Y10 and there are more pathways (e.g. optional subjects). Pupils from different classes mix for option subjects. How can the school put your son in the classes that he wants if there are other children who do stim who also want to do that subject? The contract (i.e. EHCP) that now binds the council and school prohibits them from doing so.

  In a school that has SLD pupils, it's likely that there are plenty of pupils who stim. They aren't all the most complex pupils, but they're often amongst the more complex.

  • Let's assume that there are enough pupils for 2 classes of one particular option (e.g. cooking). Does the school put all the children who stim in one class so your son is not with them? Or would a school normally mix the groups so that there is a mix of complexity in each class?
  • Let's assume that there aren't enough pupils for 2 classes of one particular option. Does the school prevent other pupils from having their choice because the EHCP says your son can't be in a classroom environment with them?

  What would happen if one of the other pupils had an EHCP that said that pupil shouldn't be with children like your son. How about if three of the other pupils have EHCPs that say the pupil shouldn't be with your son? How does that make you feel as a parent?

  You might be able to start to see why a special school might be uncomfortable with the consequences of your tribunal outcome.

  Remember, as Sean notes, it’s a legal obligation to keep your child out of classrooms that have children who stim (See link in Sean’s answer - 08.22).

  The ‘no stimming pupils’ rule that, on first glance, might seem to help your son’s sensory regulation, might be impossible to operationalise.

  Sometimes, specificity is not a friend.

   

  Other points in terms of how you prepare

  • Consider going to the meeting with a willingness to compromise on what the school might view as a discriminatory statement in an EHCP.
  • I agree with Sean – take someone along. I’d add to his comments by noting that each local area has a SEND Information, Advice and Support Service. They’re free. Find them by Googling “<Name of your local council> SENDIASS.” They have the advantage of knowing more about the school and being able to read the EHCP and tribunal outcome. Sometimes they know the school & SENCo so can pick up the phone and chat with them (and so find out more about the school’s motivation prior to the meeting). A school might likely to be guarded if contacted by a lawyer before the meeting – and so might be less forthcoming with helpful information. What you decide (lawyer, SENDIASS, neither) is a weighing up exercise with pros and cons of each option.

  

  Aaron King
  9000 Lives SEND Consultancy

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• 26 Oct 2024

• Other

  Other

  Other ...:

  SG,

  From what I gather, you sought assistance from the First-tier Tribunal (FtT), leading to amendments to your son's EHCP, and a new version was issued following the Tribunal’s order. 

  I understandably don’t have all the details relating to your case, but I will attempt to provide some pointers.

  Now, it appears there is a claim that the placement your son currently attends—a maintained special school—is not “the most appropriate provision for him.” The interpretation of "appropriate" was recently discussed in the Upper Tribunal, a further discussion on this point will not be particularly helpful here. What seems more challenging to understand is the assertion that it is not the “most” appropriate provision. The reason for highlighting this is that it lacks clarity and obvious relevance. To my knowledge—and I am open to correction—there is no legal requirement for a placement to be the “most appropriate” for a child. 

  It is worth noting that your son's EHCP was recently examined by the FtT with input from both you and the Local Authority (LA) so on the face of it you need to ask yourself what has changed? It seems you may think that nothing has.

  Further, as you’re likely aware, Section B of the EHCp identifies special educational needs, Section F specifies the special educational provision required to meet these needs, and the placement—in your son’s case—must be suitable for his age, aptitude, and special educational needs. This generally means that the school has in place (or can implement, with additional support from the LA) the necessary special educational provision. 

  The “Noddy Guide” contains several sections you may find useful, but I would advise not confining yourself solely to the following:

  07.05 Does Section F have to tie in with Section B?

   

   08.22 Is the duty on the LA to secure the provision in Section F absolute?

   

   08.25 Can Section F make it the school’s responsibility to fund provision?

  It seems the school is arranging a review meeting, and your first priority may well be to insist on examining your son's EHCP to ensure that all special educational provision specified, quantified and detailed in section F is in place. Further, if the school expresses a to withdraw your son’s placement without your consent, you should be aware that this may constitute an unlawful exclusion, which can be challenged. I say this because, in the information given, it is not clear that the criteria for a lawful exclusion have been met. That said, the upcoming meeting might also provide an opportunity to secure additional funding from the LA to enhance the special educational provision put in place for your son. Often, insufficient funding of necessary special educational provision is a key reason schools wish children to move on. While I cannot comment specifically on your situation, in cases like these, obtaining additional funding for special educational provision (which should always be detailed in Section F) falls under the LA's remit rather than the school’s.

  There are several issues here, and while I have provided some general guidance, I have not given legal advice. I would strongly recommend that you obtain some direct legal advice if you can and consider finding an advocate who could accompany you to the meeting. Clearly, this is a stressful situation.

  I hope this is helpful, and I encourage others to contribute if they feel it would be of assistance.

  Sean Kennedy.

  

  Sean Kennedy
  Talem Law

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