Successfully Securing A Specialist, Residential Placement For A Young Person With SEND
The Law Of… Failing To Follow SEND Protocols
After their daughter attended a specialist, residential college for young people with special educational needs (SEN) for 2 years, Mary and Allan Robertson were horrified to discover that the Local Authority planned to abruptly end her 3-year placement.
Gregg Burrough, specialist Education Law solicitor, explains how with his help the Robertsons saved their daughter Anna's place, allowing her to finish her education.
Threatening To End Anna's Placement
Anna has autism, special educational needs, and epilepsy. She has an Education, Health and Care Plan (EHCP) and is attending St Piers Specialist College in Surrey, an independent college, on a residential basis for 38 weeks per year.
The initial decision to fund Anna's place at the college was due to her educational and social needs, but she also has epilepsy and autism. Due to the severity of her condition, it was common for Anna to receive injuries following epileptic convulsions, which included a dislocated shoulder.
After Anna had completed 2 years of her 3-year course, the Local Authority (LA) – Waltham Forest Council – informed her college that they intended to amend Anna's EHCP by withdrawing her funding. It also said that a local provision would be found for her instead.
Anna's parents, however, weren't made aware of this decision and didn't receive a right of appeal.
On top of this, a statutory review of Anna's EHCP hadn't taken place since it was first issued, and the LA had not contacted the Robertsons to discuss their and Anna's views, feelings and wishes on the matter.
Failing To Support Anna's Needs
Left in utter dismay, Mr and Mrs Robertson decided to make a Stage 1 and then a Stage 2 complaint to Waltham Forest Council about how it had mishandled the funding application for Anna to continue at the specialist college.
As part of their complaint, Mary and Allan argued that the LA had:
- Inaccurately represented the views of Anna's college by claiming that the placement had met her needs and that she wouldn't achieve anything further. They pointed out that the college had supported Anna staying on for a third year, and that they had evidence of this.
- Failed to inform them or Anna about the decision made to end her funding.
- Failed to speak to them about Anna returning home on a full-time basis.
- Failed to provide information about the alternative local provision that would be proposed for Anna.
- Not followed the Council's own guidance about the need to plan for a transition in a timely manner.
They also urged the LA to take swift action to secure Anna's place at the college for the next academic year for 2 reasons:
- Making Anna leave the college before she had achieved her outcomes would negatively impact her future.
- Although Anna would leave the college one day, Mary and Allan reminded the LA that this should only take place once a transition plan was in place.
Anna's parents weren't alone in their view that it was better for her learning, development and wellbeing to stay at the college.
Experts such as Anna's neurologist agreed she should continue her placement and her teacher voiced concerns over how her condition was affecting her education at a High Needs Placement review.
Determined to find out what the LA's plans for Anna were, Mary and Allan asked to see the package the LA had claimed was being put together for Anna. Unfortunately, all they were given was a brief outline of what the provision might be, rather than definite answers.
Seeking Advice From SENDIASS
Scared about what would happen to Anna, Mary and Allan contacted SENDIASS (Special Educational Needs and Disabilities Information Advice and Support Service) about the situation, which then contacted the LA on their behalf.
Through the SENDIASS officer, Mary and Allan asked the LA to confirm in writing that amendments to an EHCP must be made in line with the Children and Families Act 2014 and SEND Code 2015. Both of which have strict rules on involving the families of children and young people with SEND in the process of making changes to EHCPs. It was also made clear that Mary and Allan would appeal against the LA's actions to the SEND Tribunal if it was to go ahead and make changes without their input.
Following this, Waltham Forest Council responded to the complaint placed by Mary and Allan. It claimed that it had enough information to prove that Anna's needs could be met in her local area rather than at the residential college. For this reason, it wasn't going to fund Anna's placement for another year, and was instead going to look at other options for her.
Turning To An Education Law Expert
Anxious about the uncertainty over Anna's future and desperate for answers, Mr and Mrs Robertson sought legal advice and assistance from Gregg, who specialises in Education Law.
In particular, they asked Gregg for advice on:
- The options they had for securing Anna's placement at St Piers College
- How long this process would take, as well as how long the EHCP review and appeal would take
- Whether permission for a Judicial Review could be lodged and what would happen to Anna whilst this was taking place
Gregg carefully reviewed the details of the case and found that whilst the LA hadn't explicitly said it was going to amend Anna's EHCP, it had stated that it was going to reconsider its position on whether Anna's needs could be met via a local provision.
Gregg explained that as the LA believed that Anna could be educated locally, if it chose to amend a placement in Anna's EHCP then this would take effect immediately. But, the LA would still have to amend the EHCP through an Annual Review, with a right to appeal.
He knew that acting swiftly in this case could be the key to saving Anna's place at the college, so Gregg drafted a comprehensive advice letter for Mary and Allan that explained the LA should:
- Hold an Annual Review for Anna
- Provide clarity on whether Anna's placement would be changed and what provision would be put in place
He also recommended that they should make an appeal against the LA.
Successfully Saving Anna's Place At The College
Confident in Gregg's knowledge of the law and experience, Mr and Mrs Robertson asked him to contact the LA on their behalf.
Gregg got in touch with the LA, outlining how it had not acted in line with the SEND Code of Practice 2015 and the Children and Families Act 2014. He pointed out how it had failed to undertake an Annual Review of Anna's EHCP during the statutory timescales.
On this basis, Gregg pointed out that Anna should stay at St Piers College until the LA followed the correct process. He also highlighted that as Anna's needs had not been met, proven by evidence from experts, and as the LA hadn't found a suitable placement for her, Anna should be allowed to complete her third year at the college.
Following Gregg's intervention, Waltham Forest Council acknowledged in writing that it hadn't followed the correct process, including failing to tell Mary and Allan they had a right to appeal.
It also confirmed that Anna's funding would continue and she could stay at the college for a third year to finish her studies.
Mary explains how Gregg's invaluable expertise and support with the case led to a positive outcome for Anna:
"Mr Burrough's expertise in SEND issues proved to be exactly what I needed when the application to my local authority for a further year at a specialist residential college for my daughter hit major problems."
"After months of escalating frustration and stress it was a huge relief to make contact with Mr Burrough who really impressed me with both his grasp of the relevant legislation and how it applied in my daughter's case."
"One detailed and authoritative letter to the local authority, which left officials there in doubt of the gravity of the situation and the robust steps that would be taken if the authority continued to act outside the legislative framework, proved to be exactly what was needed to draw the case to a speedy and successful conclusion."
Gregg offers advice to parents who find themselves in a similar situation:
"I was really pleased that Anna was able to stay within a setting that promoted and supported her needs, especially since getting specialist placements can be tough."
"From the beginning, it was clear that the Local Authority had not followed the correct procedures, which ultimately placed the future of a young, vulnerable person with SEND in great jeopardy."
"It's important for parents or carers to keep detailed records of any conversations you have with the Local Authority and anyone else involved with your child as well as any documentation you receive. This will prove to be invaluable if your LA fails to work to the set procedures and you're making an appeal."
"If you find yourself in a similar situation or want to find out whether you can make an appeal to the SEND Tribunal, I can review your case and assist you throughout the process."