Does a SEND Child Need a Waking Day Curriculum?
When making an appeal to the Special Educational Needs and Disability (SEND) First-Tier Tribunal for a residential school placement, a point which is often in dispute is whether the child or young person’s needs require a ‘Waking Day Curriculum’.
I’d like to highlight the issue through of a recent case of mine where this was dealt with by the First-Tier SEND Tribunal.
If you need any help with a First-Tier SEND Tribunal get in touch with our Education Solicitors as soon as possible.
Education or Social Care Need?
The battle between whether or not a child/young person’s need is an education or social care need is key. It directly impacts on what provisions and what school placement they obtain. It’s particularly significant when making an appeal for a residential placement. A waking day curriculum, as the phrase suggests, means that a child needs to be educated across all of of their waking hours.
The Facts of the Case
The case in question was an appeal for a placement at a residential school to be named in the case of a child with complex needs. The Local Authority had refused to name the residential placement in the Education, Health and Care Plan (EHCP), on the basis that there was a nearer suitable day school placement available and that extra support could be obtained from the Council’s social services department.
The Local Authority argued that to name the parents’ preference would be an inefficient use of resources, as the day school and social services package combined was a significantly cheaper option.
I argued that the day placement wasn’t suitable and that due to the nature of the child’s educational needs, they required a Waking Day Curriculum and not social care support.
What Did the First-Tier SEND Tribunal Consider?
The Tribunal had to consider whether or not the child’s needs were educational or social care needs, and whether a Waking Day Curriculum was required. The case turned on this and was determined on the basis of ‘suitability’.
The Tribunal agreed that the parents’ preference of placement was suitable and the Local Authority’s was not as it couldn’t provide a Waking Day Curriculum which they determined was required. They therefore ordered that the child should attend an independent special school, for 52 weeks a year.
Given that the annual cost of the placement was a large six figure sum, the case was very hard-fought by the Local Authority.
Some appeals for a residential placement aren’t determined on suitability as the First-Tier SEND Tribunal might be convinced that the parents’ and Local Authority’s preference of placements might both be suitable. If this happens, the Tribunal will then consider costs for the placement and whether or not naming the parents’ preference would be an inefficient use of resources.
What’s taken into account in determining whether a placement is an ‘inefficient use of resources’?
If the Tribunal is of the view that both the parents and the Local Authority’s placement can meet needs, it looks at the cost of each. Importantly, this must also consider other relevant costs to the public purse such as home to school transport, therapies and social care.
Due to how expensive residential school placements are, it’s often the case then when you first consider the costs, that it would be hard to imagine that the parents’ preference of placement wouldn’t be an inefficient use of resources.
However, as Education Solicitors we often find the social care package provided by the Local Authority isn’t sufficient. Also having expertise in social care law, we’re often able to get this increased.
As well as the obvious benefits (extra help for the the family is up to the Tribunal decision), this also helps close the costs gap between the Local Authority and parents’ prefererred placements. An increase in social care provision means an increase in costs to the Local Authority, which wouldn’t be incurred if the child was in a residential school placement or only incurred if, for example, during school holidays if the child/young person returned home then.
In my appeal, I challenged the (as is often the case completely inadequate) social care provision offered to the family, and the Local Authority responded by increasing the package they would provide. This increased the overall costs for the Local Authority’s preferred placement.
I submitted a cost schedule to the Tribunal which showed that actually the social provision had helped closed the gap between the placements and that the Local Authority’s preference of placement and in fact the Local Authority’s placement was looking to be more expensive than the parents’.
If this appeal had been determined on costs instead of suitability, the parents would have still been successful, because as a result of the increased social care, the parents’ preference would not have been an inefficient use of resources.
Obtaining a residential school placement isn’t easy. They’re expensive and Local Authorities tend to not want to provide them. Showing that a Waking Day Curriculum is required, or increasing the costs of the Local Authority’s preferred option sufficiently are the only ways to do it.
Simpson Millar Can Help You
If you're worried that your child doesn’t have the right provisions/placement named in their EHCP to meet their needs, you don’t need to fight them alone. Our expert team of Education Solicitors and specialist Lawyers are friendly and understanding, and can help you get the right education provision your child requires.
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