“He’s been out of school for nearly two years. He should be about to start secondary school, and I don’t know where to send him.”
This is how Mrs S, mother to H, a 10 year old diagnosed with autism and social, emotional and mental health (SEMH) needs, summarised her situation, when we first spoke.
It’s a surprisingly common situation. A child with more ‘subtle’ special educational needs (SEN), such as communication difficulties or SEMH needs will often initially be sent to a mainstream school placement. If their additional needs are not sufficiently addressed and catered for, and without the correct support, their needs will often worsen, resulting in the child lashing out.
Children with SEN can quickly become labelled ‘challenging’ or ‘difficult’.
In Mrs S’s case, her son had gone through several ‘placement breakdowns’ throughout his primary school education, and had had numerous fixed-term exclusions, even at the young age of 6 or 7 years old.
After one placement breakdown, Mrs S started educating her son at home, as what she believed to be an interim measure while she awaited the outcome of an Education, Health and Care Needs Assessment by her Local Authority (LA), to determine if H needed an EHCP.
But when the EHCP was finalised in April 2020, Mrs S was surprised to see that in Section I, which should name an educational placement, the LA had named ‘Elective Home Education’ as her son’s ‘type’ of education.
Not knowing what to do, Mrs S informed the LA she disagreed with it, and that she wanted him in an educational setting, not at home. She continued looking for suitable schools.
In the autumn term of 2020, there should have been an Annual Review for the phase transfer process, as her son was at the age where he would soon start at secondary school. But no such review was called, and it was not clear what was being done by the LA to find him a secondary school place, despite Mrs S suggesting multiple placements.
Sending a Letter Before Action After the Phase Transfer Deadline
When Mrs S came to us in February 2021, the Local Authority had already breached what is known as the Phase Transfer deadline – the deadline for the Local Authority to amend the child’s EHCP and name a new placement, when there is due to be a transition between primary and secondary school.
For children with an EHCP, the Phase Transfer deadline is 15 February each year.
Under the supervision of Education Solicitor Esther Salter, I helped Mrs S send a Letter Before Action to the Local Authority, threatening Judicial Review for their failure to meet this statutory deadline.
We set out that Mrs S had already been liaising with a number of potential schools, and that one in particular had said it could meet H’s needs, and could offer him a school place.
It was a special school, with small class sizes and on-site speech and language therapists, which cater to children with autism, many of whom have social, emotional and mental health needs, in addition to their communication and sensory needs.
Although it is a special school, it is not for students who are significantly cognitively impaired, and pupils have the chance to get a range of qualifications including Functional Skills, BTECs and GCSEs.
Preferred Special School Placement Secured in Just Over a Week
The LA immediately engaged with this letter, and confirmed that they would liaise with the schools proposed in our Letter Before Action. 8 days later, the EHCP was amended to name the family’s preferred placement.
Mrs S is extremely happy with this outcome, and glad to see her son back in a setting that understands and caters for his needs, and can provide a similar peer-group of cognitively able children with additional needs, in a small, nurturing environment.
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