11 minute read
SEN LAW
What you need to know about Secondary School Transfers
Douglas Silas looks at what the law says about Secondary Transfers for pupils with SEN.
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At this time of year, Local Authorities (LAs) amend Education, Health and Care Plans (EHCPs) of children in Year 6 with SEN to name a secondary school for them from September. So in this issue, I am going to provide an overview of what the law says about ’Secondary Transfers’.
What is the general law about ‘Secondary Transfers’ for children with SEN?
Parents of children with SEN who are transferring to secondary school are asked to express a preference for a secondary school at the same time as parents of children without SEN. This is by the end of October of Year 6. There is usually a standard form to complete (although many applications are now done online). Parents are asked to name three or more schools, in order of preference. It is sometimes possible to apply for a place under a school’s ‘medical and social needs’ criteria, but not all schools have one. Some schools also require a ’supplementary information’ form to be completed, where parents can also refer to their child’s SEN.
In any event, secondary school places are sent out on 1 March. If parents are unhappy, they can lodge an admissions appeal, using the relevant processes documented by their preferred
school. They can provide further evidence during the appeal process. If your child has specific medical or social needs related to SEN, it’s important that you provide up-to-date evidence to show why the school you are requesting will be able to meet those needs.
What is the law in relation to children with EHCPs?
An EHCP must be reviewed and amended in sufficient time prior to a child moving to secondary school. Reviews and amendments must be completed by a legal deadline of 15th February in Year 6, and LAs must amend children’s EHCPs to name their secondary school from September of that year. The law surrounding secondary school transfers for children with EHCPs can be quite complicated, depending on the situation which parents find themselves in. For example, the LA may name a local maintained special school, whereas parents want a local maintained mainstream school or academy, with
additional support or therapy, or sometimes a non-maintained or independent, more specialist special school.
On the other hand (and more commonly), the LA may name a local maintained mainstream school or academy, whereas parents want a local maintained special school, or a nonmaintained or an independent special school.
Does the LA have to name a preferred placement?
EHCPs must record in Section I the type of school to be attended by the child, and preferably also the name of a specific school. If a child’s parent makes a request for a particular secondary school, the LA must comply with that preference and name the school in the EHCP, unless it would be unsuitable for the age, ability, aptitude or SEN of the child/young person, or the attendance of the child/young person there would be incompatible with the efficient education of others or the efficient use of resources.
However, LA’s only have to comply with preferences in relation to to maintained nursery schools/schools, academies and free schools, non-maintained special schools and any independent school or specialist college which has been approved by the Secretary of State.
So, as is often the case with law, the answer is therefore always both “yes” and “no”! “Yes” because, if it is one of the types of school listed above, the LA are usually required to name it, provided it complies with the provisos also described above. But if the desired school is not in the above list, or if it falls within the exceptions, the answer is “no”.
So, in a nutshell, what does the law say?
Right to Mainstream Inclusion
The theory is that every child, no matter their SEN, has a right to be educated inclusively in a mainstream school. Where parents want mainstream education and it would not be incompatible with the efficient education of others, the LA has a duty to secure that provision. Where a parent does not make a request for a particular school, or does so and their request is not met, the LA must specify mainstream provision in the EHCP, unless it would be against the wishes of the parent or young person, or incompatible with the efficient education of others
Refusal of Mainstream Inclusion
Mainstream education cannot be refused by a LA on the grounds that it is not ‘suitable’. A LA (or school) can only rely
About the author
Specialist SEN solicitor Douglas Silas is the Managing Director of Douglas Silas Solicitors.
SpecialEducationalNeeds.co.uk
@douglassilas @douglassilas
on the exception of incompatibility with the efficient education of others, if it can show that there are no ‘reasonable steps’ it could take to prevent that incompatibility.
The Right to a Denominational School
The LA should consider very carefully a request from a parent for a denominational school, but denominational considerations cannot override the requirements of the law.
Requests for A Particular School or Other Institution
The child’s parent has the right to request a particular school to be named in their EHC plan. Maintained schools, academies, free schools, non-maintained special schools and ‘section 41’ schools can all be requested.
If a child’s parent makes a request for a particular school in these groups, the LA must comply with that preference unless it would be unsuitable for the age, ability, aptitude or SEN of the child, 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.
The child’s parents may also make representations for independent schools that are not approved and the LA must still consider their request, but the LA is not under the same legal duty to name the provider and are only obliged to keep in mind that children should be educated in accordance with their parents’ wishes, so long as this is compatible with the provision of efficient instruction and training and does not mean ‘unreasonable public expenditure’.
Can parents of children with EHCPs appeal for a different school?
Sometimes parents do not get the LA to name their preferred school at first. Although there are other ways of resolving disagreement (such as mediation), it is common for parents to now bring an appeal to the SEND Tribunal seeking an alternative school, which they must do within 2 months of the issue of the EHCP.
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Report proves destructive impact of lockdown learning on SEND pupils
The past year of lockdowns and distance learning has been incredibly harmful to both families and young people.
A recent study has painted a concerning picture of teachers and professionals struggling to support pupils and their families during the ongoing COVID-19 pandemic. It is unrealistic for all pupils to attend special schools and colleges during lockdown, which is suggested by government guidance put out earlier this year.
Key findings
In-school provision
Places were severely limited during the first national lockdown, with only around a third of pupils being offered places at special schools due to staffing issues and unclear guidance. Places that were offered were often not full-time, and services required to get pupils to school were disrupted.
Additionally, almost all providers (98%) said that their pupils could not or would not adhere to social distancing rules, either through a lack of understanding or because they needed close personal care.
Support available from health, care and social services
Lack of health care was another mayor problem, especially during the first lockdown. Health and social care services were diminished or stopped entirely. School staff were left trying to fill the gaps left by these closures for families who desperately needed it. According to the research, 83% of pupils at home and 65% of pupils attending school or college got little to no healthcare support during lockdown. For social care, 77% of pupils at home and 57% of pupils attending school or college got either no or only a small amount of support, including respite care and home help.
Support at home
Remote learning was almost impossible to provide for pupils of special schools and colleges who had to learn at home for health reasons. Approximately one in every three of these families had to deal with limited computer access or functionality, and their additional needs severely limited the students’ ability to engage with online classes or instruction.
Many pupils needed all of their home learning materials individually produced to meet their specific needs, and parents needed guidance and equipment to help their child learn at home. This meant that home-schooled pupils needed an incredible amount of resources.
Personal experiences
Anxiety and mental health issues also plagued families with children that had to be taught and supported at home. Caregivers
■ IT problems can prevent students from learning
reported increased stress, anxiety and mental health issues, which affected their ability to help and care for their child with special needs.
Caregivers reported that the first national lockdown led to a loss of skills and abilities (such as communication and mobility) in their children and increased behavioural and mental health issues. Caregivers worried that this was likely to impact on their future life chances. School and college leaders were also concerned about the long-term effects of the lockdown on pupils and families. The research took place between June and August last year, hearing from 200 special school and college leaders and 500 parents whose children usually attend these settings.
Recommendations
The report set out ten recommended actions to get more pupils back into their school or college safely, to better support those who are at home and to help their families.
Amy Skipp, Director of ASK Research, who led the project, said: “This research shows a worrying situation that has not been wellmanaged by Government. The national policy has shown little understanding or regard for pupils with SEND and their families. Lessons desperately need to be learnt, and fast, or we are in danger of failing these potentially vulnerable families. Policymakers need to pay urgent attention to our recommendations.”
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