Negotiations with the Local Authority will often be about the cost of providing support for your child. It's useful to know what money is actually involved. If you can show your preferred solution is cost-effective, you will have a stronger case if you go to appeal.
The additional cost to the Local Authority may include things like extra provision in school, such as teacher assistant time; fees at a private school; and travel costs.
This section has generalised case studies, which will give you some idea of what things cost. Every case is different, though, and you are advised to get individual advice about the costs that apply to your case.
The costs incurred by schools and local authorities in meeting your child's needs may well be argued over, and become an element in any appeal you make to the First-tier Tribunal (SENDIST) - so you need to have thought them through.
Appeal against a refusal to secure an EHC assessment.
The Local Authority has refused to secure an EHC Needs Assessment on the grounds that the school has not spent £6,000 from its delegated budget on meeting the needs of your child.
In this case the actual cost isn't in fact an issue. Although schools are normally expected to have spent at least £6,000 on your child before considering an EHC assessment, this is not a legal requirement. What matters is the legal test: whether your child may have special educational needs and may require an EHC plan.
The question is this: is your child likely to need more provision or different provision than most children of the same age, because of their special educational needs? If so, then an EHC assessment should be carried out, and you should ask the Local Authority to do so.
Appeal against a refusal to issue an EHC plan
The Local Authority has assessed my child and agrees that he/she has special educational needs, but states that these can be met through the resources of the school.
The key issue is whether an EHC plan is 'necessary'. If your child's school already has the resources to support your child, paid from their normal SEN budget, the Local Authority will not need to spend extra money. If you think the school can't meet your child's needs without extra funding, you will need to be able to argue this.
You will need to show, hopefully in partnership with your child's school, that your child's needs can't be met by the school.
Find out exactly what provision your child does get. Most Local Authorities now expect schools seeking an EHC assessment for a pupil to supply a costed Provision Map which shows exactly what the school is providing from their delegated SEN budget. The Provision Map should detail the type, level and frequency of the additional input the school (or others) are providing. If your child hasn't got a Provision Map, then ask the school to provide one.
At the same time, ask if your child's needs go beyond the resources which are available to the school. The school may not have sufficient funding to cover support. Ask the school what their SEN budget is, how many pupils are on the SEN register and how many have EHC plans. This may give you evidence that the school is having to deal with many demands on their SEN budget, and that more provision is needed for your child.
You can also ask whether the provision being made for your child would still be available if another child with a high level of special educational needs was to join the school. If another child with SEN was to join the school the support they are currently providing for your child under SEN support might have to be reduced.
Appeal against the contents of your child's EHC plan.
There are two aspects about costs with this type of appeal: the cost of making the provision as set out in Section F and the cost of the school placement.
Sections B (needs) and F (provision) of your child's EHC plan must be written for your individual child and without consideration of cost. It is only after Sections B and F are resolved that the school placement in Section I should be considered (including transport costs if necessary).
Appeal against a refusal of a request for a mainstream school in general (i.e. without naming a particular school)
My Local Authority says that it would be too expensive for my child to be educated in a mainstream school.
Where a parent is asking only for 'mainstream', the cost of provision cannot be used as a reason for refusing a placement. A refusal can only be made if your child joining the school would impact on the efficient education of other pupils, in a way that cannot be managed, and that any barriers cannot reasonably be removed. These are the only exceptions the Local Authority can use to refuse a parental request for a mainstream placement.
Appeal against a refusal of a request for a particular mainstream school
My Local Authority says that it will name my choice of mainstream school as long as I provide the transport.
It is quite common for Local Authorities to request that the parent must provide transport if the the child's home is not in the desired school's catchment area (also, see 'transport' below). In this type of appeal, the Local Authority has to show that the nearer school can, in reality, meet your child's needs. The Local Authority must consult with the school and the school must agree that the school can meet your child's needs.
You may feel there is a good reason why the nearer school is inappropriate (for example, the school the Local Authority is proposing does not have any experience in meeting the needs of children with your child's condition/diagnosis, or there may be particular environmental factors - such as the school being very large with several levels and your child has physical needs and you have evidence to show that your child requires a school where the classrooms are all on one level).
You cannot appeal to the First-tier Tribunal directly to obtain transport, but you can appeal to have your choice of school named outright. If the cost of transport is quite low, it will be difficult for the Local Authority to argue that the school of your parental preference is an 'inefficient use of resources'.
I wanted an independent school named in my son's EHC plan, but the Local Authority says his needs can be met in mainstream.
In this situation, the First-tier Tribunal, at the hearing of your appeal, would look at whether or not the Local Authority has a school which can meet your son's needs. If the Tribunal decides that both the Local Authority's school and the parent's school can meet needs, it will then look at the cost difference between the two schools. The Local Authority will be required to name a mainstream school other than try to suggest that 'any' mainstream school will be an appropriate placement for your child. In both cases, close attention must be paid to the contents of Section F (Special Educational Provision) of the EHC plan.
There is an additional argument that can be made which is known as the 'balancing act' argument. If the cost differential is not huge (for example, case law has suggested a difference of £4,000) you need to argue that the additional educational benefits to your child obtained through attending the school of your choice justifies the additional cost.
If Section F is well-written (i.e. with quantified and specified provision) it should be straightforward to calculate costs.
For mainstream schools, the school is likely to have an agreement with the Local Authority that the school provides a certain amount of funding from their delegated SEN budget (often the first £6,000 or 10 hours of Teaching Assistant support per week). Some schools keep very good records of provision (through costed Provision Maps) but not all schools do this.
You need to try to calculate the costs involved in regard to a placement in a mainstream school compared with the independent school.
Some costs to consider (depending on the provision specified in Section F):
The cost to the Local Authority of sending your child to an 'ordinary' independent school is usually the fees and the cost of the transport
Appeal against a refusal of a request for an independent special school.
I want an independent special school named in my daughter's EHC plan but the Local Authority says his/her needs can be met at a local state special school.
Some independent schools are 'Section 41' schools - they are on a government-approved list. If the independent school you want is a 'Section 41' school the Local Authority must name it unless they can argue that the placement would be an 'inefficient use of resources' - i.e. unreasonably expensive. In this type of appeal the onus is on the Local Authority to prove that your daughter's needs can be met in the local special school.
If the independent school is not a 'Section 41' school, you will need to:
Special schools placements are in the region of £10,000 per pupil. However, your child may have specialist needs which means the school will need 'top up' funding to be provided by the Local Authority. You will need to ask the Local Authority and/or the school what 'top-up' funding will be provided. You will also need to take into account the cost of transport.
N.B. If the Local Authority special school is 'place funded' (i.e. a number of spaces are pre-paid) and there are spare places, the Local Authority can argue there is 'nil cost' to a child's placement at the school.
Appeal against a refusal of a request for a residential special school
You are seeking a residential placement in a residential special school and the Local Authority has named a local special school.
If the residential school is a Section 41 school, then the Local Authority has to show:
If the independent residential school is not a Section 41 school, then the onus is on you as the parent, to show that:
As you are very unlikely to be able to show that the school of your choice is less expensive than the Local Authority's school, you will need to concentrate on showing why the school named by the the Local Authority is unable to meet your child's needs. Again, you will need to look very carefully at the contents of Sections B and F in your child's EHC plan.
This type of appeal can be quite complex and you are strongly advised to seek advice from one of the Helplines in the Resources section about your specific circumstances.
In addition to comparing cost of provision (as above), you may also consider:
Transport costs can be important when appealing for both mainstream and independent placement. The Local Authority can only charge additional costs so, for example, where existing transport is in place, and there is a spare place on the minibus or taxi. the cost will be the total cost divided by the number of pupils being transported to the school. You could also suggest that you will transport your child if the Local Authority pays you a fuel allowance.
Factors that need to be considered (if relevant to your circumstances):
While the Local Authority should produce a breakdown of costs, including transport, as part of the Local Authority's 'Response' during the appeal process, do not rely on this. Instead you are advised to make a formal request (copied to the First-tier Tribunal) to the Local Authority to produce the costs of transport - usually a taxi. This will give you the opportunity to ask other questions.
If the Local Authority just gives the total cost of the taxi, as explained above, you can ask if there are other pupils sharing the taxi. In which case, the cost should be divided between the number of children in the taxi.
Will your child need transport to the school named by the Local Authority? It is always worth checking the transport costs. Get a quote from a local taxi firm. While the school might be nearer to you, the journey (at rush hour) might take a long time leading to a higher cost. This is always worth exploring.
Where the Local Authority states that your child lives too close to the school to be eligible for free transport, the legal question is: can your child be reasonably expected to walk to school? Your child may be outside the usual rules for how far pupils are expected to walk and therefore 'eligible' for transport by the Local Authority. Sometimes their transport policy may suggest otherwise, but you can still argue your case.
There are other factors involved in whether your child can reach the school without transport assistance, such as whether you work, or have children in other schools which are in different direction/same start times. Children who are entitled to Free School Meals may also be exempt from the '2-3 mile rule', which is the normal limit on whether transport is provided.
In addition, depending on the age and needs of your child, can your child travel by bus or is there a tube or train journey they could manage? These options are mentioned as this can make a huge difference to the costs involved when seeking a particular placement.
Finally, and only if this is possible, you can ask for the school of your preference to be named in Section I on the basis that you, as parents, will be responsible for providing transport.
Appeal against a refusal of a request for a named mainstream school
You have expressed your parental preference for your child to be placed in a particular mainstream (or academy) school and the Local Authority's view is that there is a nearer mainstream (or academy) school that can meet your child's needs and therefore they will name the school of your preference on the understanding that you assume responsibility for providing transport to and from the school.
In this type of appeal, the legal 'onus' or responsibility is on the Local Authority to show that the nearer school can actually meet your child's needs. You may feel that there is a good reason why the nearer school is inappropriate (for example, the school the local authority is proposing does not have any experience in meeting the needs of children with your child's condition/diagnosis, or it may be too large or on many levels).
You need to consider all the points above about transport costs, and whether you are willing and able to meet the costs of transport or provide it yourself, which is a very considerable commitment.