Please note that all guidance in relation to education is based on laws and guidelines in relation to England. If you live in Wales, N. Ireland of Scotland please find the relevant Sen Code of Practice in my blogroll on the RHS of the page.
A child with SEN may be receiving an education at an alternative provision for a variety of reasons. The child may have been permanently excluded, informally excluded (which is illegal) or be waiting for a suitable SEN provision to become available to name just a few.
In addition the parent’s of a child that has previously been home educated may have informed the council that they no longer wish to home educate their child. This may be because the child has expressed a desire to return to school or because they no longer feel that home education is sufficiently meeting their child’s needs. Where responsibility lies for the child’s education in this scenario is not readily available which may provide a grey area. However I have found information on the Government Ombudsmen’s webpage that appears to clear this up.
“When councils have concerns about a child’s education or, as in this case, are alerted to a family who no longer wish to home school, they have a duty to ensure those educational needs are met.’ council duties to home schooled children
It is also worth noting that during the period of home education the LA should annually review the child’s statement or EHCP and state on that statement/EHCP a suitable provision for the child to attend should, I presume, the child wish to return to education.
p.g 215 (10.32) In cases where the EHC plan gives the name of a school or type of school where the child will be educated and the parents decide to educate at home, the local authority is not under a duty to make the special educational provision set out in the plan provided it is satisfied that the arrangements made by the parents are suitable. The local authority must review the plan annually to assure itself that the provision set out in it continues to be appropriate and that the child’s SEN continue to be met (see Chapter 9). Where the local authority has decided that the provision is appropriate, it should amend the plan to name the type of school that would be suitable but state that parents have made their own arrangements under Section 7 of the Education Act 1996.SEN Code of Practice
Alternative provision for a child can be commissioned by schools or by the council. In some cases, if the cost of the alternative provision cannot be met by the schools SEN budget or by the child’s EHC plan funding, then the council should provide top up funding. But what should parents be expecting from that alternative provision with regard to hours and any special education needs that the child may have.
Hours and SEN
According to the SEN Code of Practice 2015
p.g. 216 (10.39) Local authorities must make arrangements where, for any reason, a child of compulsory school age would not otherwise receive suitable education. Suitable education means efficient education suitable to a child or young person’s age, ability and aptitude and to any SEN he or she may have. This education must be full time, unless the local authority determines that, for reasons relating to the physical or mental health of the child, a reduced level of education would be in the child’s best interests.
p.g. 216 (10.40) Where this education is arranged elsewhere than at a school it is commonly referred to as alternative provision. Alternative provision includes pupil referral units, alternative provision academies and alternative provision free schools. Local authorities must have regard to statutory guidance on alternative provision and on the education of children unable to attend school because of health needs. This guidance specifies that the education provided should be on a par with mainstream schools.
p.g. 216 (10.41) Local authorities, schools and post-16 education providers may commission alternative provision for other children and young people who face barriers to participation in mainstream education or training.
p.g. 217 (10.42) Alternative provision must be arranged in line with a child or young person’s EHC plan. Local authorities may need to amend a plan where, for example, a child or young person is no longer attending the institution named on it. They should also consider whether the EHC plan needs to be reviewed to ensure that the child or young person’s SEN will be appropriately supported. Where alternative provision is specified in a child or young person’s EHC plan the local authority must arrange that provision.
p.g. 217 (10.43) Where a child or young person in alternative provision has SEN that are not specified in an EHC plan then the alternative provider should employ a graduated response to these needs.
p.g. 217 (10.44) The support that will be provided for children and young people with SEN, with or without an EHC plan, should be agreed as part of the commissioning process. To allow for continuity of support, mainstream and alternative providers should promptly share appropriate information on a child or young person’s SEN. Commissioners of alternative provision should ensure that there is a clear plan for pupils’ progression and keep the arrangements under regular review so that they can be adapted in response to the needs of the child or young person. Where an alternative provider has concerns that a child or young person may have SEN that are not being appropriately supported then they should raise their concerns with the commissioner and agree how these potential needs will be assessed and supported.
p.g. 217 (10.45) Alternative provision includes providers of online learning. Whilst it will not be appropriate in every case, online learning can offer certain benefits where there are significant barriers to a child or young person physically attending an educational institution. For example, online learning can provide for real-time teaching support, allow access to a broader curriculum and offer opportunities for students to interact with each other. Decisions on whether to arrange online learning are for the local authority or institution commissioning the provision to make, although they should take into account the views of professionals, parents or carers and the child or young person.
p.g. 217 (10.46) In making this decision, commissioners should give particular consideration to the support that will be provided for children or young people’s SEN, as well as their social, emotional and physical development. Where feasible, online learning should be accompanied by opportunities for face-to-face contact with peers. Any decision to use online learning from a child or young person’s own home should include an assessment of his or her suitability for independent learning and home
What if your child still has a statement?
What if your child is transferring from a statement to an EHC plan?
p.g. 15 (x) SEN code of practice 2015 If your child still has a statement there is a statutory transitional order accompanied by transitional guidance, to facilitate the transfer of those with statements to EHC plans. They ensure that during the transition period local authorities must continue to comply with elements of the Education Act 1996 in relation to children with statements.
p.g. 7 (2.2) Transition to new SEN & Disability system There is a transition period during which children and young people with statements of SEN and young people who receive support as a result of an LDA will – where they meet the criteria for an EHC plan – be transferred over to the new arrangements. To help ensure these children and young people continue to receive the support they need, and to maintain their rights and protections, transitional arrangements are in place. The Transitional and Saving Pkrovisions Order 2014 maintains during the transitional phase elements of the 1996 Act and the 2000 Act, relating to statements of SEN and LDAs respectively.
p.g. 22 (5.6) To transfer a child or young person from a statement of SEN to an EHC plan, a local authority must undertake a Transfer Review. This will require them to undertake an EHC needs assessment under section 36 of the 2014 Act. The Transfer Review will allow for outcomes to be developed for inclusion in an EHC plan and provision identified to support the child or young person to achieve those outcomes. Until the Transfer Review is completed the local authority will remain under a duty to maintain the statement of SEN and arrange the special educational provision set out in the statement.
What can you do if you do not feel that the council are fulfilling their duty with regard to alternative provision.
In the first instance you need to make a formal complaint to your local council to allow them the chance to put things right. If your complaint is not dealt with to your satisfaction you can then complain to your Local Government Ombudsman. Please read all of the Local Governments Ombudsman page about how to complain very carefully and read all of the links contained within the page because there are a lot of caveats regarding what types of complaints the Local Government Ombudsman will or won’t investigate. making a complaint
In some cases you may be able to take your local authority to Judicial Review but you would need to appoint a solicitor to do this for you.
If you have the available finances or you are eligible for legal aid it may be beneficial to appoint a specialised SEN solicitor to guide you through the process as soon as you begin experiencing difficulties.
The following solicitors specialise in SEN but you would need to contact them directly in order to ensure if they accept legal aid. Also I cannot guarantee the quality of these services.
For advice on suitable strategies within education please visit Videos 6, 7, 8 and 9 by Neville Starnes, Education and handling strategies by Phil Christie, National Autistic Society – PDA Educational Strategies and Education booklet by Positive PDA