Case Study – Specialist Residential placement and provision secured for young person with highly complex needs.
X is now 10 years old, he has highly complex needs, and a mixed cognitive profile. X has attachment disorder, significant sensory processing difficulties, emotional dysregulation and specific learning needs including traits of dyslexia and dysgraphia. There is also a high likelihood of further underlying undiagnosed needs, which a number of professionals have recommended X be assessed to establish if X has Foetal Alcohol Syndrome Disorder.
From birth, X encountered severe disruption, which has continued throughout his early years in the form of a series of traumatic, and extreme personal circumstances. His mother was a substance misuser during pregnancy; later on, he was taken into foster care, after suffering emotional harm and neglect. This severely affected him, and he was eventually placed in the care of his paternal grandmother under a Special Guardianship Order where he remains. X was extremely close to his grandfather, but his grandfather moved out of the family home after becoming unwell. Tragically, following this X’s father sadly passed away. X has had little to no contact with his mother; as such, his grandmother is his sole primary carer who has been the one constant and stable person in his life.
X attended a number of primary schools, but there were ongoing concerns regarding the meeting of X’s educational needs. X’s difficulties began to escalate further, and despite interventions it became apparent X’s current setting (a maintained school) also were unable to meet need, and support X’s complex social, emotional, and mental health difficulties. The school determined X’s needs were much more complex than anticipated, and far greater help was required than initially thought at the outset. X’s behaviour at home and in school had become increasingly challenging, aggressive, and disruptive. Even with 1:1 support, the school were unable to cope, the gap for learning was becoming wider, and the overall deterioration resulted in X being placed on a reduced timetable.
A Final Education, Health and Care Plan was issued by the Local Authority, which remarkably named X’s current placement. The school in a letter to the Local Authority categorically stated they cannot meet X’s needs in a mainstream school, and as a result this was impacting on him being able to access the curriculum, and make adequate progress.
Ms Y instructed HCB Solicitors after the appeal had been lodged with the Special Educational Needs Tribunal by a non-specialist firm against Section I only. Ms Y expressed to us concerns. Following a thorough review of the case, a request was made, and approved for the appeal to be amended to include Section’s B, D, F and H as a result of the current situation, and overwhelming evidence to support the view these sections were simply unfit for purpose.
The Local Authorities response to the appeal was minimalistic; there was no longer a dispute in respect of the current placement being unable to meet his needs. However, the Local Authority refused to consider the placement of parental preference, on the grounds it was an unreasonable use of public expenditure, and proposed a specialist school predominantly catering for social, emotional, and mental health difficulties as a more cost-effective means.
At the time of seeking to amend the appeal, Ms Y had informed us that since the registration of the appeal, new information had come to light in relation to the placement being sought. Ms Y had found a place at an alternative placement, which had previously been considered, but at the time, it was at maximum capacity. We reiterated this to the Local Authority within our representations, and set out the reasons why a specialist residential setting, which can provide for X’s holistic needs, and offer a therapeutic approach, needed to be named within Section I of the ECHP. In addition, we filed an extremely concerning recent Ofsted report for the Local Authorities proposed school, in which the school was categorised as ‘requires improvement’ and ’inadequate’. Yet, despite this, the Local Authority continued to oppose the appeal on the same grounds ‘an unreasonable use of public expenditure’, as well as arguing that there was no evidence to prove X’s needs cannot be met at a specialist, non-residential school.
Further evidence was sought by Ms Y from an independent educational psychologist and, independent social worker and an assessment from the specialist school to gain an up to date understanding of X’s needs. At the final evidence stage, we scrutinised in detail this additional evidence by drawing a comparison between the two placements being presented to the Tribunal. The Ofsted reports alone proved there was a stark contrast between the two placements. The placement of parental preference was deemed ‘outstanding’. It could provide the specialist, therapeutic, and holistic care, all within a highly specialised, consistent, and nurturing residential environment required to meet X’s individual and highly complex needs.
We expressed concerns to the Tribunal, that the Local Authorities proposed placement was not suitable given the background, and complexity of X’s needs. To support this view we referred to the findings, and recommendations within the independent reports including a clinical psychologist report. It was also clear from the Ofsted report, the detrimental impact, and risks were far too great should X attend this school in its current state. In particular, there was no specialist intervention, and ability to manage pupils with additional needs, concerns had also been raised in relation to safeguarding, and the managing of behaviour. This was still the case despite a change of head teacher whom had communicated concerns to Ms Y. Based on a revised EHCP, the school cannot cater for X’s therapeutic needs, and did not have the appropriate qualified staff and therapeutic understanding to meet his needs.
It was at the eleventh hour the Local Authority reached out, to request from Ms Y permission to consult with other schools, and later undertake a social care assessment. The Local Authority proposed a number of schools, to try to rebut the placement of parental preference. The Local Authority were clearly aware they did not have a credible case, and were at the last minute scrambling around to find an alternative placement at a cheaper cost to that of the parental preference. The hearing had already been delayed due to lack of court time, but the Local Authority in its panic sought permission for the hearing to be delayed again. This would allow them to consult with yet another school, even though they had long enough time to do this, conveniently using the current coronavirus pandemic as their excuse. We strongly objected to this, and remarkably, the Local Authority shortly after, requested the appeal be re-listed for another date, as the school they wished to consult with could no longer undertake an assessment. As a direct result of this, and the unnecessary delay caused by the Local Authority we contacted them to request they concede, given this and that they were aware of the ever-deteriorating complex circumstances faced by Ms Y and X. The Local Authority astonishingly reverted to its original proposed placement to continue to defend its appeal.
We continued to liaise with the Local Authority through the Working Document process, and after many mishaps by the Local Authority, eventually we were able to skilfully work through this to successfully negotiate, and agree to most of the outstanding issues within Sections B, D, F, and H. This process can be extremely complex. It is not helpful when the Local Authority agree to a considerable amount of wording in one Working Document narrowing the issues in dispute. Then in the next Working document change the format completely, reversing those agreements.
Hearing and Final Order
The Appeal was finally heard in July 2020, in which we successfully represented Ms Y. The Tribunal ordered a fully funded placement at an independent residential special school, which offers a therapeutic curriculum, and caters for the needs of pupils with attachment disorder and emotional dysregulation to be named in Section I of the EHCP.
The Tribunal determined the proposed placement of the Local Authority was unsuitable; this meant the Tribunal did not have to undertake a costs comparison to decide the issue of costs; whether the parent’s proposed school was an ‘unreasonable public expenditure’.
In summary, the Tribunal’s findings were as follows:
• X needs education and training to understand and manage his emotional dysregulation, associated with his attachment disorder. This is consistent with Section 21 (5) CFA. This is not a health authority responsibility or a social care provision, but an integral feature of his educational provision. If it educates or trains, it is to be classed as educational.
• The Tribunal were not persuaded by the Local Authorities proposed school, and even if there were a radical transformation, it would still be unable to deliver, and offer the settled, secure, specialist, therapeutic environment that X’s special educational needs require. If X does not have a school with a therapeutic approach embedded in its provision, X is unlikely to respond positively.
• The Tribunal did not accept the argument a move to a residential setting would damage the relationship, and link to Ms Y. The Tribunal were struck by the fact, that ‘despite the number of reports and social work assessments warning of breakdown as a major risk, the LA has given no indication or any thought of what provision for X should look like, should placement with Ms Y fail’.
• Furthermore, their argument of placement was weakened by the LA failures to respond to X’s scale of need in a timely manner, when it was known X‘s learning was being disrupted by poor behaviour, and as such was only attending school on a reduced timetable. Yet, despite X’s, needs being exceptional, affecting him both at home and school it took nearly a year for the Local Authority to produce an EHCP following assessment.
• A residential placement with both the therapeutic educational environment, and therapeutic parenting approach will more likely aide X’s relationship with Ms Y to remain intact, and continue to be a positive element throughout X’s schooling.
• The placement of parental preference was significantly much more expensive, and whilst costs were not needed to be considered, it was quite possible that if this placement succeeds it would be a cost effective placement. In any event, if the question of costs did have to be considered the Tribunal would require a detailed schedule of costs for the Local Authority placement, which had not, been provided.
Following the successful outcome Mrs Y contacted HCB Solicitors, and stated the following;
“I can’t tell you how totally relieved and overjoyed I feel at the fantastic outcome of the Hearing… I can’t find words to thank you enough for your incredible expertise and dedication to X’s case. It was quite a wait for the answer but a simply wonderful conclusion. X is excited at the prospect of going to his new School and I will let you know how he settles in.”
If you are facing any issues similar to those above, please contact our specialist education solicitors to discuss how we could assist on – 0333 202 7175