During an appeal it is important that you are aware of the cost of providing support for your child. The additional cost to the Local Authority (LA) may include things like extra provision in school, such as teacher assistant time, fees at a private school or travel costs.
The costs incurred by schools and the LA in meeting your child’s needs may come up within an appeal to the First-tier Tribunal (SENDIST).
Transport costs can be important when appealing for any type of school.
Factors that need to be considered (if relevant):
- Is there existing transport to your choice of school that your child can access?
- Would there be an additional cost if your child joined this arrangement?
- While the school might be nearer to you, the journey at rush hour might take a long time leading to a higher cost (worth exploring).
Surrey should produce a breakdown of costs which includes transport, as part of the LA’s Response (called a R1 Form) during the appeal process, however we would advise you make a formal request (copy in First-tier Tribunal) to Surrey to produce the costs of transport.
If Surrey just gives the total cost of the taxi 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.
Please note that sometimes a higher cost works in your favour, e.g. the cost to transport to the LA school is a lot higher making your preference a ‘cheaper’ option.
Live too close to the School for transport:
If Surrey 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?
See our Information Sheet on Transport.
Appeal against a ‘refusal to assess’:
“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 an appeal for refusal to assess the actual cost should not be a factor. Although schools are normally expected to have spent at least £6,000 on your child before considering an EHC needs assessment, this is not a legal requirement.
The legal test is the measure: whether your child may have special educational needs and may need special educational provision.
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 needs assessment should be carried out.
Appeal against a ‘refusal to issue’:
“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 main issue here is whether an EHCP plan is ‘necessary‘. If your child’s school already has the resources to support your child, paid from their normal SEN budget, the LA 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 evidence that your child’s needs can’t be met by the school. Hopefully your School can help you with this.
Start with listing exactly what provision your child does get. Schools may have drawn up a Costed Provision Map which shows exactly what the school is providing from their delegated SEN budget. The 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. It may be called an IEP or an ISP.
Speak to the school to ask if your child’s needs go beyond the resources that are available to the school. The school may not have sufficient funding to cover support, ask what their SEN budget is, how many pupils are on the SEN register and how many have an EHCP. The idea is that this may give you evidence that the school is having to deal with many demands on their budget, and that more provision is needed for your child.
You could also ask the school: would the provision being made to my child still be available if another child with a high level of SEN was to join the school. If another child with SEN was to join the school, would the currently provision being provided for your child (through SEN support arrangements) have to be reduced?
Appeal against the contents (Sections B and F and I appeals):
Two costs may come up 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 EHCP must be written for your individual child and without consideration of cost. Once sections B and F are resolved, maybe through the working documents stage, the school placement (in Section I) should be considered (including transport costs if needed).
Section I appeals:
“Surrey Local Authority says that it would be too expensive to educate my child in our parental preference mainstream school”.
If you are asking for a ‘mainstream’ school, the cost of the provision cannot be used as a reason for refusing a placement. A refusal can only be made if your child joining the school would be incompatible with:
- the provision of efficient education for others, or
- the efficient use of resources. (SEN Reg 39(4)).
“Surrey Local Authority says that it will name my choice of mainstream school as long as we take our child to school / provide the transport”.
Surrey must show that there is a nearer school that can meet your child’s needs and they have a place. Therefore, they have formally consulted with ‘their’ school and they have agreed that they can meet your child’s needs and can offer a place in the correct year group.
If you feel there is a good reason why the nearer school is inappropriate then you should highlight this, for example the school that Surrey is proposing does not have any experience in meeting the needs of children with your child’s condition or diagnosis, or the school layout is not appropriate as it is over several floors and your child has physical disabilities (your school being on one level).
Please note that you cannot appeal to obtain transport, but you can appeal to have your choice of school named unconditionally in section I. If the cost of transport is quite low, it will be difficult for Surrey to argue that ‘your’ school is an ‘inefficient use of resources’ (see above).
We want an independent school named but Surrey have said my child’s needs can be met in mainstream):
You would be appealing the school named in Section I. The First-tier Tribunal would be looking at whether each school can meet your child’s needs.
If the Tribunal decides both Schools can meet needs, it will then look at the cost difference between the two schools.
Please note: you should ensure that the provision in section F is correct and quantified and specified (see Checking an EHCP and Quantified and Specified).
If the cost differential is not huge you need to argue that the additional educational benefits for your child to attend the school of your choice justifies the additional cost, therefore is not unreasonable expenditure.
If Section F is well-written (so it is quantified and specified) 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 13 hours of Teaching Assistant (TA) support per week). This may be shown on a Provision Map.
You may need to try to calculate the costs involved in regard to a placement in a mainstream school compared with the independent school if that is what you are appealing.
We want an independent special school named in the EHCP but Surrey says my child’s needs can be met at a local state special school:
Some independent schools are ‘Section 41’ schools – they are on a government-approved list. You can check this by going asking the school directly or coming to us and we will look it up.
If the independent school you want is a ‘Section 41’ school then Surrey 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 Surrey to prove that a local special school can meet needs.
If the independent school is not a ‘Section 41’ school, as parents you will need to:
- show why the special school named by Surrey is unable to meet your child’s needs (look at sections B and F to see if you need to appeal these sections too) or
- your choice of school is not an ‘inefficient use of resources’.
Special schools’ placements are in the region of £10,000 per pupil. However, your child may have needs which means the school will need ‘top up’ funding to be provided by Surrey. You can ask Surrey and/or the school what ‘top-up’ funding will be provided. Also think about the cost of transport.
Please note: if Surrey special school is ‘place funded’ (i.e. a number of spaces are pre-paid) and there are spaces, the Local Authority can argue there is ‘no cost’.