Statutory assessment not carried out fully.

[nicadh]

Hi, am writing this as supporting a friend who is trying to get a statement for her daughter. We went through this last year ourselves with DD with ASD appealing at every stage but won in the end.

 

In this case it isn't ASD but there are issues and one genetic diagnosis in place though other issues not formally diagnosed. We are at the stage that we appealed failure to assess and the LA backed down. Statutory assessment was carried out and now a note in lieu has been issued that we will be appealing. When paperwork was submitted re statutory assessment we asked that they carry out an OT assessment as previously an EP report had flagged motor skill concerns, and also a dyslexia assessment as a screening type test carried out in school previously was suggestive of dyslexia. The EP saw her again as part of the SA and once again flagged motor skill issues but the LA did not get an OT assessment done and the LA/EP did not assess for dyslexia.

 

Is there anything we can do at this stage other than appeal to tribunal? I have yet to discuss the possibility of getting private assessments done which I know will help the case, but I also am not sure the parents will be able to fund these. Is the tribunal able to order these assessments done before a hearing as they were not carried out during statutory assessment?

 

Thank you

[Sally44]

You are right to appeal the note in lieu.

 

You could write to the Head of he EP service and state that this child has been flagged as needing assessment for Dyslexia, and that a Statement must, by law, identify each and every need. Ask him to confirm when one of his EP's will be assessing for Dyslexia, and ask them to also explain why they did not assess as part of the Statutory Assessment. In your letter ask them to reply within 14 days.

 

What you also need to find out, and I would wait until the Dyslexia diagnosis is in. Would be to find out who is the Head of specialist teaching services within the LA. And then write to them and ask them how many teachers they have qualified to level 7 to both teach and assess children with Dyslexia. They almost certainly won't have anyone. Ask them how many hours per term they could quantify and specify for 1:1 literacy [and possibly numeracy if this child also has dyscalculia and dyslexia] teaching in school. They won't provide any.

 

So you will then have in writing a diagnosis, and no way that the school or LA can meet that need and quantify and specify provision for part 3. So enables you to look at a school that does have professionals employed on site for those learning [and also the motor planning] needs. That maybe a CRESTED school IF that is appropriate. If not, and there are other needs such as MLD, then you would be looking at that type of school that had those employees on site, or getting quotes for those services for that school to buy them in and the LA to have to fund that. That would happen if you win the appeal to SEND and have asked for these things.

 

You most likely would need someone to see this child and decide how much 1:1 teaching they needed. You can look for a specialist dyslexia teacher on the PATOSS website.

 

Regarding OT. The LA cannot make an NHS professional come to assess. You need to have made a referal to OT. Most likely that is a 2+ year wait?? And even if they do assess they often do not provide any 1:1 therapy in school at all. Do you know what is the cause of this motor difficulty. If it is an existing specific diagnosis, the parent might be able to access OT or advice on how to access OT via the website for that diagnosis eg. such as cerebal palsy. CEREBRA sometimes can help with funding and finding professionals to assess.

 

Otherwise it would involve finding an OT, look on the COT website for qualified OTs in your area. And I would not suggest getting an OT assessment until you are at the stage where the LA has finalised the Statement. At the moment you are trying to get them to assess, so that could be some years away - so worth getting the referal to NHS OT in the meantime.

 

I don't think the Tribunal can order that assessments are carried out. BUT you might try having a telephone management conference [which would involve a Judge from SEND, the parent, any advocate, and the LA representative]. You could say that you want the conference to discuss what the issues are as to why the LA has refused to assess. The LA might say during the telephone conference that that all the child's needs can be met within the schools budget. At that point you could say that this child has been flagged as possible dyslexia and also has motor planning difficulties and that you would like the LA to state WHO will assess and WHEN, as their decision to issue a Note in Lieu was made without them having all the details of the childs needs made availabe to them and therefore they could not have made an informed decision. You could ask the Judge if they can Order for the LA to assess for Dyslexia and for the LA to arrange for an OT to assess for find and gross motor planning difficulties. I don't know how the Judge would respond to that. And if the LA does do it, they are not going to suggest the level of therapy or specialist teaching that you want anyway. But you might get a diagnosis of Dyslexia out of it. Or if the Judge cannot make that Order, and the LA still did not investigate those needs, you would have that on your file from the Case Management Conference that you asked for these needs to be investigated and the LA did nothing. That could be very useful at any future tribunal.

 

Or you can proceed without pushing the LA to do anything because then, at the Tribunal, you can say that eventhough the LA knew that xxxx had fine and gross motor difficulties and also possibly Dyslexia that they did nothing to assess for these difficulties. That looks very bad on the LA. If you push the LA and they do do something and then suggest that this child has termly monitoring by an OT - that means you would still need to get a private OT report if it was felt that this child needed weekly OT input in a school where an OT was employed on site. The same applies for Dyslexia. They might say one of their specialist teachers will give advice to the school when needed. That isn't the same as having a PATOSS specialist teaching in school for an hour every week and training up the TA to deliver the literacy programme they have devised for this child.

 

Remember that if you do push and get a diagnosis of Dyslexia, that the LA must quantify and specify how to meet that need, and then you have to measure the child's progress. So you also need the LA EP to carry out standardised assessments of the child's cognitive ability. That will give a scales score for a number of things including literacy. Without that you have no way to measure if any progress has been made. If she scores xx at literacy and a year later has made no improvement then you can also prove lack of progress, and lack of progress in SEND law means that the child has to have increased input from the suitable professional so that they do make progress.

 

By pushing the LA to do things you are telling them exactly what you are after and giving them time to come up with something at the last minute or even on the day of the tribunal itself. Don't forewarn them. They are supposed to carry out the SA properly. Your friend just needs to appeal and make sure she gets her own case ready for that appeal. And I would not get any private assessments until you are at the stage of the final Statement being issued, because as you know it won't be written so that it is legally binding and it still will not contain all the needs the child has or the provision needed for each of those needs. So this parent will have to appeal the finalised Statement anyway. At that stage you get private assessments. And that gives her a couple of years to save up for them.

 

At this point I would just state that the child has x, y and z needs which are not in the Statement. You could push for the diagnosis of Dyslexia and see what they do and what they offer and maybe have that case management hearing to get on record what has been asked for by parents. See what the LA come up with. Then write and find out what specialist teaching services they have. And see what OT access you get and wait for the LA to be Ordered to assess [if you end up at tribunal], or they might decide to assess before the tribunal. Then wait for the draft/finalised statement and appeal that.

 

In the meantime make sure she has a benefits check as they might be entitled to money that would help them save for any assessments.

Edited February 24, 2014 by Sally44

[bed32]

Getting the necessary assessments can be tricky - you are not going to get any significant help that is not backed up with an expert assessment whether NHS or private. The LA are in a bit of a difficult position as they also rely on the NHS to make the diagnosis.

 

The parents can try going through their GP to get an assessment from NHS OT or they can try to get help from the voluntary sector (e.g. NAS for ASD issues).

 

Also they can try an organisation like SOSSEN - they will give a lot of help for free and I think they have some way of getting free assessments in some cases.

 

As far as what else to do - the parents could try having a meeting with the LA SEN department - saying that they are disappointed and pointing out the issues with the process (make sure they have read the SEN Code of Practice). If they make it clear that they intend to appeal then they may get some action.

[Sally44]

To summarise what I have said above. The SEND Panel can only go on the evidence provided to them. If the LA do not assess and do not do anything, and you do have assessments/reports/recommendations etc, then the Panel MUST go with the recommendations made by your professionals as that is the ONLY evidence available to them. If you push the LA and they do do something and then you want more than they have specified, then the SEND Panel has both sets of evidence, and you have to argue your case on the day and the LA will argue theirs. They cannot argue their case if they've done nothing. See what I mean.

 

Also, at this stage you are just looking to get a Statement. So you don't need to do much more than specify that this child has x, y and z needs that are not currently recognised and which need to be in part 2 of a Statement, and part 3 must quantify the provision for those needs. And that that provision cannot be provided in the current school under delegated funding.

 

And you would also be stating that the child is not making adequate progress. So what are her literacy and numeracy levels compared with her peers? Is the child in a mainstream school? How old are they etc.

Edited February 24, 2014 by Sally44

[Sally44]

In our case, when we were appealing the finalised Statement, a telephone case management hearing did help clarify what the issues between the parties were.

 

Is this parent looking to keep the child in the current school or are they looking to move them and if so to what kind of school.

[nicadh]

Thank you for all the fabulous advice. You have confirmed a lot to me about how to go from here. The parents have just received the paperwork with the reasons for a note in lieu instead of a statement so I should have access to that tomorrow so I can start putting their appeal together for them.

An OT referral was requested a few weeks back by school apparently and the NHS have come back and said that until she has completed 50 BEAM sessions in school and some other things they will not even see her. School have managed 5 sessions so far and suggested to her mother that it would be over a year before she would complete 50 sessions!!!!

I personally would choose to move her to another school - I removed me ASD daughter from this same school, though I have another DD there with ADHD who is coping ok though school are not great with her issues, and a younger NT daughter who will go there eventually. That decision however is not mine for this little girl and I believe her parents want to keep her at the school rather than look elsewhere. I may broach that topic with them again further down the line though.

I think after reading all the advice we will push again for the dyslexia assessment to be done and back off the OT for the time being as whilst she has motor issues they aren't her most major issue and whilst support will probably help her it isn't going to make the biggest impact to how she copes and progresses. If we don't get them to agree then we will at least have it documented and can decide about getting a private assessment done late in the process so it will be harder for the LA to dispute that.

Once again - thank you for great advice.

[Sally44]

I got a referal to OT via the Paediatrician that diagnosed my son. Health and Education are separate pathways to referals. Health can be quicker than education.

 

When my son was originally diagnosed the Paediatrician said he had sensory and motor planning difficulties, so I asked her to refer to OT. She tried to put me off by saying it was a wait of about 2 years and even then they might not do anything. But you need that as part to of your evidence at a tribunal. So my son was seen. They did do some assessments. They then said that the NHS did not provide sensory integration therapy or 1:1 therapy for Dyspraxia. I got that in writing from them. Then I went to tribunal asking for a school that had OTs onsite that were qualified to deliver these therapies and where he would get the therapy he needed. And I had the written evidence that he would not receive that therapy in his current school as the NHS did not provide it, so the LA would have to buy it in. Remember that a Statement must quantify and specify the provision needed FOR EACH AND EVERY NEED so if the LA or NHS says they don't do that/provide whatever it is the child has an identified need for, then the parents just need to get a couple of quotes for that therapy or specialist teaching and ask the SEND Panel to Order the LA to pay for it. And if this parent is not seeking that kind of independent placement that has those professionals employed on site, they can still get a report that states their child needs xx hours of 1:1 OT therapy every week in school for x, y and z and if the SEND Panel find in their favour the LA will have to buy that therapy in. However, if the child is at an LA maintained school the chances are that at the first Annual Review of the Statement these therapies might be dropped by the LA. Which would mean returning to Tribunal.

Edited February 26, 2014 by Sally44