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bjkmummy

3 weeks to tribunal and LA trying to get an adjournment

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its a refusal to assess. we are calling no witnesses. LA are only calling class teacher /senco. I know they asked her back in feb as she told me and she said she was happy to go for the LA.

 

ive now had an email saying LA want to vary the appeal date as the teacher says she cant come due to SATs. the hearing is the week before the sats but she says she needs to be in school for sat preparation. its a tiny school with only 2 teacher - only 2 kids in year 6 are sitting the sats. the reality is that the teacher got cold feet. school ina different LA to my home LA and school just converted to an academy.

 

She wrote a report last week which ive asked to be submitted as late evidence which shows that my daughter falling further behind. my case is ready to go and all is in order. we have 2 boys with ASD and just organising the childcare has been a nightmare. ive just emailed the LA back and said I don't agree to an adjournment and my reasons why. they say the teacher would be available after 19th may but its not likely that I would get another hearing date that quickly plus again trying to get things organised would be a huge headache and no doubt here would be another excuse further down the line.

 

my question really is how likely are the tribunal to agree an adjournment with less than 3 weeks to go to the hearing? I really don't want it to be adjourned - I just now want it over with!

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It might also be worth pointing out that she has provided a written report and that you won't be querying/challenging what she says. So her presence should not be needed.

 

I think tribunals tend to be fairly generous in granting adjournments but in this case it would hardly seem necessary.

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my bundle came today from the tribunal - the venue and time is perfect for us in terms of childcare - last time it was another venue which we were concerned we would get again so I definitely want it to go ahead now as it means all the arrangements for the children we have made will work

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I assume the LA has already contacted SEND via a Request for Changes form, asking for an adjournment? Query SEND if they have because they should have sent you a copy of that request.

 

All you need to do is respond to SEND, not the LA. Send in your own Request for Changes form detailing why you do not agree to an adjournment. The LA have had plenty of notice of this appeal date. Say that the venue is convenient for you. Say that you have 2 other ASD children and you have had difficulty arranging childcare for this date, and so do not want another date.

 

You can include this teachers report that she gave to you and include that with your request for changes, as late evidence, and evidence that backs up your case.

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As Sally said, I would email your response to this to Tribunal immediately. Then give tribunal a call just to make sure that they have got your response and are considering that along with LA's request.

 

Our LA sent in a request for changes a week before tribunal as they wanted to postpone tribunal by a few months - we responded to tribunal immediately as was last thing we wanted. All that was outstanding by this point was name of school in Part 4 (they were already funding school), so tribunal suggested they go ahead and name school so that we could withdraw appeal - so that's what happened and tribunal was cancelled rather than the postponement LA had requested!

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the LA havent offically made the request yet - they have just emailed me to see what my views on it would be. i have emailed them back and said i wouldnt be able to agree to an adjournment and my reasons for this. i know we are meant to try and sort it out first but this is something i would never agree to - im expecting them to make the application on tuesday - thats if they are going to make it. they have now copied the EP in which is interesting as the EP has never seen my daughter so why they are doing that im not really sure. at the tribunal over my son last year they called him and he hadnt seen my son for a year which the tribunal immeadiately picked up on so he didnt actually say anything as nothing he could say and this time he would have even less to say......

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If they do seek an adjournment they should send you a copy of that request, and you respond to SEND saying you do not agree and give your reasons why.

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well today - 2 weeks today to tribunal -I got the letter form the LA with the official request to vary the hearing date - they handwritten the form and sent it to me 2nd class - not even 1st class! ive spoken briefly to the tribunal and they said that they would not agree an adjournment until they had heard from me first. the LA application makes no mention that they have contacted me and I have objected to it. im just worried not what my already prepared child care arrangement for the 2 boys will be enough reason for the tribunal to continue = the reality is im guessing the LA are buying for more time and I can expect some fun and games if it is adjourned

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State that you do not agree to an adjourment because:

The LA have had plenty of notice of the Tribunal date and so have any witnesses they wished to attend.

That you have struggled to get appropriate child care arrangements for your two other children who are both autistic and so you want the current date to stand.

That the witness they are calling has already written a [report or letter?] that agrees with your reasons for lodging the appeal ie. it confirms that your daughter is falling further behind, and attach it for SEND to see.

That currently you have reports that are less than 6 months old and any adjourment could make them older than. If SEND requires reports that are up to date, request that the Judge should Order that SEND or the LA will fund the cost of any re-assessment reports you may need to obtain if the Tribunal date is moved.

Plus anything else you can think of.

You can also add how long you have been seeking support for your daughter who is now ?? years old, and that this appeal is about a decision on whether the LA should assess or not. If SEND Order the LA to assess you still have the Statementing process itself where every professional will get a chance to assess your daughter again and that time is moving on and you want her to receive the support she needs as soon as possible.

 

Do you have any witnesses that are attending for you?

Edited by Sally44

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For our tribunal we had it cancelled two times. Once with just 24 hours notice. It was SEND's fault as they had overbooked appeals in the expectation that a large majority of them pull out.

 

We were supposed to have the original Tribunal in April. We finally had the Tribunal in October. Because SEND had moved the dates twice, it made my reports more than 6 months old. We had already had an earlier Order from the Judge stating that he wanted the appeal papers in two bundles [as there was so much evidence]. He wanted a 'core bundle' of documents and reports that were less than 6 months old, and a supplementary bundle of the remaining evidence.

 

By October the independent SALT, EP and OT reports were over 6 months old. Because the SEND judge had ordered that the core bundle had to be less than 6 months old, and SEND had moved the appeal date so that all my reports were older than that, I got SEND to reimburse me for all my reports, which had to be re-done. I simply argued that their own Order said the Core Bundle had to contain documents less than 6 months old and due to two cancellations all my reports were now older than that and so the Core Bundle would contain nothing.

 

So it is worth making that point in your reasons for not agreeing to an adjourment.

Edited by Sally44

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I think in your response you need to emphasise that the presence of the witness is not critical to the outcome of the tribunal. Since it is an LA witness say that you accept what is written in the report and won't be needing to ask questions.

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I responded yesterday so now I just have to wait and see what they say - its now in the hands of the tribunal to decide. the LA argument is very weak just says she cant attend as she needs to be in school - doesn't even state that she is needed really for the hearing or how her attendance is going to support/help the LA case. the LA stated in their case progression that they would be happy for the case to be heard on the papers alone which is quite astonishing given they don't have a single professional report and we have EP, OT , SALT and dyslexia specialist teaching reports. it will depend I guess on how the tribunal judge feels - theres nothing more I can do now but its very unfair that now with less than 2 weeks to go we are left in total limbo not knowing if it will or wont go ahead plus we have the carers all on standby as well who have arranged themselves time off work and as their shifts have already been covered (they are prison officers) its really going to be disruptive to cancel it but ultimately nothing more I can do now but wait and hope the tribunal rule as quickly as possibly

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phoned them this afternoon - they have the application from the LA and my response and now its just a waiting game for the judge to see it - they advised me to phone back on Monday so got a long weekend of waiting ahead of me - the LA have done a good job of making me worry about it all!!! it certainly was a good tactic they have used. going to try and keep busy over the weekend and just continue to keep everything crossed they don't agree it. thought about it earlier and its not just me the LA are messing around, the file will now be with the panel members, the venue is booked and there is now just over a week to go so it would cause so much disruption to everyone by adjourning it

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phoned them today and its still not been passed to a judge but they are well aware of it and still a case of just wait and see...... 9 days to go

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That's it bed and I won't. I still think that there's a sting in the tail coming - don't know what but my guard is up. I havent seen the actual order yet. Hopefully it will come tomorrow, will be interesting to see what it actually says. They didn't allow my late evidence of a report by the Senco as after the deadline but say I can ask on the day do I will do that. Always knew it would be gamble getting it in. That application has sat in th tribunal office for 2 weeks which hasn't helped but even if its not admitted I still have plenty of evidence

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I didn't think they'd agree to an adjournment.

 

What I recommend is that you take a notebook and pen with you and make a note of anything the LA says that you want to counter. As you know you get frequent breaks during the tribunal itself. You can ask the Panel if you can answer some of the points raised at the end - and they should be happy for you to do that. During the breaks write down what your counter argument is to anything the LA have said, and then just read it all out at the end as a kind of closing paragraph.

 

I think they are bound to order an assessment for a Statement simply on the grounds of how far behind she is now, and how you [and the LA], need to know what her needs are so that she has the right support and the right placement for secondary school.

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Yes, take any late evidence - with copies for each panel member and one copy for the LA. And give it to the Panel as late evidence and ask for them to admit it as it is relevant to the case.

 

The LA may refuse to admit it, especially if it goes against what they are saying. But you simply say that this report by the SENCO is crucial, especially as the SENCO could not attend today, that their opinion on your daughter and her needs is known.

 

At our tribunal we submitted a diagnosis of an Anxiety Disorder on the actual date of tribunal. The LA refused it to be admitted. But the SEND Panel are independent, and they decide if it is relevent or not. Obviously a diagnosis of a SEN is important when you are talking about a Statement and what the Statement should contain, so of course they admitted it.

 

In your case the Panel need to know what professionals opinions are regarding your daughters SpLD. They need to know that to give an informed opinion on whether the LA should assess for a Statement. So they need to know what the SENCO's opinion is, especially as she could not attend and an adjournment was not agreed due to the timescales involved.

 

Don't take their earlier refusal to admit the SENCOs report as meaning they won't accept it on the day. They usually do. They accept it on the day because everyone is there and can read it. Late submissions are notoriously difficult to get sent to the panel members in time and for that reason alone are often refused.

Edited by Sally44

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I assume you have plenty of evidence of the needs themselves - the danger could be that the LA claims that the school itself is not doing enough

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at the last meeting i had with the LA and school the LA seemed more than happy with everything the school have in place for her and have commited this in writing - i know there is a risk on the day that they will try and argue the school could do more butnot sure what more the school can do without an assessment as the school really dont get what her true needs are. the school is tiny with only 20 kids in the school - theres 10 in a class so teaching ratio is 1:5 but despite this she is falling further behind - i can argue that shes already getting a very high level of support and this is making no real difference to her. its hard isnt it trying to pre empt what they will say. the LA case is that her needs can be met at school action plus. there is no LA EP report but we have an EP, SALT, OT and specialist dyslexia teaching reports plus in a lot of areas ie spelling maths etc she is on the 2nd centile but has an average IQ - at year 5 (plus shes a sept baby ) she is on levels 2B where she has stuck for a long time despite the high staff ratio and everything school have in place and the hour of specialist teaching we are paying for. she is now about 3 - 4 years behind academically. LA criteria is that she should be below a 1A to be eligible for an assessment

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Each LA is different - in our area there is a (nominal) allowance of funding for 12 hours TA time per week per child on SAP. (I say nominal because I am not sure the school actually got that). So as part of our initial request to assess, and the appeal to the tribunal, we included evidence to show that the amount of time the school was spending exceeded that amount (and how it was spent).

 

I don't think the council are likely to take that approach - but it seems to me the only way they can defend the appeal is to blame the school and say they are not doing enough, or that their use of the delegated resources is inappropriate.

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At this stage you are simply looking for SEND to Order the LA to assess for a Statement. What you are thinking about is what the actual Statement could or should contain. You are thinking too far ahead.

 

At this stage it is simply that your daughter has a, b and c difficulties. She is in a school where there are xx children per class and a ratio of x adults per x children. She is falling further and further behind. And the current SENCO agrees that that is the case. So she needs properly assessing so that all her needs are identified and so that the right support, provision, specialist teaching/therapy is in place so that she makes progress.

Edited by Sally44

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Yes you are right Sally, it's easy to start over thinking thing. I've got the order now. It states that the la could proceed on the papers alone or they could get the teacher do put her evidence in writing or give evidence via telephone. These are things I suggested so they've taken that from my letter of opposition.

 

We finally got the order by email in Friday afternoon and thenla have until tues to oppose it. It also means they only have now tues to decide what they will do and get the teacher to write a report - I still have the teacher report which will try and get in as Kate evidence on the day. The Senco/teacher has used every trick to try and show she's made progress but contradicts herself all the time plus I have he indie reports to show also how far behind she is. I have a feeling that something will happen on Tuesday , it might be I think the la trying to call the EP as a witness who has never met my daughter. I guess the Senco could still turn up and give evidence but as our school is put of county my LA have no real power over her or the school.

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If the LA do not get this teachers advice - which is the reason they sought the adjournment - your late evidence is that very same teachers advice. So give it to the panel on the day and say that:

 

"The LA wanted xxxxx advice to be included in the evidence, and is why the LA sought an adjournment when it became evident that she could not attend in person. The LA have failed to get her written advice, but I have it here and want it to be admitted as late evidence."

 

The LA would find it very hard to explain to the Panel why they refused to admit advice they had sought an adjourment to get. And i'm sure the Panel will agree to admit it anyway, even if the LA refuse. It is relevent up to date advice from the current teacher.

Edited by Sally44

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the class teacher has announced to the class today that she will not be in school all day tomorrow so sounds like she is attending the hearing after all. after protesting so loudly she couldn't attend the LA have obviously persuaded her to attend - given the hearing is only a morning hearing and how adamant she was about not being out of school is also quite perplexing that she is now going to be out of school all day. of course ive only heard this via my daughter - no doubt the LA are keeping this quiet to surprise us with tomorrow - pretty rubbish really given how they have faffed around for 3 weeks protesting no way the teacher could attend!

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Make sure you still take her report/letter with you to submit as late evidence.

 

Make sure you take a notebook to write down anything you need to address or counter.

 

Write a short opening statement about your daughter and why you are at tribunal.

 

Take a photo of your daughter on her own, or a family shot. Make it a nice happy one. And put it in the middle of the table.

 

Use your notes from your note book to make a summing up statement at the end.

 

And ask the Panel if you can make a final statement at the end. The Panel usually ask you to say something about your daughter or why you are appealing at the start of the hearing.

 

Good luck.

 

Write down what the main points are. Don't let the LA sidetrack things by bringing up small things that are irrelevent or minor or just take up the time.

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After all of that the teacher came so not sure what all the problems were over the last 3 weeks unless it was just to unsettle me

 

Judge opened it by saying it was a well ordered bundle and they were going to ask questions where they felt the gaps were.

 

They started by saying that the first part was to show that all of her needs had been identified. The LA case was alway its just dyslexia and no evidence of anything else. They were forced to admit by the judge that her needs were much more than this and accepted the list that the judge reeled of at them.

 

Then they went through what school had in place and then it was about progress.

 

As usual come away feeling shell socked not knowing how its gone as panel,poker faced. Class teacher gave most of the evidence and just gushed about her amazing progress and all the help in place. The teachers report showing where she had got my daughter to re do tests and the TA scribing for her went in as late evidence and I was able to point out that her scores were so much Higher because of this. The panel did question the teacher about this . The LA accepted they have no specialist teachers in our county when she comes back here for secondary. The school have agreed now to call in the specialist teaching service in their LA which to date they had refused so felt like the school were throwing provision at her.

 

I just felt that after all my hard work on my bundle the hearing itself just focused on the teachers evidence. I'm worrying just how much my written evidence will go towards the decision. The panel were very focused on the salt report and its very low scores plus they asked if school were now going to refer her to a NHs salt. They also picked up that although we had an indie OT report that there was still the NHs OT to go and were concerned that more needs would be identified there as well.

 

The LA said very little. I referred to the code saying about significantly delayed etc and allow her reports say she has significant delay. The school started to quote their LA policy and why they couldn't support the assessment and the judge stopped her and made it clear it was the code of practice only that they were concerned about. Class teacher also said that she didn't feel the specialist teacher was having a huge impact on her and it was the schools efforts alone helping her. Secondary was mentioned quite a bit by the panel as she is year 5 and that she is. It going to get this level of small class sizes of 12 in a secondary school.

 

It was done in under 2 hours - glad its over but today i feel awful and definately have post tribunal blues as i can't read the tribunal and also I guess I don't want to as I can't bear the thought we may lose but guess that's a natural reaction. I felt exactly like this last time and we got a good result then but nothing is ever guaranteed.

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I think they will order an assessment by the LA as she has dyslexia plus other needs identified by the panel by the SALT and OT. So it is a complex case, and so she needs assessing and it is even more important as she is in year 5 and you need the time to get the Statement, and then appeal the Statement.

 

If she is not making progress in the primary classes of xx pupils. How are they expecting her to cope in a larger mainstream environment? She needs to really be up to a level 3a/4c as a minimum, and she is lower than that. But that does not necessarily mean special school - but maybe dyslexia specific. But with the SALT and OT needs, do you think she could be on the spectrum?

 

I know there's no point saying not to worry. But I think it will go in your favour.

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I don't know about the asd sally and its something I keep thinking long and hard about. the panel were very interested to know about her brothers and an eyebrow was defiantely raised when they learnt it was her twin brother in the asd indie school. her report by the OT do mention rigid thinking and the salt report also has red flags but her social use of language wasn't tested as we had salt done mainly from the perspective of dyslexia so maybe if the journey continues we could look at that as well. she is now coming onto the NHS OT radar and she is going back to see them in a months time. she has had a triage appointment and nothing was raised then as such but I guess as more reports come in we will see.

 

the judge started by saying 'had all her needs been identified' the LA when they did the refusal did it on the basis of dyslexia only - since then they have lots more report which have identified more needs and the judge listed her needs now which the LA accepted were her current needs - and tahts where I get confused I guess. the LA accept all of her new needs so we could argue they have all now been identified post refusal but the LA have never reconsidered the case with the new dx on the table. the judge also made comment that she is about to see the NHS OT so there could be more things coming.

 

then moved onto the provision in place now - and the school gushed about all of the help she gets which was news to us. they made it sound like the whole schools timetable revolved around her. that she was getting so much help from the TA who is assigned full time to another statemented child plus this TA helps 2 other children on the sen register as well so the teacher admitted they were using another childs statementing TA hours for other children.

 

then it was progress - and that's where the teacher said she had made 6 points progress in 3 months - I did argue that as I had got the report in as late evidence which clearly showed that she had gone backwards then teacher made her redo the test with a TA who was able to write and explain the questions to her so was an artificial increase. the teacher admitted that she had done this and tried to argue she was allowed to as she could have help in the SATs next year., I argued that yes that's correct but only if that's her normal way of working which it isn't plus all the other reports show how behind she is using standardised testing.

 

in her reading without help she scored a 2b - in the hearing teacher was arguing she was a 3b. I googled the judge and shes been a judge for nearly 20 years so hopefully knows her stuff. my heart and head both say they should assess but theres always that doubt as you just don't know which way it will go.

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The LA have been fobbing you off. That is what they do. They try to keep funding to a minimum. But now the Panel have listed her needs, the LA have to agree. The LA cannot fob off the Panel and the Panel go with the Code of Practice - as they stated. They are not interested in the LA internal criteria, they go on law.

 

It does not matter how much the school gushed about the amount of support she gets. That actually works in your favour because even with that support she is not making progress. So she needs more. That is why you need a notebook with you because you could have said something like that as a summing up statement ie.

 

"The LA have now agreed that my daughter has needs as you have identified them. That is something they have always denied to us. The school have detailed how much support she receives and yet she is not making progress. She has a twin brother with an ASD who attends an independent special school and we believe our daughter needs thorough assessing as she too maybe on the spectrum." etc etc

 

But the Panel are not stupid. They can see the evidence and what it means for themselves.

 

The NHS OT will not be able to provide much if anything for your daughter. I think I sent you the information from the college of OT's regarding Dyspraxia? The NHS do not provide any therapy for Dyspraxia. And if she has a sensory processing disorder the NHS do not provide Sensory Integration Therapy. That is why if these are needs your daughter has, that you need an independent OT to state that, and to detail exactly what therapy she needs. Then you write to the Head of the NHS OT department in your area and ask them "What 1:1 therapy does the NHS services provide in school for Dyspraxia and Sensory Processing Disorder and do you have any OTs trained to level [can't remember what level it has to be for sensory processing disorder, but an independent OT would know]. I can tell you now that the NHS will not have anyone.

 

And when you find the school that does have OT's and SALT's employed on site, that is the reason you appeal for that placement as the ONLY one that can meet your daughters needs, because you already have letters from the NHS saying that they don't provide 1:1 therapy in school for Dyspraxia and Sensory Processing.

 

The same applies to the LA specialist teaching service.

 

Again write to the head of that service and ask them how many specialist teachers the LA has. How many of them go into mainstream schools and deliver a 1:1 dyslexia teaching programme. Ask them how many of their specialist teachers are trained to level 7 to both teach and assess. Again they won't have anyone. They will have a teacher with 'experience' or 'training' in dyslexia who might give advice to the school or TA. That is not the same thing. Your daughter is now years behind and needs a specialist teacher and that provision is listed as they type of provision that can be provided [listed in the SEN Code of Practice]. Have a look on the PATOSS website [independent specialist dyslexia teachers]. And they need to be trained to level 7 so that they can both teach and assess because without proper assessment you don't know if they are making progress, so how can you monitor progress without proper assessment?

 

Even a specialist ASD Independent school may not have a suitable specialist dyslexia teacher. The one my son goes to didn't. So we had to get costs for the LA to buy that in on top of paying the Independent School fees. And the Panel agreed and Ordered the LA to pay it.

 

So your arguments for your choice of school will be similar to the arguments we used. That our son was average cognitive ability but would be unable to cope mainstream - but not LA special school material.

And that the ONLY school that could provide the SALT, OT, specialist ASD teaching and who had an Educational Psychologist on site was our parental choice of school PLUS we needed additional funding for a specialist teacher for his dyslexia and dyscalculia.

 

It really depends on what her main needs are as to whether you look for a dyslexia school with SALT and OT that also has able children on the spectrum, or an ASD school with SALT and OT and buy in additional specialist teaching.

 

It is illegal to use another child's statemented time. The school may not know this [but I doubt it], but the LA definately knows this is illegal. You are not the only mother with SEN children. The LA do know the law inside out. They just don't apply it for as long as they can get away with it.

 

Just keep monitoring assessment results because they cannot keep faking it. Yes she maybe able to have a reader and writer and that will probably increase her scores. So if she needs it why aren't they providing it full time?? Plus a reader/writer does just that. They don't 'help' by explaining what things mean. If she has difficulties with Speech and Language then that is a SEN. My son would also do much better if someone sat with him explaining what everything meant. So would any child.

 

I'll eat my hat if they don't Order an assessment for a Statement. And I think you need to start thinking and looking for the right secondary school from now on. But remember you will probably be seeking that as part of an appeal for the finalised Statement - which as you know will probably be pants.

 

Try to do something nice this weekend to take your mind off it.

Edited by Sally44

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It sounds as if things went pretty well. Don't forget that the panel have a lot of experience listening to LA procrastination and they are highly unlikely to be taken in by the nonsense LA try on with parents. I can't see the panel not ordering an assessment here, a combination of needs not fully diagnosed and failure to make progress make it pretty much an open and shut case. (But panels do occasionally make odd decisions!)

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thing is sally the report I handed in which the teacher had wrote and explained the extra help she had been given in tests did admit that the TA helped her explaining what things mean!!!!! that would never happen in the SATs next year

 

secondary placement - the LA admitted in the hearing and have also put in writing that they employ no specialist teachers whatsoever! not a single one but the individual academies themselves may have a specialist teacher

 

I have from my last tribunal that NHS OT do nothing for sensory issues. I do have an indie OT report which does specify when the time comes what OT provision she will need once and if we get a statement as does the SALt report as well.

 

Panel asked about the EP and why there was no LA EP report. LA said school could call them in if needed and the panel did press the LA and said but how does a child without a statement get access to the EP and the LA couldn't answer the question - I know its complicated as shes in an out of county school and LA tried then to pass it over to the school and the EP service. they were also forced to admit if she was assessed it would be the home EP that would see her - actually also that's where I got the LA person confused as I asked about specialist teaching and she admitted none in our LA but then she could always see the EP instead and that's when the panel were saying but how can she access the EP service if she isn't statemented or assessed - the LA rep didn't really come back and answer the question at all.

 

the LA summed it up by just saying there was no evidence of a need for an assessment to be done and that was that!

 

my heart and head say she should be assessed but again as we all know sometimes odd judgements are given so that's why I feel sick at the moment and even if we win, I will be back at tribunal I reckon by February so it will all start again.

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I know it is very stressful and draining. But that is the process and we just have to methodically plod through it.

I'm sure they will be Ordered to assess. So something positive will come from this Tribunal. And once she is statemented she has access to other types of schools.

Yes you will need to appeal the final Statement. But it should get your daughter into a school that can meet her needs and where she can make progress. You've already done it with your other two boys. Are any of the schools they attend suitable for your daughter?

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