LEGAL ACTION AGAINST SCHOOL FOR NOT RECOGNISING ASD?

[vicbee]

Hi - just a quick one after my last post. I was wondering if anyone knows of anyone who has brought a successful claim against the LEA/school for not recognising ASD. My daughter battled through a primary school for 5 years (until we moved to Spain) with social problems and other things yet no one picked up on it. The school she attended is well known for being supportive of academic and sports minded pupils. I have gone for 12 years thinking that my child was 'unpopular, a pain in the backside and basically thought I was a terrible parent because i could not handle my daughter and we didnt have a bond because of the way i was with her. I had never heard of ASD until 6 months ago. I feel very strongly that teachers should be trained to recognise the symptoms. Too many children are not receiving the support they need from an early age. it makes all the difference to how a child can learn even through his/her difficulties - if they get the support at an early stage.

 

I look forward to receiving your responses.

[Tally]

I agree that it would be a good idea to offer teachers more training in noticing the symptoms of ASD so that children can be offered earlier interventions and make better progress. But teachers already have a multitude of issues to deal with.

 

I think it's completely unreasonable to expect the school to pick up on ASD. Would you expect your GP to notice if your daughter was good at Maths? A diagnosis of ASD requires an array of tests by MEDICAL professionals with many years of training, and even they get it wrong sometimes. I can't imagine you would be successful with any legal action because you can't sue someone for not doing something that is not actually their job anyway.

[call me jaded]

What was her academic progress like? Should she have been on School Action or SA+? It's when they've been assessed by an Ed Psych or SLT and they've failed to pick up on something that you get a case for educational negligence.

[cmuir]

Hi

 

To an extent, I believe that teachers should be able to recognise when a child isn't quite behaving in the way which most do - they are in a position where they would be able to 'start the ball rolling' eg by discussing problems with parents, and if necessary, recommending and getting an educational psychologist assigned and involved. I think it can be very difficult as in some cases it's not unheard of for children on the spectrum to be able to hold it together in school, but 'vent' at home. Difficulty is that if a teacher is looking after a class of 25, then they're generally concerned with the needs of the class as a whole, rather than individuals - however, if class sizes were smaller or there was more than one adult in a class, then there is perhaps more scope to pick up on subtleties or idiosyncrasies which might suggest something isn't quite right. I really think that picking up on the signs is a shared responsibility between a number of people - parents, head/teachers, educational psychologists, gps, specialists, etc.

 

Training teachers, etc all boils down to time and budgets, sadly, but I do think that because ASDs appear to be becoming more prevalent or at the very least are more widely recognised, that recognising children who may have SEN should be incorporated into training.

 

I've heard of two cases in Scotland a few years ago where parents were successful - haven't heard about the multitude of the ones that weren't though! I think it would be incredibly difficult to go through this process. If your daughter was statemented, etc and the school/LEA failed to provide support, and there was paperwork, etc it could be a different matter. Again, difficulty is that an LEA have a part to play, but they're only part of the jigsaw.

 

Totally understand how you must be feeling. Definitely something you should take advice on - could start with NAS website (in Scotland, there's an organisation called Enquire, but I don't think they're relevant for England - I'm sure there must be an equivalent organisation).

 

Best wishes

 

Caroline

[Kathryn]

I think educational negligence is not easy to prove - or more people would do it, I'm sure!

 

IPSEA has some information on this:

 

http://www.ipsea.org.uk/phelps.htm

 

Your chances are probably slim, especially given the time lapse. I know how you feel though. I'm pretty angry that my extremely intelligent, extremely keen daughter left school a nervous wreck and with no qualifications due to needs which went unrecognised for 10 years.

 

k x

 

 

[lynne]

 

 

Teachers should be able to pick up if the child is not right. Than they should bring in other people to investigate. They should not be able to diagnose ASD, ADHD etc etc

 

Alot of children are just labelled as difficult and this label follows the child. through the years.

 

I can remember going into a class with my child when he was in year 1. There was a child who was not right. But this child was labelled naughty. Every time I went in he would sit by me and be no trouble, even though I was in the classroom to help with my child. (My child had been diagnosed ASD for one year, I had no special training but I could see something was not right).

 

Three years later (still labelled as a difficult child) a fantastic teacher decided the boy was definately not normal and need to see an ed psy. 12 months later he was diagnosed ADHD. Yet this child has been though years 1, 2,3,4.and finally in year 5 he got his diagnosis.

 

 

[vicbee]

Hi

 

Just reading through your replies. Its not something that im considering doing as having worked in the legal profession - i know how difficult these things are to prove - I just was wondering if anyone had been successful. The ###### ive been through lately leaves me with very little energy to pursue any sort of legal battle anyway!

 

I do get angry about her old school playing a part in all of this because looking back (hindsight's a great thing) - the signs were always there. But then i stop myself and say - well, there is nothing I can do about that now - but the inadequacy I have felt over the years is hard to bear sometimes but becoming easier to handle now that i know that there is a reason behind my daughter's behaviour and has been for all these years. Doesnt stop me feeling ###### about the way ive handled her over the years though.

 

anyway, im sure if there had been success with claims, there would be a dedicated section to it on this forum along with education, medication... LITIGATION!!

 

Thanks for your replies.

 

Vicbee

[Ian Jordan]

Whilst not the same it establishes the principal - look up the Phelps case (Phelps v Hillingdon council)

Its dyslexia (this is not recognised well in schools either!!)

 

Teachers have (with some exceptions) little training in special needs. Whilst it is unreasonable to expect them to be experts - they should be expected to recognise when a child is experiencing educational problems - and they should set in motion appropriate assessments. Maybe in the future.........

 

 

[vicbee]

What was her academic progress like? Should she have been on School Action or SA+? It's when they've been assessed by an Ed Psych or SLT and they've failed to pick up on something that you get a case for educational negligence.

 

 

My daughter was on an IEP from around Year 3. i didnt really know what this was - in fact i didnt know that was the name for it until recently - i just went in occasionally and signed a form. This was for help with her literacy and numeracy which never seemed to improve and in fact now seems worse than ever. i remember going in to parent's evening in year 2 and her teacher said to me "well look at this colouring in - the cow is blue - cows arent blue". (i thought to myself - actually - in the tv programme 'Blue Cow' - they are!! this was in front of my daughter too - unbelievable - how to knock a child's confidence hey! that particular teacher did nothing but produce negativity in that meeting. I left there devastated that day but made a stand and went back in the next day and asked to point out something positive about my child. she was rather sheepish. Every parents evening i was told how she was so immature, doing stupid immature things to the other kids, like hiding there pencil cases and lunch boxes. she was falling way behind her peers. she played on her own at break time. she would talk to the teachers at playtime instead of playing with her peers. i could go on but its pointless.

 

I just think that so much heartache could have been avoided for us both but hey - we are getting there now. Now that I understand my daughter - we have become so much closer and thats only as a result of our learning curve.

[Karen A]

Hi.I could not work out from your post how long ago your DD was at the school that you would want to take legal action against.However if it was several years ago it is worth bearing in mind that AS is a fairly new diagnosis.There was very little knowledge about it until recently.So it would probably not be reasonable to expect school to have identified an issue that so little was known about.

I think one of the main issues now is funding.If teachers do recognise that a child may have SEN there is currently little funding for them to provide support.Regarding the ASD dx that is an issue for the NHS and there are plenty of children and adults here waiting unreasonable lengths of time or unable to access assessment due to lack of funding.Karen.

[Sooze2]

I think that its our job as parents to point out these things to the teachers rather than the other way around really. I know our school really accentuates the possitives and is very reluctant to say anything negative because that is their policy. Also a lot of parents refuse to see that their child is less than perfect, I heard one parent refusing to take their son for a speach therapy assessment and even ripped up the letter even though the teacher thought it was needed!

 

Usually its the GP's who do the referrals isn't it? I was luckily because I did it all through school (rubbish gp!) but it did take a lot of hassling on my part by me going in and saying what a nighmare he was at home and told them what he was feeling about going to school etc etc.

 

The teachers are there to teach, our class sizes here are huge - my son has 37 in his class - so the teachers have a lot of kids to deal with without noticing what individuals are up to all day long.

 

I feel your pain but can also understand why the teachers don't pick these things up.

 

Good luck what ever you do - go with your insticts.

[mike charles]

Such claims are notoriously difficult to succeed in. A number of hurdles exist not least the first being that teachers are not medics and as such may not be expected to make such a diagnosis. However that is not to say that where a child exhibits significant social problems or use of language difficulties that a school should ignore the problem. There is of course a statutory procedure to follow in cases where special needs are suspected. The first step along this path is to request a statutory assessment from the local authority, a request which could be made by the school or the parent.

 

Another problem with negligence claims of this type is that legal aid is very difficult to obtain, although some exceptional cases are still being granted. Furthermore, to embark on a legal process means that there will be an exposure to costs, including those from the otherside. Such an eventuality can be very destructive.

 

Many professionals may advise that in cases where a child is young, there is every chance that with the right help the child will make progress. Whilst ASD can be a barrier to learning, with the right support in school it should not be treated as a barrier to educational success. I wish you and your child every success but please think carefully before embarking on such a process and take the right advice.

[robintungate]

I think here I would contact ACE and IPSEA, so see whether there is any chance of a SENDIST claim.

[southwalessunshine]

I'm not sure it's reasonable for teachers to recognise all types of ASD. My daughter is undergoing dx for aspergers and after 6 yrs of counselling and anger management I only picked up on what I think is aspie traits after my on was recently diagnosed. i could have every right to complain to the school as they've been involved with my daughter's counselling and problems and also her counsellor as he's spoken to her for 6 yrs and it's taken me to broach the subject of aspergers. I spoke to my son's teacher when he was diagnosed and although she was surprised, once she's thought about it she wasn't, as he fits the bill for high functioning aspergers. The teachers have a class of x amount of kids, some full of life, some not, some confident, some nice, some not so nice etc etc. They badly behaved Nt kids and the kids with ADHD etc will be the one's the teachers will pick up on straight away, the high functioning aspies etc will be left by the by as they're quiet, great doing their worketc. My son is doing great at school, is doing maths for the yr above him and academically only has a real problem with hand writing. Many NT kids could fit the same bill. Now his teacher is aware she see'shim struggle with friendships, communication etc. m daughter is now realising why she can't make friends and why sometimes she offends the one's has, she failed most of her mock GCSE's even though her target was A's and B's but not one teacher thought it was because of a problem. I did though and now I am acting as though she's had dx in my head, i've approached the school and they're helping her so she doesn't go into meltdown when se sits the real GCSe's in May.

personally in my own situation i would never dream of taking action against the school or counsellor for not reognising AS as I feel now we know there's a problem we can unite and help my kids get their persoal struggles resolved. it's a hard thing for even a parent to rcognise in some instances and the drive put into suing or complaining could be better utilised in helping the kids.

I hope I haven't offend you i anyway, it's just my opinion on my own circumstances x

[robintungate]

I would still take some free advice on this from IPSEA, there is recent case law about this

[bid]

Just another thought...

 

I was reading a thread on another ASD forum a while back where some people were criticising teachers for daring to suggest to parents anything might be 'wrong' with their child!

 

I feel in many ways that teachers can't win

 

Bid

 

 

[Lisa40]

Hi - just a quick one after my last post. I was wondering if anyone knows of anyone who has brought a successful claim against the LEA/school for not recognising ASD. My daughter battled through a primary school for 5 years (until we moved to Spain) with social problems and other things yet no one picked up on it. The school she attended is well known for being supportive of academic and sports minded pupils. I have gone for 12 years thinking that my child was 'unpopular, a pain in the backside and basically thought I was a terrible parent because i could not handle my daughter and we didnt have a bond because of the way i was with her. I had never heard of ASD until 6 months ago. I feel very strongly that teachers should be trained to recognise the symptoms. Too many children are not receiving the support they need from an early age. it makes all the difference to how a child can learn even through his/her difficulties - if they get the support at an early stage.

 

I look forward to receiving your responses.

We are actually in the process of speaking to a solicitor about this. My daughter is 15 and has only just been diagnosed with Aspergers even though she was diagnosed with dyspraxia 8 years ago. She has been in 5 schools over 2 years and her secondary education has been difficult. She will be 16 next month. We have tried both private and state education. We have tried small and large schools. When she was 11 and started secondary education we had her in the state system and had meetings with them prior to her starting. At that time she had problems settling in school but we didn't know she had Aspergers. We always knew something was wrong. She would refuse to go to class and flee to the toilets to hide. She didn't like going into school at the same time as the other pupils. Whilst she made friends easily she fell out with them frequently and was unable to hold friendships. She wouldn't cooperate in school and was not rude but would refuse to take off her coat or get her books out. We think this was because she was struggling academically and we had already supplied the school with an educational psychologists report, which we had undertaken privately and which stated that she also had a visual memory and visual attention disorder. Whilst her IQ is high and verbal reasoning high as soon as she needed to copy from the board or work out problem solving on paper, her work deteriorated. TGhe school were aware of her problems but put no action plans into place and she was frequently pulled out of class and put into isolation. She also frequently froze when spoken to and would go into herself. All signs that I now know are that of Aspergers "flee, fright, fight". I asked to have my daughter assessed and met with the educational welfare officer and educational psychologist and all I got was a lecture on why had I put my daughter into private education for primary education. She then wrote that my daughter was "precious" and a punishment plan was put into place should she not do as she was told. During this time we were also seen by CAMHS, who completely failed us as my dauaghter refused to speak and it was left that there was nothing they could do and they said she didn't have a mental health problem but I was sure something was wrong.. After two years we felt this was not the school for her so we put her into an independent school where again I met the special needs person and we also had an up-to-date report done but she lasted two terms there as they were more worried about her academic achievements, which were few then her problems and again she was frequently falling out with people.

 

After three more schools, she is no longer in education. She refuses to go to school and her anger is sometimes difficult to manage. We had her see a psychiatrist privately and after a year she was diagnosed with Aspergers. We were referred back to CAHMS and they havev assessed her again and now agree with the diagnosis. She is not being educated at present, we have had educational welfare to home visits, we have had a person come round who decides on whether she should be home schooled and as she is not co-operating as she won't accept that she has a problem, they won't educate her. The fact that she is 16 next month leaves us to believe that she has slipped through the system as it is easier for them to leave things alone then do things. We are actually dispairing about her future. She won't have any GCSE's, she doesn't leave the house and her anger and moods are unbearable at times, although they pass quite quickly. On one hand she is very immature and the other she can be quite grown up.

 

Anyway, that is the background. We have consulted with a solicitor and he feels we have quite a strong claim BUT is can be quite costly, as we now need an independent expert witness and with solicitors fees, etc it will mount up. We feel that whatever resources we have we need to put them towards helping our daughter.

 

I feel the system has failed us completely. All the schools have done is actually punish her for her problem and it was an easier solutiong to get rid of the problem (in the private system) rather than find a solution. We also found that in the state system. We have had no support and we are still struggling with what to do and no-one can give us any solutions regarding education, help or her future.

 

A lot of the problem is that my daughter will not accept the fact that she has Aspergers. She refuses to talk about this. As soon as she heard she was diagnosed with Aspergers she looked it up on the internet, saw the word autism and read no further and refuses to. I feel that if this had been diagnosed earlier we could have put certain tools into place. If anyone has any solutions on how to get her to accept that she has a problem but it is not the end of the world, I would appreciate any input.

 

Sorry for the ramble.

[Kathryn]

Hi Lisa,

 

Welcome to the forum.

 

Your story sounds so similar to my own - you could almost be talking about my daughter. She also slipped out of the education system after a late diagnosis and was completely disabled by severe depression for a couple of years. She found more support and understanding in the further education system and although she still struggles, she will hopefully get her first formal qualification at the end of this academic year. So although it's too late to salvage anything form your daughter's school years, don't give up hope that she will return to formal education at some point. It might be good to look at your local FE college and see what they have to offer.

 

You may want to start another thread of your own, as there is so much in your post, but just to say on the subject of making a claim for negligence - as you say, the process is costly and with no guarantee of success, and it may be better to save your resources to benefit your daughter directly. I think also there comes a point where one has to put the past behind one and move on: the future has enough challenges of its own.

 

It must be difficult to work out how to support your daughter when she refuses to accept the diagnosis. Soon she will be treated as an adult and agencies will expect her to be fully involved in any decisions about her life: which makes it even trickier for you. There are very good biographies written by women with AS - if you left one or two lying around, would she read them?

 

My daughter won't accept the aspergers label either (although she used to) and prefers to have her difficulties individually acknowledged. The college has been happy to go along with this and they have actually listened to what she says about her own support needs, and responded fairly well.

 

I hope you find a way through this, we're here to support you.

 

K x

Edited February 15, 2009 by Kathryn

[madme]

As a mum I have perhaps a more emotional reaction to this- as a lawyer I urge caution. A specialist solicitor or barrister (by way of direct access) is vital.