Educational Negligence?

[emmasmum]

Anyone know about this? Can my daughter get legal aid (she is 14) to make a claim?

 

Primary school refused to acknowledge or accept that she had social difficulties and refused to do circle of friends and the like. EP (last year) said she was highly unlikely to have Aspergers. In November she was diagnosed.

 

She is underachieving - they have refused to do a statutory assessment as they feel her school are meeting her needs.

 

I think if it had been identified and things put in place earlier she would have achieved better and would not be suffering from depression now.

 

Any advice welcome,

Thank you

 

Carol

[Feather]

Hi Carol, we have had a similar situtation with our son. He is nearly 16 now, and diagnosed last year. We had the same at primary school, not recognising anything. You can put in a request for statementing yourselves as parents. We did this and got one straight away. School had done it too, but we didn't trust them, so put in our own request. We got a brilliant report from the ED PSYCH, and as a result of that, he got his statement within 3 months. He was 14 when he got his statement. We then got his diagnosis nearly a year after that. We didn't want him to go through his GCSE years with no support. How does she feel about her diagnosis? My son was very down and depressed, and had alot of meltdowns. He has come to terms with it all now, and has nearly accepted it. He is going to college in September. If you contact the National Autistic Society and speak to them, they will give you numbers for SEN solicitors in your area, and you can get 30 mins free phone advice. Your daughter can get legal aid, as we have also sought advice for the same thing. It is best to speak to the solicitor though, and they can point you in the right direction. Hope this helps, and we know what you are going through.

[Sally44]

I agree, ask for a statutory assessment yourself.

If the LEA refuse you can appeal.

Get as much evidence as you can together eg. anything from the doctor about her depression, anxiety etc. All IEPs and targets and progress made. Ask your GP to refer you to a Multi disciplinary team that can assess and diagnose ASDs (the health route can be totally different to the school route).

 

Why do you feel she is underachieving? Do you feel it is difficulties associated with an ASD, or associated with language or associated with a specific learning difficulty, or a combination of all three?

What subjects is she struggling in eg. literacy, or maths or both?

Does she have a spiky profile eg. is she good at some things and poor at others?

 

At what stage of the SEN process is your daughter. Is she at school action plus? If so she should have been seen in school by professionals and she should be getting regular IEPs (my son gets them termly).

 

I am having similar issues about school believing my son is making adequate progress and therefore are refusing to call in the Ed Psych. And I have a Statement! So when you get to the Statementing stage you need to either make sure that your daughter attends a school that meets her needs (if she has a speech and communication disorder then an independent school for that diagnosis - because in those school all the professionals are in-house). Or you need to get input quantified and specified for EACH and every need and professional including the Educational Psychologist. However, what I am finding is that if your child attends an LEA maintained school, at annual review, those professionals will put together the argument for why they can now reduce their input and amend the Statement accordingly. Which means you have to appeal any changes to the Statement. Or if new needs are recognised you need to ask for those to be included at the Annual Review and if they refuse then you have to ask for a re-assessment from the beginning.

 

It is very frustrating. Obviously I don't know your daughters situation. But the best option to be aiming for would be to get written reports and evidence of all her needs. If the LEA/NHS ones are not sufficient then you may need to get your own private ones done. Then those reports should prove that the LEA does not have any maintained schools that can meet those needs. Look for an independent one that can and which goes up to age 19 and aim for that, going to tribunal if needed and appealing if you don't win at tribunal. A long hard slog.

 

The only other way is to pay for private tuition by a specialist teacher and therapies (speech and language therapist, and occupational therapist if necessary) yourself.

 

 

[emmasmum]

We have requested a statutory assessment in light of her diagnosis but it was refused as lea said the current school is meeting her needs and a statement wouldn't add anything.

 

The diagnosis was made at CAMHS, some 18 mths after our GP referred us. We had to see an initial person, then a nurse specialist before we got to see the Psychiatrist, who was prepared to diagnose her on the first meeting (but I asked for a proper assessment to be done anyway).

 

Emma had a spiky profile when she was screened for dyslexia at age 5. This resulted in a referral to EP who said she was on 73rd centile cognitively - she did very well (off the scales) in verbal similarities but poorly on sequencing.

 

She also has auditory neuropathy, we suspect auditory processing disorder (although that is yet to be diagnosed) and joint hypermobility.

 

The depression was diagnosed by the GP. She was already on the CAMHS waiting list for CBT for low self esteem and confidence which is due to start in April.

 

She has a poor attendance rate but hasn't fully refused school. She has migraines and stomach aches which I believe are anxiety related.

 

School were meant to set up weekly mentoring sessions - she's seen her mentor twice since September. She's on school action plus because of involvement of the advisor for hearing impaired.

 

I'm not sure when the two months runs out to appeal - I'll find the letter tonight.

 

Thanks

 

Carol

 

[Kathryn]

Hi Carol.

 

To answer your original question, I think educational negligence is difficult to prove and success is rare. See the information below, taken from the IPSEA site:

 

Educational negligence

There have been some well-publicised cases of former pupils winning damages where their education suffered because a professional has given poor advice, for example. However, damages were generally modest when set against the cost of taking a case so the Legal Services Commission now rarely grants legal help or representation (formerly legal aid) for these cases. Few individuals can afford the high costs of financing an educational negligence case themselves.

 

Negligence arises where it can be proven on a balance of probabilities that:

 

a legal duty of care exists

the standard of care reasonably expected is breached (i.e. they acted in a way that no other professional would have acted at the time) and

damage (injury or loss) is suffered as a direct result. You may need strong evidence from professional witnesses to show that potential earnings have been affected.

Time limits

Three years from a young person’s 18th birthday, or

Three years from the time the person injured knew about the negligence or breach of duty and the harm or loss it caused if that is later.

 

Have a look at the rest of the IPSEA section on complaint routes for different educational issues - you may find another option more beneficial and less costly at this stage.

 

http://www.ipsea.org.uk/What-you-need-to-k...o-complain.aspx

 

I don't think litigation is the answer at this stage - just my opinion - but I sympathise with how you feel. I am pretty angry that my extremely intelligent daughter left school with no qualifications and a severe breakdown, due to unment needs, and I have more than once considered going down the legal route, before deciding that I could channel my time and energy more effectively into helping others avoid the same situation, and helping her overcome the poor deal she got at school.

 

I agree with others, if you are sill within time limits to appeal against refusal to assess, go for it. LEA's routinely turn down such requests nowadays, so don't give up. Your daughter is still young enough for things to be turned around. I do know of others who have got a statement in their mid teens, and a better education as a result.

 

K x

[Sally44]

At school action plus was your daughter also seen by a SALT and educational psychologist?

So far she has difficulties with:

dyslexia - is this recognised as a diagnosis within school?

AS

auditory processing problems

High cognitive ability - spiky profile

hypermobility of joints - does she have physio?

Migraines and stomache aches - anxiety and stress

Problems with sequencing

Depression

 

The above is complex and requires a Statement. And each and every need has to be identified and it has to cross reference to section 3 to explain how that need will be met in school in terms of hours of support and staffing arrangements.

 

What extra help does she currently receive in school either in terms of extra help from a TA, or ways they help with structure/routine, ways they help with auditory processing difficulties etc.

 

I would be seeking for the SALT to do a full assessment of expressive and receptive speech, comprehension, narratives, inference, literal interpretation, the whole works as she may also have a spiky profile with speech and language. My son ranges from advanced in some areas to worse than severe in others.

 

It would be useful to go to the doctors and ask for a referal to a paediatrician about her depression migraines and stomache aches. Is she having a disproportionate amount of time off school due to this? When you see the paediatrician tell them that your daughter has a diagnosis of AS and her needs are not being met in school. She has depression and you feel the migraines and stomache aches are due to anxiety and stress and not a medical issue. If the paediatrician agrees ask them to write a letter to school with a copy for you stating that this is due to anxiety and stress. This letter will be useful because it proves that it is having a negative effect on your daughter and that nothing is currently being done about it in school.

I have got a similar letter as my son was regularly being sent home due to vomitting, headaches, stomache aches and the school policy was that when a child is 'ill' they have to be at home for 48 hours. He was virtually doing a 3 day week.

 

If your daughter is smart, not only is her poor performance a reflection that her needs are not being met. It is also not demonstrating her potential. Has there been any remediation eg. have they given her extra 1:1 time with a specialist in dyslexia to see if this improves her progress? And remediation, using the right approach and staff should be for at least one academic year. For some SALT programmes that can be two years. But if your child makes improvement with input that is your evidence that she needs that input. And school cannot say what 'adequate progress' is until they know what her real potential is for each academic year. I am having the very same problem. But if a child with specific learning difficulties does not get the help they need then they become a self fulfilling prophesy.

Have a look at the Jim Rose report on direct.gov. In it he says that EPs and SPLD teachers can and should diagnose dyslexia and the severity of it. Then have a look at the CoP. It does mention 'specialist teaching' for certain difficulties.

 

If your child has such complex needs that they need a whole school approach of specialist teachers/TAs and things like THRASS, SALT and OT on site etc. Then that is what you need the evidence for. If she is going to need highly differentiated classwork, curriculum, exams and life skills etc then you need to get the reports that will clearly state that whatever mainstream schools the LEA has are not able to meet her needs.

If your daughter is currently mainstream only, what other schools does your LEA have. Ask them to send you their list of all schools - maintained, independent and approved. Go and visit the LEA maintained ones that the LEA may consider for your daughter if/when you get a Statement. Is it able to meet her needs. Do they have places.

 

The Statementing process takes 26 weeks from start to finish. If the proposed Statement still is not identifying all needs with recommendations quantified and specified, then you ask the LEA to finalise the Statement and appeal to Tribunal. That usually takes a further 6 months before the tribunal date. Then tribunal take a couple of weeks to finalise the Statement to make any changes they recommend including the placement. So if you are going to appeal you need to do it now. If you miss your chance this time you have to wait a further 6 months before you ask for an assessment towards a statement again.

 

Organisations such as IPSEA/ACE/SOSSEN.org are all very helpful and can give you the legal interpretation of the SEN process. Do not automatically believe what the LEA tells you. As Karen has already said, many automatically refuse Statements just to see how many of those parents are prepared to appeal.

[Sally44]

I also forgot, but if she has a diagnosis then she will automatically have difficulties with speech and communication and social communication and interaction - because you need to have significant clinical differences to even get a diagnosis.

Therefore your daughter will need input from a SALT with regard to social skills, social interaction etc and her speech and language MUST be assessed to know what her areas of strength and weakness are. But this is an area that is often overlooked. It is absolutely necessary because humans are social animals. We live in a society and your daughter needs to have skills to function in these environments.

 

Also does your daughter have sensory issues? If so google sensory integration disorder and ask your GP, or the person who diagnosed your daughter to refer you for assessments to OT. It takes over a year, but that is another area where she should be receiving a programme. If you are told that OT is not an educational need, that is a lie. If you cannot access classroom learning or form social interaction or participate in PE etc due to sensory needs, then that is educational. And Case Law takes the broad interpretation of education which is 'to prepare a child for adult life'.

[emmasmum]

Hi thanks for all the advice.

 

Sorry, Emma doesn't have dyslexia. She was referred to the EP due to the spiky profile but they didn't diagnose dyslexia, just said she was on 73rd centile cognitively.

 

She saw EP again last year - they said she should do circle of friends and social skills lessons in school - this hasn't happened. They also said she was highly unlikely to get a diagnosis of Aspergers from CAMHS.

 

She saw SALT as part of the ASD assessment but I was very disappointed with the assessment. It basically consisted of a chat with Emma and I and a few excercises for Emma to do. She scored very badly on verbal problem solving.

 

Emma has TAs in some of her classes but I'm not sure they're specifically there for her. She dropped a GCSE to do "study skills" which I thought would help her with the tools she needs to study effectively but it seems to just be helping her with her homework, if she remembers to take it!

 

I just found the letter and I have about 10 days left to appeal against the decision not to statement. Does it matter that my parental evidence was sketchy in the request? School provided alot of info but I didn't give as much detail as I would have done if they'd have decided to do the statement. The letter had to be sent a few days before I left to visit my Mum in Australia who'd just been diagnosed with cancer.

 

Thanks again for your advice,

 

Carol

xx

[Kathryn]

Hi Carol,

 

You can bung the appeal in ASAP with as much evidence as you can muster, including, as a minimum, all the advice that was submitted for the statutory assessment. Don't worry what you said, or didn't say, in your parental evidence, you can now expand your reasons and there will be plenty of time to submit further evidence

 

You have to fill in the appeal form which you can download here, the actual appeal form starts on page 19 but the rest of the booklet is essential reading.

 

http://www.sendist.gov.uk/Documents/FormsG...ookletnov09.pdf

 

You'll also find IPSEA's Refusal to Assess self help appeal pack extremely helpful if you decide to proceed.

 

http://www.ipsea.org.uk/AssetLibrary/Downl...sspack_v2.1.pdf

 

Your decision entirely, but if you let the deadline go by, you'll lose your chance to appeal, so starting the process at least keeps your options open, whilst putting pressure on the LA.

 

K x