Any advice greatfuly received

[daniels-mum]

Hello all, I hope everyone is well, havnt posted for a while as lots of family stuff going on,

 

I have a question that I was hoping for some advice with,

 

My situation is that I applied for a statement for my son last year, this was refused and a note in lieu was issued.

I appealed this and it finally went to tribunal in January this year. The tribunal found in my favour and ordered the LA to issue a statement.

 

The final decision was sent to myself and the LA around the end of Jan, this gave the LA 5 weeks to issue the proposed statement.

 

The LA sent a proposed statement dated 18th Feb. This was rubbish and basically just a cut and paste of the note in lieu, it was even writen as DS was still at primary school, even though he transfered to high school in Sept last year, he is yr7 now. As per the normal timescales I had 15 days to reply and send any objections.

 

I sent the inital form back saying I didnt accept the statement about a week later, although I cant remember the exact date, and on 12th Mar I sent an email with all the changes I want to part 2, 3a and 3b. I have more or less re written the whole thing as theirs was rubbish and I said in the email that what I had sent was how I wanted parts 2, 3a and 3b to read and if we could agree these changes I was happy to finalise the statement. None of the changes I have requested are uneasonable, the SENCO at DS school is aware of them, and whilst not particularly overjoyed with them she has no problems with what I have asked for, I should probably add at this point that I am leaving DS where he is at this time as he seems to have settled there, although still requiring much support, so part 4 isnt a issue. This was all sent by email to Responisble Officer on 12th March, later that day I received an out of office notification from said person and that they would be back in the office on Monday 15th March, fair enough I thought, I will probably hear something next week.

 

Fast forward to 23rd April and I havnt heard a thing, no letters, emails or phonecalls. On this date I send another email to responsible officer asking what is happening. A few hours later I get an out of office reply saying they will be back in the office Monday 26th April. Okay I think, they will surely be in touch next week.

 

Fast forward again until today 8th May, still no letters, emails or phonecalls. Am a right in thinking they should have finalised the statement by now, or at least been in touch to discuss the changes I have requested. I have heard nothing whatsoever since I sent my changes in on 12th march apart from the out of office notifications.

 

I am considering writing a formal complaint to the head of LA, but I just wanted to check where I stand before this, as I dont want to be accusing them of breaching any legislation, codes of practice etc if they aren't.

 

Sorry for such a long post!!!!

[Kathryn]

It sounds as though they are well overdue - they can delay issuing the statement for very specific reasons but none of those appear to apply here, from what you've said, so they could be in breach of the law.

 

As well as writing to the Director, cc your letter of complaint to the head of Legal Services at your LA as well.

The Local Govt Ombudsman can investigate LA malpractice - they usually require you to have gone through LA complaints procedure first.

 

If all else fails, legal clout may be necessary. You could get a solicitor to start judicial review proceedings - one letter to the LA could well be enough to make them comply.

 

K x

Edited May 9, 2010 by Kathryn

[Sally44]

Can you go to judicial review if a first statement has not been finalised yet??

You could always go down to the council yourself (find out where their offices are as it may not be part of the actual council buildings). If the person is not in you can always hand the letter over to whoever is there and ask for a receipt of it. As already mentioned the LGO can deal with adminstration complaints. And a general letter of complaint may help.

IPSEA are probably the best people to advice on the legal side.

When the LEA were delaying finalising my son's statement our solicitor wrote a letter to them asking them to finalise the Statement so that we could go to tribunal. We were at a stage where the LEA did not agree to some aspects of the Statement. In that situation the LEA has to finalise the Statement (with the wording they agree to), and then you appeal to tribunal.

So in your case a letter along those lines, with a 7 day timescale, might be useful ie. finalise the statement within the next 7 days. If the LEA does not agree your wording they will finalise their version. That is when you appeal to tribunal. The fact you are willing to go to tribunal may push them to finalise your version. But there is the real possibility that they don't and they finalise the weak LEA version they sent to you.

Eventhough you may not want to go to tribunal, starting the process means you will have placed pressure on the LEA and at any time the LEA can decide to agree to your version of the Statement. It also means you are in the timescale of the tribunal appeal and so are not wasting time hanging in limbo.

But if you do end up appealing to tribunal make sure you stick to the timescales and send in your evidence on time.

I think the ACE website also has a useful page about proposed/draft statements and what they should contain. So make sure the statement is watertight and does specify every need in section 2 with recommendations in section 3. And section 3 needs to be very specific with hours of support or therapy, staffing arrangements, therapy input etc. That information you can get from the LEA/NHS reports they produced. If they have been very 'vague', then you can phone them and ask them for more specific information.

[call me jaded]

As Sally says, the last thing you want is for them to finalise the weak statement, so maybe write to whoever runs the SEN panel pointing out that the statement was due to be finalised on x date and still hasn't, can you please have a date by which this will be done as you are very reluctant to incur yet further expense in solicitors fees.

[Grace]

Dear Daniel's Mum,

 

I think Kathryn has given you the right advice already, but just one small thing:

 

You said: 'if we could agree these changes I was happy to finalise the statement.' Could they read that as saying you are not happy to finalise if they don't make the changes?

 

So, personally I would write and complain, because they have not come back to you, but I would make it clear that you want the statement finalised immediately and you will exercise your right of appeal, if the changes you have requested are not included.

 

If you can get the e-mail address of the Director of Children's Services, I would e-mail him/her and also attach copies of your previous e-mails to show what you have asked for and when you asked for it. It will demonstrate their lack of response. Might not be a bad idea to include the tribunal's decision too?!

 

It might also be an idea to send hard copies by recorded delivery.

 

My solicitor's view was always to finalise asap and THEN discuss what you want, because they are then under pressure; LEA's love to string things out by making small concessions and keeping the negotiations going for months - I think (?) that every time you write with more 'representations' it legally buys them more time - Kathryn can correct me, if I'm wrong, but I do think the law allows for that? However, in your case I agree that does not apply, as they have simply ignored you!

 

The very best of luck - I really hope you get what you want without having to begin any more legal proceedings.

 

Grace/x

[Kathryn]

Can you go to judicial review if a first statement has not been finalised yet??

 

A finalised statement is not a prerequisite for judicial review, which is the process by which a court looks ay a public body's failure to exercise its legal duty - in this case it would be the LA's failure to comply with the legal timescales for issuing a statement. But you would need to talk to a solicitor specialising in education law.

 

I started JR proceedings against my LA (different issue but related to SEN education) and it was VERY effective - boy did they jump to attention when they got that initial letter. I'm not litiginous by nature but it was the best way forward. After weeks of being ignored, I had LA officials phoning me before 7 am in the morning so concerned were they to talk to me in order to resolve the situation.

 

The law does allow for ongoing representations and meetings which can string out the process indefinitely. I'd agree with Grace - the priority is to get the statement finalised ASAP - whatever it looks like. You can then continue to negotiate after putting in your SEND appeal.

 

K x

Edited May 9, 2010 by Kathryn

[daniels-mum]

Thank you everyone who has replied, I havnt had chance to do anything about it this week due to family illness,

 

I have drafted a complaint letter, if anyone has time to read it I would welcome any comments, good or bad, this is all new to me!!

 

Before I send it I am going to ring SENCO at school tomorrow to see if they have received a final statement, if they have I know it is just me, but if they havnt received its obviously a problem with the LA. Strangley I received a letter from school on Friday inviting me to annual statement review on 8th Jun, even though havnt even got the statement yet, I am assuming its a typing error and really its just a progress review.

 

Anyway here is the draft complaint letter,

 

 

"I am writing to make a formal complaint about the way my sons case has been handled by the SEN Statutory Assessment and Provision Section of ***LEA.

 

The caseworker throughout has been *****.

 

The circumstances of my sons case are as follows,

 

D is 12 yrs old and is in Yr 7 at ***** High School, after transferring there from ***** Primary School in September 2009.

 

Last year I requested a Statutory Assessment of D's special educational needs. This was supported by ***** where he was at the time, a Yr6 pupil. *****LEA agreed to proceed with the Statutory Assessment, but decided not to issue a statement, however, instead issued a Note in Lieu. I disagreed with *****LEA decision and submitted an appeal to SENDIST. The hearing took place in January this year and the tribunal panel upheld my appeal and ordered *****LEA to make a statement. Despite my not agreeing with LEA*****’ original decision, I do respect that you were within your right to refuse to make a statement and my complaint is not about this decision.

 

I am however, appalled at how D's case has been handled since the decision of the tribunal in January.

 

The tribunal hearing was on 21st January and written confirmation of their decision to uphold my appeal was received by *****LEA on 1st Feb.

 

Approximately three weeks later I received a draft statement through the post which had *****Primary School named in Part 4. This was firstly a breach of chapter 8.42 of the Code of Practice and secondly very unprofessional as he had left there 6 months earlier. I can only assume the proposed statement was a cut and paste of the Note in Lieu which had not even been proof read as it was practically identical.

 

As requested I completed and sent the SEN23 form back within 15 days, ticking the box I did not accept the proposed statement and requesting further information from *****LEA. I also stated that I was unsure of the placement at that point. This was because I was awaiting a visit to the Resourced Unit at ***** in the following week and would make my decision then, regarding Part 4. I fully admit, at this point I did not realise I had to send my proposed changes with the SEN23, I had intended submitting them the following week at the same time as I would decide where I would be requesting to be named on Part 4 of the statement.

 

On 10th March the following week I visited the resourced unit at *****, this was invaluable and helped me reach the decision that, at this time the best place for D was his current school, *****, and therefore I would not be seeking any changes to part 4.

 

Caseworkers assistant, phoned me the next day, requesting that I submit any changes I was requesting by email as the statement needed finalising as soon as possible. I did ask what would happen if *****LEA disagreed with the changes I was requesting, and Caseworkers assistant assured me that Caseworker would contact me to discuss this, should it be the case.

 

On Friday 12th March I emailed Caseworker the changes I would like making to Ds draft statement. I received an out of office notification saying Caseworker would be back in the office on Monday 15th March. After my conversation the previous day, I was of the understanding that the statement would be finalised with my changes, and if this wasn’t possible someone would be contacting me to explain why and discuss my requests in further detail.

 

I have received no further communication by letter, email or phone since 12th March. I still have no idea if the statement has even been finalised.

 

On 23rd April I emailed Caseworker again, enquiring about the status of D’s statement. I again received an Out of Office email stating Caseworker would be back in the office on Monday 26th April. At the date of writing this letter, I still have not received any reply by email, letter or phone.

 

 

In its handling of my sons case, *****LEA has shown a complete disregard to the Special Educational Needs Code of Practice, Chapter 2, Working in Partnership with Parents. I make particular reference to Paragraph 2.7, Professionals should recognise the personal and emotional investment of parents and be aware of their feelings, and Paragraph 2.13, LEA’s need to ensure that they are accessible, welcoming and value the views and involvement of parents. Clearly *****LEA has had very little regard for the above when dealing with my sons case.

 

Due to the fact the statement is now overdue and no one has contacted me to discuss otherwise, I request that it be finalised incorporating my proposed changes in the next 10 days.

 

I hope to receive D's finalised statement in the post very shortly. If this does not happen I will be obtaining legal advice with regards to requesting a Judicial Review of the way my sons case has been handled.

 

I have enclosed copies of emails I have sent to Caseworker and copies of the Out of Office notifications received, I also enclose a copy of the tribunals decision from January this year.

 

Throughout this whole process I have been nothing but reasonable and polite in my dealings with *****LEA, but am simply at the end of my tether now.

 

Yours Sincerley"

[Yossarian]

I have been through a similar situation in that I disagreed with the proposed statement, and then the LA issued a (basically) identical final statement anyway. If you know you are going to disagree the content, it is worth getting the LA to issue as soon as possible, because only then can you appeal to tribunal. The rest is just delay. This was the advice I had from a legal rep and a friend who has a good knowledge of the SEND system.