Maybe Judicial Review

[Sally44]

Bearing in mind that my LEA decided to re-assess my son's Statement because they said he had 'new' diagnoses and they wanted to ensure that the provision within his Statement was right. I am truely appalled at the Proposed Statement I have received.

 

When the LEA said they were going to re-assess I said that I felt this was an attempt to get out of non-compliance issues and was an attempt to produce a weaker statement. The LEA replied saying that that was not their intention at all, but that they wanted to be sure they identified all his needs. (That could/should have been done at the Annual Review - but hay ho)!

 

The new Proposed Statement has been stripped of everything it previously contained. Bearing in mind that whether my son had dyslexia was the LEAs 'reason' for the re-assessment, and bearing in mind that no major alterations to the provision in the Statement was suggested at the Annual Review - they have removed everything. It now contains absolutely nothing specific at all. No small group teaching, no dedicated TA, no SALT or OT input, no social group or dinnertime clubs, no emotional programme, no teachers qualified to teach children with an ASD.

 

Plus, although dyslexia is acknowledged there is no provision in section 3 as to how they are going to meet this need.

 

So, my solicitor has said that they have basically used their powers in a very cynical way to weaken his Statement because the school/LEA were not complying with aspects of the previous statement anyway.

 

Even the evidence and reports I submitted have not been included. Any report that quantifies and specifies the provison my son needs is not in the list of appendices. The LEA have only included their reports.

 

Solicitor has said we will start judicial review proceedings.

 

I am so disappointed (but not surprised). At least whatever the outcome I do have the previous Statement as evidence of what he needed, and the current Statement is illegal.

 

There is absolutely no way that this re-assessment had my son's interests at the centre.

[Kathryn]

Sorry to hear this, after all you've fought for.

 

Your solicitor knows best, but I thought you couldn't go to judicial review if there is another appeal route, which in this case would obviously be SEND when the statement is finalised?

 

K x

[Sally44]

That maybe the case but we seem to be into intricate legalities presently. However we initially did not agree to a re-assessment and my solicitor sent a 'without prejudice' agreement to the re-assessment on the grounds that the LEA had assured us in writing that the re-assessment was not an attempt to weaken the Statement, but to realistically identify all my sons needs. The LEA have not kept to their assurances. And presently the Proposed Statement is not finalised and so the previous Statement still stands.

In his letter he has itemised the reasons that can be used for seeking the judicial review. TBH this is new territory for me, so I have not got my head around it yet.

It maybe that we have to go to SEND.

TBH, if the case for judicial review is taken on I am happy for the solicitor to represent my son directly as this won't actually cost me anything. As I said from the beginning, there was no need for a re-assessment. The current Statement needed some ambiguous wording amending (which the EP agreed to). The diagnosis of dyslexia was the tipping point eventhough it was already identified in his Statement as something that needed to be investigated and confirmed.

 

I have some hard decisions to make. Waiting until year 6 transfer is obviously the best time to seek an independent placement and we have two further years ahead of us in his current placement to demonstrate lack of progress (how depressing is that ).

 

Obviously there are no guarantees we would win if we sought such a placement now and I can't afford to keep doing this - as if it was some kind of sadistic hobby of mine .

 

But if judicial review does not work, we will have to go to tribunal anyway. My previous reports are over a year old, so I will probably have to get new ones (eventhough I did re-submit all previous reports and did clear with the LEA that they would accept them - which they said they would - and which they now have not done).

 

So I maybe faced with having to get EP, OT, SALT reports again. But frankly what is the point if what they recommend is included in the Statement - then the LEA does not comply with it and when you raise this issue they decide to re-assess!!

 

And from past experience the LEA will go belly up after i've spent all that money on private reports.

 

It seems this process has so many holes in it it resembles a string vest!

 

 

[dana]

I am really sorry that you and your son have to go through all this. <'>

 

Have you thought to use this moment where clearly LEA don't (or don't want to) understand your son's needs to fight for a placement in a special school if that would help your son?

 

Danaxxx

[BusyLizzie100]

I really feel for you, especially about the string vest situation!!!

 

Hang on in there and keep at it.

 

Just a thought, and I hope it doesn't upset you - do you think the LA is already thinking that a special school placement would be best? Special school Statements are often much less specific (my son's is); or possibly the LA is expecting you to fight for a special school placement? Or, of course, the LA is just trying to strip everything out as you say...

 

Sending you lots of <'> <'> <'> cos you sound like you need them.

 

Lizzie x <'> <'> <'>

[Athena]

Sally, very sorry to read this, after all you have gone through. The SEN system is so far weighted in favour of the the "system" and I include so called NHS "professionals" as well as the Local Authority, that the whole SEN system contravenes all the rules of natural justice.

 

Very disappointed that in practical terms, the Lamb Inquiry has done absolutely nothing to improve the way that the SEN system works. Separation of assessment and provision has repeatedly been proposed, by various inquiries into SEN and repeatedly rejected. Yet it is the only fair and reasonable way to properly assess the provision that a child with SEN requires.

 

Can you get legal aid in the name of your son for a Judicial Review?

 

Lizzie - lovely idea, but in my experience, the LEA do absolutely NOTHING in the best interest of the child; it is all about money/budgets and with the Cuts, it will only get worse.

[Sally44]

I had thought that as I had emailed the inclusion officer prior to agreeing to a re-assessment (not that you can refuse anyway!), and asked if they would accept my original private reports (which are around 18 months old now - but basically the same situation for my son in most areas). They said they would accept them, but did not know if a tribunal would.

 

So I submitted them all anyway thinking that as no major changes were announced at the annual review, and as i've submitted the same reports as last time, that the new Proposed Statement should resemble the original one to a major degree. Not at all.

 

The LEA has not even included those reports in their appendices and there is not one word from them in the Proposed Statement. They haven't included any new advice or reports that I submitted at all. They have literally 'chosen' the reports that suit them. Any report that is not by the LEA or NHS is not included. Any report that specifies provision is not included.

 

That means that if we go to tribunal I probably will have to get all new reports. But even though that will be expensive, it would cost even more if I were going to try for an independent special school. Because then I would need to ask all those who provided private reports to be available as expert witnesses and I would need a solicitor with me as well at tribunal.

 

So I have got to decide what to do. The 'cheaper' option is to get new reports and go to tribunal with them on my own. I will probably appeal all parts of the Statement (including placement), and then wait to see what the private professionals opinion is regarding placement. If they feel his current placement could meet his needs then I would go to tribunal on my own and see how my son does in year 5 and 6. If they feel he needs a more specific placement, then I would probably go for it and seek a transfer now.

 

But it gives me very little confidence in the system, because I could find myself going through the same thing again in a years time if the LEA decide they do not, or cannot, comply with the Statement they can use the need to re-assess as a way of re-writing the Statement.

 

I'm not sure if they could seek a re-assessment even if he had a place at an independent school?? If they did that every year no-one could afford to keep getting private reports to prove the independent school was still needed. Does anyone have an opinion on whether that could actually happen.

 

The LEA is also using a lawyer.

 

 

[Kazzen161]

I'm not sure if they could seek a re-assessment even if he had a place at an independent school?? If they did that every year no-one could afford to keep getting private reports to prove the independent school was still needed. Does anyone have an opinion on whether that could actually happen.

 

I suppose they could, but once you are in an independent school the LA have no authority over them, so the school will tend to say and support what is best for the child. Their reports for the annual review tend to be much more detailed and truthful. Most independent schools employ their own SaLT/OT/psychs, so you would get independent reports for free (or in fact indirectly paid for by the LA - lol!).

[coolblue]

Very disappointed that in practical terms, the Lamb Inquiry has done absolutely nothing to improve the way that the SEN system works. Separation of assessment and provision has repeatedly been proposed, by various inquiries into SEN and repeatedly rejected. Yet it is the only fair and reasonable way to properly assess the provision that a child with SEN requires.

 

>>>>>>>

Lizzie - lovely idea, but in my experience, the LEA do absolutely NOTHING in the best interest of the child; it is all about money/budgets and with the Cuts, it will only get worse.

 

Not relevant to Sally's case (yet) but just wanted to point out that the Lamb Inquiry findings were published not long before the general election, and that a green paper on SEN is scheduled for the autumn, which should address Brian Lamb's findings. So changes for the better might still happen. Our LA, which is far from perfect, has nonetheless had significant problems getting schools to put suitable provision in place, and one statementing officer was really excited by the Lamb Report, because she was saying that if it was implemented at last they would have some leverage with schools.

 

cb

[Sally44]

I have come across a number of instances relating to my own son's Statement.

The SENCO of the school he is currently at apparently contacted the LEA (just after tribunal) and said that the school could not fulfill the Statement! This file note is included in paperwork relating to a complaint I have lodged with the LGO. But it means that LEAs are promising to 'fulfill' Statements when the actual school knows full well that they cannot do that and yet they are not allowed to say so at tribunal!

 

Or the other problem I have had is when I have looked around other schools eg. mainstream secondary schools. They simply do not want SEN children there. But they cannot refuse. But they make it very clear that if your child is going to need a dedicated TA that that means the whole school loses a TA which is dedicated to your child and the school does not get extra funding from the LEA. So it is not surprising that many schools do not even want our children in them.

[coolblue]

Or the other problem I have had is when I have looked around other schools eg. mainstream secondary schools. They simply do not want SEN children there. But they cannot refuse. But they make it very clear that if your child is going to need a dedicated TA that that means the whole school loses a TA which is dedicated to your child and the school does not get extra funding from the LEA. So it is not surprising that many schools do not even want our children in them.

 

It's what I call 'constructive exclusion' - the school doesn't actively exclude the child, but makes it pretty clear that s/he isn't wanted.

 

When ds ran into problems at his last (junior) school, I went through the websites of all local mainstream secondary schools - and some not so local, to try to find one which was likely to meet his needs, so that we had a goal to aim for. Even the school that the LA says has a good reputation for SEN support talked about SEN in tones that wouldn't have been out of place discussing teenage pregnancy.

 

The forthcoming green paper is going to have its work cut out getting the system fit for purpose.

 

cb

[Athena]

Against a background of savage public spending cuts, I am concerned that the SEN Green paper may be used to justify cutting provision.....

 

As someone once told me, in political terms SEN is a relatively small minority interest.......

 

Sorry, I realise that I am

[coolblue]

Against a background of savage public spending cuts, I am concerned that the SEN Green paper may be used to justify cutting provision.....

 

As someone once told me, in political terms SEN is a relatively small minority interest.......

 

Sorry, I realise that I am

 

Well, it's a minority interest until SATs and GCSE results plateau and refuse to budge, and then the government discovers mainstream teachers generally have no SEN training.

 

cb

 

[roady11]

It's what I call 'constructive exclusion' - the school doesn't actively exclude the child, but makes it pretty clear that s/he isn't wanted.

 

When ds ran into problems at his last (junior) school, I went through the websites of all local mainstream secondary schools - and some not so local, to try to find one which was likely to meet his needs, so that we had a goal to aim for. Even the school that the LA says has a good reputation for SEN support talked about SEN in tones that wouldn't have been out of place discussing teenage pregnancy.

 

The forthcoming green paper is going to have its work cut out getting the system fit for purpose.

 

cb

Yes my child has been on the receiving end of this 'constructive exclusion' with senior staff asking if i have thought of moving my child to another school, he has also been on the recieving end of formal and informal exclusions even with the input of so called 'specialist tutors' so even those children that have had input from tutors with training even in thier specific disability are still treated as a 'second class' and my son also acheives good sats results and in light of this i think recieves even less support.