can statement be changed to allow son access to existing ot prgrams

[bensmum2]

Hi my sosn statement stipulates one hour a month ot and 15 minutes a day ot 1 to 1,he is in a special school (won at tribunal) and they already teach living skils and have their own ot rpograms in place which he would really benefit from in small groups,as i have asked the LEA to change the statement they are trying to use it against me saying he didnt need that much in the first place and we only said he did to get him in the special school.But the statement had to suit a manistream as well and in mainstream he would have needed that. But i dotn want him taken out of class all the time when he can join in with others, i even said this at tribunal, does anyone know of any case law or anything that covers this area, the reason they are doung this is that i am trying to claim costs for the tribunal and they are saying this proves he didnt need the ot in the first place and my reports that i am claiming for were unneccessary so they shouldnt pay for them,.

[Kathryn]

But the statement had to suit a mainstream as well and in mainstream he would have needed that.

I get where you're coming from but if 3 describes what could be provided in a mainstream school, then logically, a mainstream school should have been named in 4. The only caselaw I can find does not support your position.

 

"...part 4 cannot influence part 3. It is not a matter of fitting part 3 to part 4 but of considering the fitness of part 4 to meet the provision in part 3". R-v-Kingston upon Thames and Hunter [1997]

 

A little while ago you posted in another thread that you'd reached a compromise on this:

 

FANTASTIC NEWS ANYWAY GUYS SCHOOL TOLD THE LEA IF THEY INSISTED ON SO MANY MEETINGS THEY WOULD HAVE TO ATTEND THEM ALL AND I ASKED FOR A PRIVATE TUTOR UNTIL IT WAS SORTED AS THEY HAVE ALREADY ADMITTED THEY CAN'T PROVIDE ANY OTHER SCHOOL FOR HIM AMD AS HE HAS BEEN REREGISTERED WITH THE LEA SINCE SEPTEMBER THEY WERE RESPONSIBLE FOR PROVIDING AN ALTERNATIVE EDUCATION , THEY BACKED DOWN, SCHOOL SIGNED AND ACCEPTED IT AND THEY ARE GOING TO DO AN ANNUAL REVIEW IN A MONTH AND ASK FOR THE CHANGES THEN WHICH THE LEA HAVE AGREED TO CONSIDER AT THAT TIME!!! HE IS STARTING SCHOOL MONDAY 11TH tHANKS TO YOU ALL FOR YOUR AMAZING SUPPORT ONCE AGAIN. NOW WE JUST HAVE TO GET RESIDENTIAL ADDED LOL X

 

Is this still the situation? It sounds like an acceptable solution and a good way to get the statement changed eventually.

 

This is only my opinion but if pursuing costs is going to reopen the issue and once again put you in a difficult and perhaps vulnerable position, might it not be better to drop any further action?

 

K x

Edited October 18, 2010 by Kathryn

[bensmum2]

Hi Kathryn , i can see what you are saying , but going to tribunal has cost us loads we almost had to sell our home and i need to try to get some back if i possibly can.

The provision he needs is already available in the special school, but it is part of the everyday curriculum with the other children , in a miaistream it would not have been available and so wud have needed to come out of class to have the OT. The statement was written with no named school at first , and so they provision had to suit any school, the lea were ignoring his needs and didnt put any OT in at all,but our side needed it to be there in case he didnt get the special school so his ot needs would eb met. His needs are far more than OT, however the tribunal decided he couldn't cope with the sensory overload at mainstreeam, and i did say several times, he would need less help if he went to the special school as it's all part of the curriculum. i even said it in the tribunal when they asked me what he needed in my opinion. I just reosumed at thta school he woudl go into their programs like the others and with the others, as one of the other problems was he always felt differetn due to being separated from his peers and out of class most of the time and the beauty of this special school is that they all do the same stuff together therapy included, so the one to one in the statement would separate him again. Another example they also put a "time out card" in there ,which he won't need in this school, but would have been essential at mainstream . It has been sorted between the school and LEA, but in reply to my claim for the costs, they are using my email asking them to change the provision so that he isnt segregated and can do OT wiht his peers, they are trying to use it as evidence thta he never needed the OT provision in the first place! Having said that they are also lying to the tribunal saying they were not informed i was going for independant reports, when there is proof that they were told at a case management hearing with me, them and a tribunal judge in May, they are just trying to use anything they can and i'm not going to let them get away with it.If i can't find this case law i will go with what i already have, Thanks again for your advice x

[Karen A]

Kathryn is the expert on these things.

 

However is there a risk that if you get into a debate that the LA might take the oppurtunity to change the Statement....but leave it in a worse situation than it was in the first place.

 

In which case is there skope to negotiate with the School informally to see if they can offer the provision you want without a change in the Statement.

If I understand it is less than what is documented rather than more .

 

Karen.

Edited October 19, 2010 by Karen A

[bensmum2]

Yes it is less, the lea have agreed to chnage it at annula review an i couple of weeks, as it also states the lea have to attend meetings a lot, and they arent willing to do that, but ithey havent mentioned that , and i havent got that in writing.I have told the school i want him included with the others but as the statement is so specific they need to make sure it's done right x

[Sally44]

You really need to tread carefully with this one.

 

The case law I found that says a special school may not need to quantify and specify to such a degree is this:-

 

L v Chair Of Special Educational Needs Tribunal & Anor [1997] EWHC Admin 792

 

Sometimes, LEAs determine not to quantify or specify provision for children whose statements provide for them to attend special schools. There is nothing in law which limits the obligation to quantify and specify provision to those children not attending special schools. However, in E v London Borough of Newham and the Special Educational Needs Tribunal [2003] ELR 286, the Court of Appeal accepted that, where a child was attending a special school, a lower level of specificity may be appropriate.

 

This is on the IPSEA website under common problems, case law, duty to specify which lists all the case law.

 

 

The other argument you could use is that if he had attended a mainstream school this OT provision would have been a "bolt on" service within a mainstream school where other children would not be receiving an OT programme. However in the special school it is a "whole school" approach with OT being delivered to all the children to meet their needs in 1:1 and group sessions and that your son should be integrated into that whole school approach.

[Karen A]

Hi.

In my LA as I think is the case in many others Specialist Provision are currently able to ration the total amount of SALT,OT etc available amongst the majority of pupils.So as demand has increased the amount of time available to individual pupils has decreased.

 

The exceptions are cases where parents have ensured that provision is quantified and qualified.

LAs are currently looking for any savings that can be made and there is a very real possibility that the funding review could make matters worse.

 

If you currently have a more specific Statement than is needed then it may be better to leave it as it stands.The LA might make the new Statement so vague that there is no gaurentee of anything.

 

Karen.

[bensmum2]

Hi Sally thanks for that , that is just what i need, this part is really the lea trying to say he needs no OT but it's not all about OT and the tribunal accepted the holistic approach of the school. i did look at ipsea case law but obviously missed that one, so thanks for that it will be a great help. Karen The fees wont' actually decrease even if the Ot provision is changed , but if it stays the sam the lea may have to pay out more when it isn't necessar, thye will also have to attend regular reviews which the dont wnat to do!This is just the lea trying to wriggle out of paying for the independent reports with everything they can think of, its not actually relevant to whether they should pay for the reports or not really, as the final tribunals decision was mostly based on evidence the lea had before i even applied for a statutory assessment. So my arguement is that if they had acted on that evidence , i would not have needed to get the reports, but as they ignored all the advice they forced me into getting them to confirm my sons problems. They have said they weren't necessary as they only said the same thing as their own reports, so i sais i agree but i had to get them cos they ignored their own reports and they forced me into getting further evidence. I have done waht i can now and just await the outcome, thanks again ladies x

[Sally44]

As a final option could you call the LEAs bluff and say you'll pay the difference in OT input as required in the Statement. In that way the LEA would also be forced to comply with the review meetings which they will not want to do because of the additional funding. And you could then still claim the costs of the reports??

At the first review the school could then recommend that he takes part in the group OT sessions delivered by the school.

When is your annual review date. It maybe on the date the first statement was finalised, which is not necessarily the date the Statement was changed at Tribunal. If that AR date is close it might be worth doing the above?

This is a real mess. Have you spoken with SEND about this, or the person who put together the Statement, or IPSEA?

[bensmum2]

Hi Sally, i have spoken to send and we could apply for the statement to be changed, but the lea have agreed to change it at annual review. His statement was originally done in January , so his annual review date is january although it can be done before then, school are planning to hold the review in november though, so this can get sorted out. School have already got an OT assessing him , so she will then comment on the schools existing programs and how they would benefit him and then , as you say we could insist they attend the programs if they still disagree and they wont want to do that, as they will also have to attend review meetings!! these parts of the statement were written by ipsea, refused by the lea but then ordered by the tribunal,although thee lea did suggest the regular meetings! but whn they were written it had to be done to cover the mainstream too.

 

I dont belive ist such a mess now i have had all this advice, i believe its a battle of wills between the B**** at the lea and myself!! At the end of the day, the judge coudld ecide i dotn get my money back, but if the lea dditn appeal against the tribunals decision, they cant try to say its not right just because i am trying to claim expenses.

 

The funny thing is, they keep going on about "the public -purse can't afford this and that, but it would be cheaper as well as very beneficial for my son to stay overnight 2 days a week as most of the other children do,and the other child he shares the taxi with does too. So getting him the taxi when she is staying, costs them a lot more than if they paid for the residential nights, and once my current appeal has gone in, im going to apply for the residential on the grounds that it would benefit him and save the "public purse" thousands over the 2 years he will be there !! So i guess my fight will continue lol x