LEA quoting overturned case law

[Sally44]

I have received my LEAs grounds for resisting my appeal. In it they have included the LGO decision which did not find maladministration of my LEA and quoted case law in which the judge had ruled in favour of an LEA that had not provided all the SALT provision itemised in a Statement. The judge said that the Statement should be looked at as a whole, rather than the constituent parts.

 

That worried me, so I contacted IPSEA. They have written to me and stated:-

 

"N sought to compel delivery of the SALT in her Statement by judicial review. The Administrative Court refused to compel delivery. The Court of Appeal held that to be wrong. The obligation under the Education Act 1996 s.324(5) on an LEA to arrange the Special Educational Provision specified in a statement of Special Educational Needs was absolute. It was not merely a “best endeavours” obligation which was satisfied where the LEA had arranged most of the elements of Part 3 of the Statement and considered that the child did not require the others (despite the Tribunal having decided to the contrary). A provision in a Statement which purported to allow an LEA to change provision without amending the statement was unlawful."

 

So, yet again, it is always worth checking any information you are given. Worringly, it appears that the LGO based their decision on case law that had been overturned.

[Yossarian]

In our tribunal the local authority quoted irrelevant/spurious case law at us too eg judgements that involved a decision between home-based ABA programmes and specialist ASD placements. Ours was about home-based ABA v mainstream with v little support. I saw it as a weakness in their case. There was no relevant case law supporting their position. Perhaps it is the same in yours?

[Sally44]

That would be good if that was the case. But I am so relieved to have been given the actual outcome of that case by Ipsea, because it does make you wonder sometimes because they tell you such rubbish and you don't even know it is rubbish unless you seek clarification.

 

What I find more worring is that the Local Government Ombudsman, who are supposed to look into complaints against LEAs regarding maladministration etc were the ones using the incorrect case law information and they based their judgement on that case.

[Yossarian]

Don't really have enough info to comment on LGO. The IPSEA point seems definitive to me (not a lawyer). There is no 'best endeavours' defence. This is discussed in "Cemented to the Floor by Law" here - useful publication. The same author has another publication, very useful, here

[Sally44]

Thanks for that, it is very useful. I've had a read through it and will print it off.

 

What I have found is a major problem is that the school is always the starting point for seeking outside professional help. If the school is not proactive and does not do that, then your child does not get access to any professionals unless that input is quantified in the Statement. That means there is no way you can get section 2 or 3 of the Statement to be a true reflection of your child's needs and therefore your child will not be getting a suitable education. Have you any ideas how to get around that other than getting your own independent reports? For example, recently we've been referred to Clinical Psychology and then CAHMS. We've got an Annual Review coming up and i'm drafting a letter to send to CP and CAHMS to ask them to put their findings in writing because otherwise I know they won't do and it will all be verbal advice.

[Yossarian]

Hi Sally

 

Sorry just lost my reply. Will try again:

 

1 What is your relationship like with SENCO/head?

2 Are you ever invited to review IEPs, and if so, are they SMART and does your child achieve targets?

3 If not achieving targets, this would seem to me to be a route to pushing for extra assistance outside of annual review

4 If this is not happening, you could write formally to SENCO/head setting out your concerns, and see what response is

5 If that doesn't achieve progress, you can write to professionals directly stating your concerns

6 Also you can write to the local authority

 

This will, if nothing else, give you a paper trail if you need to go to tribunal

 

The process around annual review is quite clear.This is the responsibility of the head:

 

6 ..Dependent on the pupil’s needs and the particular circumstances surrounding the annual review the head teacher should invite:

● the pupil ● an LEA educational psychologist ● health service representatives ● social services representatives ● in the year of a phase transfer, a representative from the receiving school ● other closely involved professionals

 

7. These professionals should, in the light of their involvement with the pupil over the past year, and the nature of the advice they can provide, consider the necessity of attendance at the review. They should also, where it would be helpful to discussions at the review meeting or as an aid to decision-making by the LEA, provide written advice.

 

 

Collection and collation of information

 

9. The head teacher must request written views from the child’s parents, all those required by the LEA and anyone else the head teacher considers appropriate. The head teacher should also make sure that the pupil’s views are recorded. Schools should seek the advice of professionals on an individual basis in relation to the review of each pupil even where the LEA has arranged that schools send professionals termly lists of pupils whose reviews fall due the following term.

 

10. The head teacher should make clear that the reports should relate to the pupil’s progress in relation to the needs and objectives outlined in the a statement. All the written reports received by the head teacher must be circulated to the parents and those attending the meeting at least two weeks before the date of the meeting.

 

I would be clear that you expect this to be followed.

 

The purpose of the annual review:

 

1. The purpose of the annual review of a pupil’s statement is to make sure that at least once a year the parents, the pupil, the LEA, the school and all the professionals involved monitor and evaluate the continued effectiveness and relevance of the provision set out in the statement.

 

All quotes from the SEN Toolkit.

 

 

So you have a right to expect monitoring and evaluation and to look at relevance of provision.

 

Can you or school demonstrate either progress or a lack of progress over the year? This is the starting point.

 

If the school / LA are not willing to change the statement to reflect your child's needs and how they will meet them, then the only route I see is appeal.

 

Is there discrepancy between professionals' reports and the LA provision? If you agree with professionals' reports, I don't think it would be necessary to get independent ones if heading towards tribunal (I would take legal advice on this though). If not, then I think you would.

[Sally44]

Well this is where I always get to the point of wanting to pull my hair out and bang my head on the wall.

 

Although IEPs should be SMART, my son has not met a literacy target in year 3, 4 or 5. They have lowered the target at each review. At the last IEP meeting I insisted that the EP was present and she said his targets were way too high and that we should be looking at learning no more than 3 words a week, up to 12 words and then move onto using them in independent writing. If he did this in three separate pieces of writing we would consider the target achieved.

 

However, my son has severe dyslexia, which means his literacy level is way below his cognitive level. And my opinion is to just keep lowering the number of words is not looking at the basic reason he is failing. The SALT has also recorded a standard score of 2 for forumulating sentences, where 3 is classed as severe. In other areas of S&L targets he was 14 and 15 (where 8-13 is considered average).

 

So if I can see that the approach is not working, and that his difficulty with formulating sentences will mean he will not be able to use these words in independent writing (because he doesn't do any independent writing) - how am I supposed to get the school to also see that and agree and do something????? School keep saying "good progress" and so do not get EP advice.

 

In a couple of weeks I am taking my son to have full cognitive assessments including things like reading speed, writing ability etc so that we have a full picture of his difficulties. I did ask the LEA EP what assessments she had carried out (these assessments were supposed to confirm dyslexia and what his specific difficulties were). What she actually did was the BAS II where we now have an age level for his reading, spelling, and numeracy. And the fact that he was so poor at it supposedly confirms dyslexia. But she did not other tests of short term memory or auditory processing etc.

 

We also have an aim in his "new" Statement to "improve his sensory integration". The OT does not see him at all in school because school have no concerns!!! And the LEA have told me that that aim relates to "multi-sensory learning" - which is a load of twaddle.

 

I think i'll have a good think about what to say at the Annual Review, because we have a tribunal coming up in April.

 

Will the Head even know that Clinical Psychology and CAHMS are now involved? I presume as health professionals they should be involved.

Edited January 21, 2011 by Sally44

[Yossarian]

Hi Sally - I've not been ignoring you.

 

First thing to say is that I'm not in possession of all the facts, and I'm not an expert, and I can't really provide you with a clear path through your difficulties.

 

However - to take your last point first: write to the head and make him/her aware of professionals involvement, and make sure you expect cop to be followed - in a nice way.

 

I think, in general terms, first off your son's needs have to assessed properly. If the LA/ school are saying they have done this, and you disagree then, write stating your concerns and ask for proper testing. If they refuse, then you may need independent professionals/second opinion

 

Then present them to the LA and see the response. If response is not to your satisfaction, then this can be part of your tribunal

 

Another option is to consider moving school to one which will accommodate your son's needs better.

 

Non-specificity of statements is a no-brainer and should be brought up in your appeal

 

You need to be able to show in the paperwork you are a reasonable , so asking for dyslexia testing, then having the LA response will help clarify at tribunal.

 

Remember the annual review looks at the written evidence, nothing else. So everything important needs to be on paper. Write your view and send it to local authority two weeks before review date.

 

The tribunal takes oral arguments as well as written - big difference.

[Sally44]

What do you mean by "oral arguments?"

 

I have asked the LEA EP to assess for dyslexia (2007 onwards) and she refused. When I complained to the LGO the Head of the EP Department said she had not 'refused', but had carried out classroom based assessments and the LGO seemed happy with that and never asked for any evidence that this had happened. When I asked for a copy of her assessments and findings she never responded and never sent them to me.

 

I don't think she has any intention of doing further assessments, that is why i'm going independent. When I asked for her assessments that had confirmed my son had dyslexia, she just sent me a second copy of her report for the annual review 2010, in which she carried out the British Ability Scales II assessments for reading, spelling and numeracy. The Dyslexia Association said that was not enough and that she should have carried out comprehensive assessments. But I've flogged a dead horse as far as I can see, and she isn't going to do it.

 

I have downloaded the EP departments booklet from the LEA website. I've never seen this before, but it sets out how children are referred ie. difficulty with literacy would cause school to refer and seek advice. The school never did that. And they have confirmed that in writing. And their excuse is that they have the expertise to do these things and make decisions without professional input. But by not seeking advice we have evidence that my son became so distressed that all further assessments carried out in school had to cease. They were timing him. I think that was inappropriate as he has processing delays, short term memory problems, dysgraphia etc. It just made him so anxious he vomitted.

 

There is no other LEA maintained school that has any greater understanding of ASDs, and there is no school that has additional input or expertise for dyslexia. We are currently at the best the LEA has to offer it seems.

 

He has got a really good teacher this year, so I am hoping that he will write a good report. This teacher did refer my son to the specialist teaching service because he said he had no functional literacy skills. I had always been told that this service only offered "telephone advice." When I wrote to the department to ask how they were able to meet his needs, they wrote back saying I had misunderstood what their service could provide. So I've sent a copy of that to his teacher and asked him to follow it up to see what they can offer.

 

But in every instance the school has not referred him on eg. in the last annual review report it said "would benefit from input with social play skills." That was never referred to anyone, and he has not received any input in this area. His teacher said that playground interaction was breaking down and she felt he needed some extra input/support. She did talk to me about Play Therapists, and I sent her details of the one we used to use. But nothing further ever came of it. And that school report was not even included in the re-assessment documentation considered by the LEA.

 

I can't afford to get all independent reports this year. But I am hopeful that the cognitive ones will prove a case for more input as progress is not being made and things learnt are forgotten.

Edited January 24, 2011 by Sally44

[Yossarian]

oral evidence on the day by either side. It does help if you can back this up with written evidence in the bundle, though you won't be able to introduce new written evidence on the day.

 

If the la are refusing to give written reports use the corporate complaints procedure (3 stages, will be on their website), then if exhausted back to the LGO

 

Is there guidance from the Dyslexia assoc that you can point to with regards assessment?

 

 

There is no other LEA maintained school that has any greater understanding of ASDs, and there is no school that has additional input or expertise for dyslexia. We are currently at the best the LEA has to offer it seems.

If the school is not appropriate for your child, the LA has a duty to find/fund one that is. Have you looked at non-maintained? If you feel so strongly, then this is an argument you could make at tribunal. The tribunal will first look at the provision the LA says is appropriate, then they will look at the provision the parents think is appropriate, then make a judgement.

 

It may work as a tactic, in that the LA may increase their 'offer' leading up to tribunal if they think they could go down for a £40,000 independent placement