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emmasmum

Tribunal again

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Just to recap Emma is in her final year of school (Yr 11) - she was diagnosed at the beginning of Year 10 with Aspergers. She also has auditory neuropathy and auditory processing disorder.

 

We applied for a statutory assessment (Emma was underachieving considering she'd been assessed in Yr 1 as being on 73rd centile cognitively) and were refused on the grounds that the local authority had a good knowledge of Emma's needs and were meeting them in school. We appealed the decision - we had noticed, once we got the education file, that problems had been noted with her memory and processing which hadn't been explored. We argued that she had complex needs and needed a full statutory assessment to work out exactly what those needs were and how they could be met. LA said that it was too late anyway, as by the time any statement was issued she would be leaving school.

 

We won the tribunal - everything went in our favour. The panel agreed with us that the assessment might identify needs that could best be met in a specialist provision and therefore the local authority's argument that it is too late was "unattractive".

 

Stat assessment was done quite quickly - it identified problems with language (understanding of spoken paragraphs on 9th centile) - they didn't retest much of what had been done at age 6 but quite a thorough EP assessment which highlighted problems with speed of processing and auditory memory. A dyslexia screen showed her to be at risk but as she reads well and her spelling is age appropriate EP said she didn't meet the criteria for a diagnosis of dyslexia.

 

They issued a note in lieu and I appealed for refusal to statement.

 

At this point the LA asked us in for a meeting almost immediately - which is very different from last time we appealed when they didn't ask to see us until a few weeks before the hearing date. We saw the principal education officer for our area. He was very patronising and condescending. He asked what we were hoping to achieve - I said I wanted Emma to have a choice for 6th form which included an independent specialist placement which would allow her to leave school with the grades she deserves and with more confidence (she thinks, because she had underachieved, that she is stupid).

 

He asked why we'd applied for local mainstream colleges. I said we needed to have a fall back plan. Em has looked at an Art and Photography one year course and an Animal Management course. He asked what Emma thought about going to an independent school - I said that we hadn't fully explored this with her as the option wasn't on the table yet. He said the panel would most likely adjourn the appeal if we hadn't been to see the schools we were thinking might be suitable and Emma wasn't keen to go to them. I had thought that if we were applying for a statement that the looking at schools would come after we had one that battle. Indeed, during the interview the LA officer said that we would most likely have to go back to tribunal several times as they could issue the statement and immediately discontinue it then when they did issue it they could do so but not name the specialist independent provision we wanted.

 

We discussed the school I had identified as being a possible option. A specialist school for young people with Aspergers and Dyslexia. He said this school wasn't all it's cracked up to be and that, as it is 45mins away, Emma would need to board there and how does she feel about that. He then said that he felt her needs were more speech and language and named a school on the Isle of Wight we should look at. This is an independent school too so not quite sure why he suggested it?? He did say that Emma would have to board there as the ferries don't operate if the weather is bad. I think he knows that Emma would not want to live away from home.

 

So I have started sending reports to the two schools we have in mind - the one I found and the one he suggested. The one I found is on Easter break so couldn't respond. The other school said they thought they could meet Emma's needs and have invited us for an informal visit. The follow up to this will be a 4 day assessment which I think is residential and for which we will have to pay £300. I very much doubt I will get Emma to go for a 4 day residential stay when she doesn't know anyone and is so lacking in confidence.

 

I haven't gone down the independent report route - partly due to the cost - partly because I think this appeal is quite a long shot - and partly because I have lots of other things going on at home (my son has significant disabilities) and I couldn't get myself organised in time.

 

It is looking like we will have a July date for tribunal. I am concerned that by this time Emma won't be officially on roll at school, but the LA said this won't prejudice our case.

 

I suspect the LA are pushing us to look at schools so that Emma says she doesn't want to go - they've already said that they have a statutory duty to interview her to gain her views. That's really annoying that they're so keen on doing what she wants now all of a sudden. When she was refusing school would they have thought we should completely follow what she wanted then too? As parents don't we have the duty to make decisions for our children when they are in their best interests?

 

In reality I wouldnt send her somewhere where she doesn't want to go but I want her to have a choice - the courses she's chosen for college will hopefully capture her interest and keep her in education but they aren't going to help her regain what she has lost at school - I think an independent placement could, then she could go on to vocational courses afterwards.

 

Sorry for rambling - any ideas about what the LA are up to would be gratefully received,

 

Thanks

 

Carol

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Dear Carol,

 

I am very concerned by what you have written - you should not be taking advice from this man!

 

45 mins travel time is nothing - of course she would not have to board! Even statutory guidance for travel times state a max of 1 hour and 15 mins for secondary school children.

 

In order to amend a statement, there has to be a significant change or development i.e. if you did win a statement, they could not just keep 'stopping it' - you would have a clear case for judicial review and they know it!

 

They are 'supposed' to gain the views of the child but they do not have the 'right' to 'interview' her. At my tribunal they did not even try to get my DS's views; I submitted them and equally I know a friend who would not allow them near her DS and the tribunal did not mention it. You could get someone you trust to gain her views; I think it would be a good idea for her to visit the school of your choice and discuss going there - you would have to explain it is one possibility.

 

Please ring the helplines IPSEA, SOS!SEN, ACE, NAS etc or speak to your solicitor.There are others on the forum, who have been through post-16 education and can advise you better, especially as I think if your daughter does go to college, she would not have a statement anyway, but if she went to a school with a sixth form, she could - not sure.

 

Best of luck/x

Edited by Grace

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Be very careful about meeting with the LA and saying things to them and being open and honest, because they won't be. At Tribunal they could say they met with you and you said you preferred a mainstream college, that you did not think your daughter would cope with residential etc etc. Although that is in part true, it is a biased one sided view and they will present it.

I agree that they might have mentioned the residential school further away because it would put you off.

Are there no independent day schools?

I don't think that 45 mins travelling is impossibe, i'm sure others do it. Or possibily a residential placement where she comes home at weekends.

You have to think very carefully about what you want and go solely for that placement. Think about a plan B, but do not tell the LEA about it at all, otherwise they will argue that the parents are not sure and have also sought information about a mainstream college. That will not look good at the Tribunal unfortunately because it appears as though parents feel their child might cope at such a placement - where in actual fact it is usually a desperate attempt to try to find something, anything that might have a chance of working.

 

As the LEA EP said she was at risk of dyslexia, have you considered going and having her assessed independently somewhere like Dyslexia Action?

 

I'm not sure where you are exactly in the UK, but we went to visit an independent EP called Peter Congdon. He is well known and reputable and could carry out a whole range of assessments, including for dyslexia for around £380.

 

Her difficulties may well be around speech and language, but those difficulties tend to transfer into literacy in the form of SpLD.

 

How the LEA talked to you is unacceptable. They have basically theatened you by saying you can continue your fight and we are just going to keep frustrating it as much as possible. Did you have anyone with you at the meeting and did you take notes? I've had similar things done to me and now I always take a dictaphone with me and record it on tape. At the last meeting the LEA said that they needed a duplicate copy of the tape, so if you have any friends with dictaphones take two along with you to any meeting and put them both on and give a copy of the tape to the LEA. If they refuse to be recorded you have to ask yourself why.

 

Where are the LEA thinking of placing her?

 

One thing you can do, which I have done as I'm currently in an appeal, is we lodged a "Request for Changes Form" (which you obtain from SEND), and in it we quoted legal case law regarding Coventry vs Browne. In that case the LEA named a placement and said that they could provide for all her needs from the staff within the SEN department. The parents preferred placement had to get a quote for an independent specialist teacher for SpLD. The Tribunal ruled and placed the additional costs on top of the LEA named placement as well because they said that the LEA did not have the expertise within their SEN department and therefore the costs applied to both LEA and parental choice of placement. That caused the parental choice of placement to be a better choice.

 

You need to find the Judgement of that case and print if off and attach it to the Request for Changes form and request that the LEA provide detailed costings for the placement including all specialist teaching AND THERAPIES. And say that "parents would like to recive these detailed costings so that they can determine if they are realistic."

 

The Tribunal has found in my favour and has ordered my LEA to provide detailed costings. That is going to be difficult for them to do inhouse because they have already written to me previously telling me that they do not have any teachers in the school or within the SEN department qualified with an additional teaching qualification for either ASD or dyslexia.

 

The Judge has ordered that they provide those costings by the end of this month. This means that they cannot turn up at the Tribunal with facts and figures that we cannot challenge. They have to provide them upfront so that we have time to look at them and see if they are comparable with what our reports are saying my child needs. And if a child has a speech and language disorder, and hearing difficuilties, and sensory issues, and a learning difficulty detailed in reports the Tribunal WILL say that someone suitably qualified has to be providing that provision and the Tribunal will quantify it in terms of hours.

 

The LEA gets away with providing provision and therapies by unqualified people because basically no-one challenges the LEA. It is acceptable for a suitably qualified professional to deliver a programme once a week/fortnight etc and for a TA to deliver that the rest of the week. But not for the TA to be the sole person delivering the therapy. Professionals are professionals for a reason, if anyone could do it there would be no need for them and the receptionist at your local GP's surgery would be able to diagnose and write prescriptions as well!

 

I really think you need some help with this Tribunal, because the LEA do know what they are doing.

 

Another thing I found helpful was carrying out a Data Protection Act and Freedom of Information Act request for documentation. I got these from all the professionals that dealt with my child and also the LEA. That produced file notes and emails within departments that stated they had deliberately worded the Statement so that they did not have to provide the provision within it. That is worth it's weight in gold at Tribunal, and is also worth a complaint to the LGO. After this Tribunal I will be seeking costs on the grounds of those emails because it proves that the only reason we have had to go back to Tribunal again is because they deliberately worded the Statement so that it did not happen. You might find something similar.

 

I don't know what to suggest about the trials at the independent schools. My son went and completed 3 days when he was really quite ill and not attending school. I stayed within him for 1 hour each morning until he was happy for me to leave. He didn't stay overnight. I think that may only require 1 night?? See what the school could offer ie. that you stayed until she was happy for you to leave. Could you stay in a premier inn nearby with your other child - if it is residential you maybe able to do it over a weekend??

 

My understanding is that you are thinking that she goes to an independent school until she is 19, and then she may have more confidence and better results to access your local college for the courses she wants to do? That is not a bad option. Also the indpendent school should be able to write up a much better report for what she would need as support within the college.

 

Please be careful about meeting with the LEA again. Try to get notes from the meeting - but i'm sure the LEAs threats of frustrating the Statementing process is not going to be contained within those minutes - that is a real shame.

 

If the LEA are recommending a certain placement, then they should be liable for paying the assessment fees. So find out about that.

 

What independent schools are available in your area for her difficulties? Have you looked on OFSTED at their reports.

 

For help have you tried to get help from the NAS, or IPSEA, or NETWORK81?

Edited by Sally44

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Thanks for your replies.

 

My daughter's current school (mainstream) does have a sixth form but it offers A level options only and she is not achieving sufficiently high results to do an A level course. In addition the school have failed her badly and she has had bad experience there in terms of bullying etc so it would not be an option, even if she had a statement for support.

 

I forgot to mention that the LA asked me to review the Note in Lieu and see if I was happy with what was in there as this would be the basis for a statement if they issued one. I've made some amendments but am out of my depth. I can't get through to IPSEA - have tried and tried but as I work aswell I really can't spend hours on the phone. When I've got through in the past the advice has been very generalised and not specific - no-one is willing to review the documentation and tell me what's needed.

 

Sally, we are in Hampshire - can't remember where you are but if it's a possibility I would be grateful for contact details for the EP - I had a bad experience with one in the past who really didn't seem to know what he was talking about and concluded that Emma just wasn't very bright - this disagreed with the reports that we had done by the LA EP when Em was six and the ones done at the beginning of this year.

 

The LA also said we should consider independent colleges (funded by YPLA) - I think this lets them off the hook but they say that the tribunal isn't interested in compensating families they are only interested in what the child needs here and now. I've spoken to connexions who say that we can apply for YPLA funding but as a mainstream college place has been offered we are unlikely to get anywhere.

 

I have to apply for college places otherwise Emma could potentially have nowhere to go in September if we don't win the Tribunal. They know I've applied as they've spoken to Connexions and seen the S139a and the response from the mainstream college that has offered her a place. Their witnesses for tribunal will be the EP, the SENCO at her current school and the SENCO at the mainstream college where she has been offered a place.

 

Carol

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I understand exactly what you are saying about needing to find a place because I did the same thing, but years ago. We were appealing a Statement and my son was not coping mainstream. I managed to secure another mainstream place but at the LEA maintained school that had enhanced resource provision for capable chidren with ASD who were mainstream, and also an ASD unit. The LEA used the fact that I had applied for a mainstream place as proof that I believed and wanted my child to be placed mainstream. What they failed to provide - and which I uncovered via Data Protection Act searches, is that the LEA Autism Advisory Teacher and the LEA Educational Psychologist BOTH recommended the Autism Unit, but the LEA decided they did not want to give it to my son. They never produced that information. I think Kathryn posted another case law in the forum where I was explaining all this. I'll copy it over to this one. Remember that Tribunals go on case law. What your LEA is doing is illegal. Don't be intimidated by it. Just get as much evidence as you can and go to Tribunal. If they argue on the day that you sought and got a mainstream place you will have to explain why you did that.

 

If your Appeal is in July you may have time to do a Data Protection Act, to the LEA SALT and EP and also the school and LEA. You may well find some evidence in there to support your case that she needs an independent placement, or that the LEA have not provided everyone's opinion. It will cost to do it, the most they can charge is £50 per search ie. £50 from the school (who shouldn't really charge, but they can do), the NHS PCT that provides the SALT and the LEA EP department.

 

You can also write to the Head of the Department that provides specialist teaching and ask them how many teachers they have, what their qualifications are specifically for ASD, SpLD, Auditory Processing neuropathy and APD etc.

 

Does your child have sensory issues? Has she ever been assessed?

Does she have dyspraxia or shown symptoms or ever been assessed?

 

I know IPSEA is hard to get hold of. Try the NAS or NETWORK81 and ask for someone who can help you with a Tribunal case.

 

I'll PM you.

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This is the case law that Kathryn quoted. Remember that for the LEA this is about money at a time of cut backs. BUT that is NOT how they are supposed to be dealing with these cases.

 

JF –v‐ Croydon [2006] EWHC 2368 (Admin)

“[As for] the role of a Local Education Authority in hearings before the Tribunal. Although the proceedings are

in part adversarial because the Authority will be responding to the parents' appeal, the role of an education

authority as a public body at such a hearing is to assist the Tribunal by making all relevant information

available. Its role is not to provide only so much information as will assist its own case. At the hearing, the

Local Education Authority should be placing all of its cards on the table, including those which might assist the

parents' case. It is not an adequate answer to a failure to disclose information to the Tribunal for a Local

Education Authority to say that the parents could have unearthed the information for themselves if they had

dug deep enough.”

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