Tribunal nightmare

[babnye1]

My son is 8. He has Asperger's, Sensory Processing Disorder, Hypermobility Syndrome and Specific Learning Difficulties.

 

He is bright but keeping him in school has been a real challenge because of his difficulties. We have had a long contentious history with school who were deeply unhelpful through diagnosis and then tried to reject my son once his statement was issued. We flexi-schooled for a while.

 

School have had a long history of lying about things that they have done for him as soon as experts come in and then not doing anything when everyone goes so my son's SALT provision has lain in tatters for most of the year. However, as Tribunal approached, it was clear that the S&LT and head and LA were getting together to patch up the evidence. I know they had meetings in private.

 

We ended up taking DS out of school - and his brother. We should have done it much earlier. But this was a relief to everyone not least him.

 

I instructed solicitors for Tribunal - I'd done most of the work myself- but they wanted £2500 to attend so we tried to see if we could reach an agreement - even offering to pay for S&LT ourselves. The dispute on S&LT was over whether 6 visits a year from the S&LT was enough. Our S&LT said my son needed direct therapy and the weekly attendance of a S&LT for a term at least to train staff. She came into school and noted low levels of awareness of ASD and poor strategies.

 

Anyway, they listed the Tribunal for another city 25 miles away at 1pm the day before our hearing. Our solicitor spent all afternoon trying to compromise but the LA wouldn't even get their decision-maker on the phone to discuss this. They told solicitor they wanted it to go to a Tribunal because 'I had been difficult'. Given that the move of venue meant we couldn't both go, I couldn't face attending alone to fight them all and their lies. So I wrote to Tribunal to ask them to consider the case on the evidence.

 

Looking at the ruling - the tribunal has set out all the issues but has:

 

1. Failed to set out my son's needs or provide a summary of his difficulties.

 

2. Not ruled on the issue of whether he needs an HLTA - they make a note of asking the head who says 'no one in our county does this' (?!) but then there is no ruling on it

 

3. Said in its ruling that our EP agrees with LAs EP in terms of need and provision. This is completely wrong. Our EP actually recommended that our son required full-time specialist TA support. We tried to compromise on 25 hours but the LA wouldn't budge from 20. The ruling leaves an unspecified 20 hours and although it sets up the HLTA as an issue, it does not actually rule on it.

 

4. Confirmed that the only issue between the S&LTs is the issue of 1:1 direct therapy and the NHS S&LT says there is no clinical need for this. However, our S&LT said that a S&LT needed to attend weekly because of lack of ASD training, need to support TA and ensure inclusion in school activities and not just because of direct 1:1 therapy. The evidential basis for our S&LT's recommendation is not even recorded in the evidence summary or ruling

 

5. Removed our proposed addition that parents should be part of the thrice yearly multi-disciplinary meetings between specialists that the LA agreed to included in the statement without explanation. They have also removed school from these meetings! So we have a thrice yearly MD meeting for therapists - very useful.

 

 

Thanks so much if you have read this far!

 

I'm just wondering if anyone has experience of appealing

[Sally44]

Sounds like a mess.

 

When are you due an Annual Review?

 

I'm asking that because it might be better to let the Tribunal issue the Statement and see what actually happens. Sometimes it is better to have evidence that a certain level of provision has not worked before you Appeal again.

 

Has the ruling quantified and specified provision?

 

Then IF your child does not cope with the support and provision put in place, go back to Appeal after the next Annual Review, or call an emergency review.

 

YOU HAVE TO BE AT THE TRIBUNAL. And you will need your attendees to back up their reports. It will cost money. You may need a solicitor or support from ISEA, NAS or NETWORK81. You have to project manage it all unfortunately.

 

Sendist seem to be in a big mess at the moment. Whether you Appeal (if you have the right to Appeal), or whether you wait until the next AR or call an emergency review etc, you need to keep in regular contact with Sendist to make sure that the Appeal is scheduled, and not waiting for a cancellation. You can put in a Request for Changes form to request that it is a local venue.

 

If you do not know the venue AND the name of the Judge that is on the Panel two weeks before the actual Appeal date, then you need to be asking Sendist some serious questions. In a case like yours it would have been better to seek a postponement, and request a local venue rather than the situation you are currently in.

 

How old is your son and what year is he in.

 

I would recommend you get specific advice about what the Statement should contain. As far as I understand it you can only appeal on a point of law. But if the ruling of the Appeal does not follow case law, you might have a case.

 

If you were notified of your venue 24 hours before the Appeal, I think that was probably because they did not have a local Judge available, and so they used one from another area. That may have meant the Judge/Panel had 24 hours or less to read the documents. Not ideal. That is why YOU and the attendees must be there to ensure that the relevent documents are read and referred to.

Edited July 23, 2011 by Sally44

[babnye1]

Thanks that is really helpful. I'm afraid that this was one of those issues that it was not worth throwing money at - our S&LT witness said this - at present. P

 

My son is 8 and he may need a special school at some point. We tried to get a bit of extra S&LT and a decently trained TA but school and the LA were having none of it. But this as not worth paying thousands to contest.

 

I am prepared to pay when the issue is a game changer but this was not. It was more important that we get out of the school. So, we had just taken both children out of this school and were looking for a new one. The school were always going to lie about progress, grades, training etc. One of the TAs who worked with our son confirmed this and I have personally experience of it face to face. And they have done it with the S&LT's and LA's assistance.

 

I had thought I would instruct solicitors so I could challenge the lies but lies are lies and I would look ridiculous. For example, the head, S&LT and LA were pretending my son has had a S&LT programme in existence since last October when a S&LT came in to do the statutory assessment. This is rubbish. They have issued a report saying he has a therapy programme after a referral last year (it was a SA not a referral) and that he has had regular half-termly visits and targets and reviews. This is complete lies. But if school, the S&LT and the LA all say this happened, what are you supposed to do?

 

The Tribunal would have thought I was crazy.

 

So the most important thing was to get out of that environment. My solicitor agreed after speaking to the LA the afternoon before the Tribunal when they would not let her speak to senior management (LA Ed Officers don't make decisions here). And she is a hugely experienced solicitor.

 

So, I had a choice of going on my own and facing them all and basically questioning them on their lies or just leaving them to it with a letter explaining our diffiuclties in both attending. I did the latter. Perhaps I'm weak but I have battled our way to a decent statement (all the amendments were mine) and I attended lots of meetings to argue our points but I know these people had been meeting to cook up their stories and I would have looked ridiculous unrepresented.

 

I was prepared to face whatever came my way BUT there does appear to be an absence of reasoned decision-making (perhaps because the Panel are not used to making decisions by themselves!)

 

As you say, whether it is worth reviewing is a different point.

 

We may move counties. Will a sendist ruling that has gone against us make things difficult for us.

[Sally44]

"I had thought I would instruct solicitors so I could challenge the lies but lies are lies and I would look ridiculous. For example, the head, S&LT and LA were pretending my son has had a S&LT programme in existence since last October when a S&LT came in to do the statutory assessment. This is rubbish. They have issued a report saying he has a therapy programme after a referral last year (it was a SA not a referral) and that he has had regular half-termly visits and targets and reviews. This is complete lies. But if school, the S&LT and the LA all say this happened, what are you supposed to do?"

 

This is why it helps with the Statement quantifies and specifies.

 

But you can also ask the SALT to send you a list of her termly dates when she will be seeing your child, or reviewing his progress. You can ask to meet her in school.

 

You can ask the school to produce a daily timetable for son which details the 'therapy' on it so that you know exactly what happens each day eg. 9.30-10.00 practise SALT targets with TA.

 

You can also ask the SALT to identify targets to be included on the MEP. If you get one specific target from SALT each term, they have to state if the target is achieved. Make sure the MEP target is SMART.

 

You also need progress to be measured against standardised assessments. Not just observations or curriculum based assessments. You need the SALT to use the ACE or CELF assessments (all, or most subsections) so that you get percentile, standard scores or age related outcomes. From that you can measure progress.

 

The same applies for the EP. They too need to carry out standardised assessments such as the British Ability Scales II or others (there are lots of them).

 

School can carry out reading tests and give age related results.

 

If you have that kind of info it is easier to demonstrate that with xxx level of support he has made xxx level of progress against his xxx level of cognitive ability. And whether that is good progress or not.

 

If he is 8, then it maybe better to see what you can do about having the Statement as specific as possible. It has to be quantified and specified by law. If the ruling hasn't done that you may have a very good case and the organisations I mentioned should be able to help you with that.

 

From that point you then need to let them get on with it and see if they can demonstrate progress - but use the suggestions above to try to get some facts on paper and in MEPs.

 

Then save the next battle, if you need to have one, for year 6 transfer year. Unfortunately the way the current system is, you do have to prove failure before you can secure additional provision or a special or independent placement. It is horrible to go through that process, and in my case I honestly did not think that we would ever sink to the depths we did.

[babnye1]

Sally thanks for this but:

 

1. I have a quantified and specified timetable. Believe me - professionals comment they have not seen anything as specified in this county. It makes no difference if people lie.

 

2. I have a timetable but they've lied about what's in place.

 

This is not a case where provision has fallen down because of lack of specification or quantification. I have tried very hard to cement provision to the floor by law but this has not stopped people pretending things have been in place when they haven't.

 

Additionally, I have pursued baselines assessments and measurable provision and ended up receiving a 'vexatious correspondent' ban (the LA can describe you as vexatious and issue a ban on you contacting anyone save a complaints manager for 6 months - no warning, no appeal, 3 weeks before Tribunal) just because I was asking questions about provision not being in place and measurable interventions.

 

My wonderfully specified and quantified statement has not stopped them lying and that is a lesson to be learnt. If you are not in the right school with the right services, you cannot make these people improve their practices or change their ways with a statement

[babnye1]

That should be 'quantified and specified statement'.

 

I do appreciate what you say and I think you are right. Our S&LT said the same thing. We will save our battle.

 

The ruling might not be helpful but the Tribunal process made them agree to things being put in the statement that would never have been there without it so some good has come from it.

 

I agree that is a case of just letting them see if he makes progress but we could not have done that at this school as they would have happily watched him slide in his grades while lying aboout them and about other progress.

 

You can't stay where you don't trust people.

 

Anyone know any good schools?!

[Sally44]

Sally thanks for this but:

 

1. I have a quantified and specified timetable. Believe me - professionals comment they have not seen anything as specified in this county. It makes no difference if people lie.

 

2. I have a timetable but they've lied about what's in place.

 

This is not a case where provision has fallen down because of lack of specification or quantification. I have tried very hard to cement provision to the floor by law but this has not stopped people pretending things have been in place when they haven't.

 

Additionally, I have pursued baselines assessments and measurable provision and ended up receiving a 'vexatious correspondent' ban (the LA can describe you as vexatious and issue a ban on you contacting anyone save a complaints manager for 6 months - no warning, no appeal, 3 weeks before Tribunal) just because I was asking questions about provision not being in place and measurable interventions.

 

My wonderfully specified and quantified statement has not stopped them lying and that is a lesson to be learnt. If you are not in the right school with the right services, you cannot make these people improve their practices or change their ways with a statement

 

 

"A vexatious correspondent ban" - that's a new one on me. I might end up with one myself

 

I know it is very difficult and I know that people lie. I'm in the process AGAIN of having had the EP and the Head of EP services come to our house and talk about things and promise things, and then completely deny everything they said to me and my husband!

 

The only thing I can suggest is that you do not agree or accept anything unless it is in writing or unless you have been allowed to record it. Apparently, my LA said that if you are going to record a meeting that you must produce two copies with you keeping one, and giving the other to the LA. In the above instance I had said I was going to record it and the EP service talked me out of it. Wont fall for that one again.

 

The LA have said I have been "contacting them daily with unreasonable requests". But when I asked them for evidence of that, they didn't take it further.

 

It is difficult. They are playing a game. They do have a legal department backing and advising them. Just try to play it by the book as much as you can. Try to never get emotional or angry or give them any evidence that would look bad on you. But it is perfectly acceptable to say that you do not accept any information unless it is in writing, or unless it is recorded.

 

And it is difficult when they say provision has been put in place, when you know it hasn't. In my case the school said they had done x, y and z, but would not allow me into school to see it in place! Again all you can do is put the request as sweetly as possible that you would like to come into school to see the "reading programme", "observe the social group" etc and see how school respond. Again ask for every response to be put in writing. I am at a stage where the school refuse to respond or put anything in writing anymore! But that in itself is useful evidence when you do eventually go to the Appeal yourself, with your witnesses, because you can ensure that the Panel do question the school/LA about the fact that they did not respond to your letters.

 

Try to keep a very close eye incase you can prove that things have not been done. For example my son's Statement said that a certain type of software should be made available. The school assured me that they had provided it. Then 9 months later the SALT (a new one), let slip that she thought that xxxxx software would be really useful for my son. So I said "But I thought he already got that as part of his Statement". But he didn't. So I complained at so the LA provided it to the school. But again I have no evidence that they even used it - just that they supplied it.

But the final clincher is always going to be that your son is not able to attend school, or is not making progress and that your expert witnesses have recommended a high level of support or a specific special or independent placement.

 

Try not to let them wear you down.

Edited July 24, 2011 by Sally44

[Sally44]

I have found that the IEP process has also been useful, because I can demonstrate that they have never set a target for emotional literacy or functional use of language.

 

So try to get targets into the IEP. If they don't set a target in one of his areas of difficulty, it is going to look bad at Appeal. They can't argue that they 'have' met his needs, when they cannot demonstrate how they have achieved that or monitored it.

 

I have tried for 3 years to get some evidence of how my sons difficulties with emotional literacy and social communication have been addressed and what therapy has been put in place, what was the outcome and how was it monitored. There is no evidence of anything. Infact the school have admitted that they had "no concerns" in those areas! I am not expecting miracles, but I do expect to see some target and how it was delivered and what the outcome was and how they built up from that and generalised the skill or improved on it. Not a big fat zero. And at the Appeal they cannot just talk about what they have done. There is no evidence.

 

Have you ever done a Data Protection Act search? I would recommend doing one just so that you have enough time to get the correspondence in to submit towards any future Appeal. Leave them plenty of time to email eachother and have meetings without you there. It is VERY interesting what turns up. Indeed my LA now no longer keeps anything on record. Telephone conversations and meetings are not put on file. So I have some very incriminating evidence from the earlier years, and have a total lack of anything for the later years. But they cannot argue that they have had meetings and worked together when there are no file notes or records of any conversations or meetings at all.

 

And also look for contradictions. I had the OT say my son "had made lots of new friends", yet his SALT targets are to "talk on topic - respond more than once in a conversation - add a question or thought on topic" and he failed each one. He also failed targets to name children in his class, or comment on their characteristics. So how has he made good friendships when he has none of the skills needed to do this???? But a good EP/SALT should pick up on this and bring it up in their report and as independent witnesses at Appeal.

Edited July 24, 2011 by Sally44

[babnye1]

Thanks for these posts. I can see how these things develop so that you end up putting everything in writing.

 

In fact, I raised this as a reason for negotiating in writing with the LA and then I got the 'vexatious ban'.

 

Interesting point on targets. The Tribunal ruling comments on good progress academically and in other areas but I have seen no progress agaisnt IEP targets and the S&LT targets were argued about at a 3 hour meeting in which we could agree no real progress and the same targets were kept in place.

 

Do you know if Tribunal hearings are transcribed or is there is some kind of record? I would like to see what they said when they thought there was no one there to hold them to account.

 

I think these people should take lying in Tribunals more seriously!!

[Sally44]

I'm sorry, I don't know anything about what records there are from Tribunal when only one party turns up. This is such a shame, because although you didn't feel able to go, if you had been there you could have counter argued, or pointed out the examples where no progress was actually seen. Without you, or anyone else there, they have had just their side of the story laid infront of the Panel.

As tough as this sounds, and it is only my opinion, if you cannot attend there is little point going to Appeal. But it is done and dusted now.

 

An Appeal has a Judge and is almost like a court of law because the Statement is a legally binding document. If this had been a murder case, with you accused of murder, it is like you let the prosecution present their case and then did not have anyone for the defence at all in the court room to defend you, and you didn't have any witnesses.

 

Next time, make sure you go.

Go through your Bundle of documents yourself (even if you have a solicitor), and draw up a contents page from the paginated numbers in the Bundle eg. pg 102-106 EP annual review report.

 

Go through the Working Document and annotate every single need and provision eg. if the SALT says there is a need for 1:1 direct therapy quote that in the marginal comments next to that in section 3 of the working document eg. pg 110 SALT report.

 

If you do that you can be going through the working document at the Tribunal and can quickly refer the Panel to where it states the need and where it states the provision. When you go to Appeal you are not going there to talk about what you feel or think. You are going to point out and demonstrate via the reports and other documentation where it says each item you say should be included in section 2 and section 3.

 

It takes alot of hard work to annotate it all and do a contents list of the Bundle, but it will pay off because you will be able to prove everything you are asking for.

Edited July 24, 2011 by Sally44

[Sally44]

In my own case there is a real possibility that the Appeal date maybe set by Sendist and my attendees will not be available. If Sendist do that I will contest it, but if they refuse to amend the date I will pull out. I have an Annual Review in September, and it would be quicker and better to Appeal after that rather than go through an Appeal process without the information and attendees I need.

Sendist is like a court of law. They are not there for the parents or for the LA, they are supposed to be impartial. And in that scenario, there is no way you would go into a court of law if you did not have the evidence you needed to at least have a good case.

Edited July 24, 2011 by Sally44

[babnye1]

Thanks Sally. I know you are right but our Tribunal bundle came a couple of days before Tribunal and a new index was then only sent on the weekend before. There was no information in there about IEPs etc, no records of progress. It just contained the statutory assessment and statement reports and that was it. What I am saying is there was no chance to prepare for cross-examination on those types of issues and as these people lie, we would have got into a debate which a Tribunal panel would have taken as me being bonkers and I don't expect the ruling would have been much different.

 

I would have had to do this on my own as my kids are not in school and they moved the Tribunal to another city so there is no way both of us could have come and I'm afraid I would have found that impossible given the undoubted lies that would have been told.

 

It is very important to note that although the Tribunal is a court of law, it is very different to adversarial proceedings. This is not a murder case where you have to defend yourself. Tribunal proceedings are inquisitorial and not adversarial and the Tribunal is under its own duty to ensure it has read all the information before it see MW v Halton Borough Council [2010] UK UT 34. They have a duty to make sure they have the necessary information before them on which to make a decision irrespective of the evidence adduced by both sides. Indeed, the ruling makes a particular point of saying how carefully they read the reports because this was in my absence but then the ruling demonstrates that this is not in fact the case as it considers all EPs to be in agreement about provision which is very far from true.

 

Anyway, the fact is things developed in the run up to Tribunal in a way which I had not predicted. I instructed a mediator in May and was going to try that avenue. We wasted three weeks with her getting to grips with the case before writing a letter but by that time I had just been presented with a 'vexatious order' banning me from making contact with the LA so we sought legal advice.

 

The papers went off again and after a week I was given a figure for counsel to attend Tribunal of £2500. So I had to ask for the solicitors to deal with it themselves by trying to get to a compromise. But we were waiting for our own S&LT to do an update. This took another week's wait for the appointment and a week and a half after that before we got the report.

 

The updated S&LT reports were exchanged only a week before Tribunal. It was only at that point that it became clear there was no extra flexibility. However, in the meantime, the attendance of our S&LT at school had prompted a flurry of lies about my son's provision from head, SENCO and teacher. The S&LT took a very dim view of school's ability to manage my son and noted he was not even included in the sports day. She felt the school did not know what they were doing even if they were trying.

 

My son has been stuck with an absolutely rubbish TA all year. School have not given her any training and she messes even the little things up. On the day the S&LT came in, there was supposed to be a school picnic for sports day. My son doesn't like picnics but I persuaded him to do this as a family event. The stupid TA then told us it was not on and even thought I questioned her she was adamant she had double checked so I had to tell my son we wouldn't be picking him up and he would have hot dinners. This turned out to be completely wrong, so my son got distressed and they rang my husband who was working at home to collect him even though I was already at school with the S&LT. I then found him screaming in the corridor that afternoon, upset about something and being ignored when school had just told our S&LT these 'meltdowns' never happen.

 

The head could see I was angry and emailed me to ask me to attend a meeting with her chair of governors at 8.40 the next morning. This was clearly to confront me as she was expecting some kind of complaint. No doubt I'd get the same vexatious line as the LA had given me (she knew all about that tactic).

 

So I withdrew the kids because I'd been sending there inspite of my views on the school for a very long time and my son really had not attachment to it. I was waiting to get Tribunal over with but I'm not being treated like a child by alot of bullies and liars.

 

So this is how we ended up , a couple of days before Tribunal, trying to sort it out. My solicitor told me the LA were refusing to compromise as they wanted the ruling as I had been difficult and they want to 'teach me a lesson'. I have a review of an LGO complaint pending and they are covering their backsides.

 

So would this have been different if I had attended? No. They would still have lied.

 

What I should have done however was to concede to avoid them getting their ruling in the first place.

[babnye1]

I have tried to do the right thing but in the end I should just have trusted my own instincts and not got alot of expensive lawyers/mediators involved.

 

We should have dropped the whole thing and moved elsewhere. The plus point is that the statement is far better than it would have been had I not pursued Tribunal - the ruling has made no difference to it - as all the work had been done.

 

But this is what happens when you are strung along trying to make everything work.

[Sally44]

If you end up in this situation again, make sure that you submit the papers that are relevent to prove your case.

 

If the LA/School do not respond to your written letters that is okay. It will show the Panel that you have contacted the school/LA and have sought the information and they have not responded. This may prompt the Panel to ask the questions themselves.

 

Yes they can lie at Tribunal, I'm sure it has happened many times. It happened to me. The LA Case Statement is one long lie.

 

But, for example, if you are trying to show that the school/those involved with your son are not adequately experienced or trained, then send a letter to school asking details about the qualifications and training of staff. I did that and found out that no-one in the school [or even within the LA] has an additional qualification over and above a teaching qualification for either autism or dyslexia.

 

This means that when we go to Appeal, when the Panel look at the reports which state the provision he needs, it is clear that the LA cannot meet his needs. They will have to either agree with our placement, or buy in a suitably qualified member of staff.

 

Did you do a Data Protection Act Search? If not consider it next time.

 

Try to put this down to experience to be more prepared and wiser for transfer year.

 

Although the Panel are supposed to read all the material it does involve alot of paperwork and it is not surprising that some aspects of it will get overlooked or forgotten if there is not something there to highlight them. But I totally understand that you could not get the Tribunal. You can put in a Request for Changes form to ask for a local venue.

 

I do not there are some positives in the Statement. Will they be returning to the same school? As you removed them, didn't the LA threaten you with the EWO?

[babnye1]

Thanks Sally. I withdrew them and said I was home educating (quoting relevant regulations) until we found another school.

 

The EWO does deal with HE and ensures compliance with LA safeguarding duties so I've had a letter from her. I've told her we will be in a new school by Sept so she might want to wait until then to pursue it.

 

The wonderful thing about all this is that I have my boy back. My son is a different child out of school and he is being his lovely quirky, imaginative self again. He told me today 'they didn't appreciate me at school' - bless, that is really sad from an 8 year old!

 

Also, LGO looks like they may be reversing their decision not to declare maladministration for failure to provide in my son's statement. How does that fit with the lies they all told Tribunal??

[Kathryn]

It does indeed sound like a nightmare. It's always better to be there in person, the panel are human beings and they need to see the child at the centre of all this: only the parent can put that across. If the other side does try to tear you to pieces, you will get the sympathy vote.

 

When was your Tribunal? Are you still within the 28 days to pursue a review or set - aside? Your solicitor will no doubt be advising you on that.

 

K x

[Sally44]

kathryn, I don't know about the 28 day review or set-aside, can you elaborate?

[Kathryn]

It's complicated but there are different ways a Tribunal decision can be looked at again.

 

A review can be granted if the decision was based on an alleged error in law, or if there has been a change in relevant circumstances since the decision was made. If a review isn't granted or if it results in no action, the Tribunal must consider whether to give permission to appeal to the Upper Tribunal. The test is whether there is an "arguable case".

 

A set aside can be granted if there were certain procedural irregularities in the hearing: the main conditions being that a document wasn't received in time by a party or the Tribunal, or a party or their rep wasn't present at the hearing for justifiable reasons, or there was an obvious error in the decision or on the part of the tribunal staff. The Tribunal - (either the same Tribunal or a new one) can change all or part of the decision or set the decision aside and remake it if in the interests of justice to do so.

 

There's a strict time limit of 28 days for taking any further action after a tribunal decision is received.

 

K x

Edited July 27, 2011 by Kathryn

[babnye1]

The Tribunal are claiming FOI Act protects them from non-disclosure of the chair's notes. How can that be?

[Kathryn]

I don't know. Best to contact the Information Commissioner for advice on this.

 

http://www.ico.gov.uk/Default.aspx

 

K x