Jump to content
RobynH

Legal Aid - Appeal to Tribunal

Recommended Posts

First ever post! Wonder if anyone knows how Legal Aid works going to SENDIS Appeal?

 

Without boring you with details, I have appealed part 2, part 3 and part 4 of our daughters amended statement and its been registered!

 

Since then, have discussed the situation with Legal Aid who have assigned a solicitor. However my "inner alarm bells are ringing". I am not convinced this person is remotely interested in our daughters education. Repeatedly goes on about how busy he is etc....

 

I am very grateful to be receiving Legal Aid however concerned this solicitor wants to 'cut and shut'! Do I have to keep this solicitor?

 

Many thanks

Share this post


Link to post
Share on other sites

I don't know about legal aid.

Can legal aid themselves answer these questions if you ask what can you do if you are not happy with the assigned solicitor?

 

What age is your daughter.

What reports/assessments have you had done.

What kind of placement are you looking at ie. LA maintained mainstream or special school or an independent ASD school.

 

I have been to two tribunals, one in 2009 and another in 2011.

 

In 2009 I had a solicitor. He was expensive. I felt he did an 'okay' job, but not want I really wanted. Ie. we got all we asked for in parts 2 and 3, but had no evidence that our choice of placement was the only one that would work so we did not ask for it. That was not wholly the solicitors fault, as you do need evidence that mainstream is not working. However there were things that could have been done such as a Freedom of Information Act search, which would have bought up paperwork I uncovered using a FOI search in 2011, which might have got us the placement - but that is all with hindsight.

 

In 2011 I represented myself. I had an advocate from Network81 help me get my case statement and working document ready. I was much better prepared in 2011 because I had done all the research. I had got the assessments and paperwork. I had annotated each and every part of a report or correspondence that related to parts 2, 3 or 4 of the Statement. So I knew the case inside out and back to front.

 

We sought an independent ASD placement and won it. We also sought on top specialist dyslexia teaching because my son has dyslexia and dyscalculia. We won an additional 10K pa. for a teacher qualified to both teach and assess.

 

The reason I am telling you all this is that each and every need must be in part 2, and part 3 must quantify and specify how each and every need will be met. If there is a need/diagnosis that your choice of school cannot meet, then you need to know that, and you need to get quotes for what it would cost for that school to buy it in - otherwise the placement you want could fail because it cannot meet all your daughters needs. So VERY important that you know what the school can and cannot do and what they deliver under their fixed fees. If her needs require extra funding, then you must be asking for that in your appeal. That would also apply for any LA maintained school, but when you have let me know what type of school you are seeking I can be more specific in my advice.

 

www.ipsea.org.uk is a very good website to look at because it has legal outcomes for specific issues relating to SEN, and may well have the very issues you are going to tribunal about.

 

Also only annotate your copy of the Working Document [ie. statement]. Do not highlight everything for the LA, leave them to do their own if they bother. But you need to be able to quickly refer to each piece of evidence you have to prove what your daughter needs.

 

You need to have visited any school the LA say could meet her needs and you need evidence that they cannot - which could be any number of things ie. she needs small class sizes of no more than 8 and the LA proposed school has 30+. If the LA say they could take her to a unit for some parts of the day you need to know IF they also feed children across to mainstream because if they do they cannot fulfill the teaching group size of 8 and if your daughter needs that type of thing she needs it every day and for the whole day.

 

Anyway, come back with some more info if you can so I can give you more specific advice.

 

When is your appeal date.

Edited by Sally44

Share this post


Link to post
Share on other sites

Sally44 - you are amazing....thank you for your reply. I should point out, I am probably a control freak with regard to any solicitor (legal aid or not) as I don't think any one can look after my daughter's interests like her mum!

Our daughter is 13 years old - diagnosed ASD & ADD in 2010 (we lived in France for 5 years) - thus a late diagnosis. She began high school in mainstream however she began self harming. Blindly, we thought Home Education would solve things but found it unsustainable. We cannot afford to mess this up again. She has not been in school since February 2012 - Year 7. She should have started Year 9 this month!

LEA has re-assessed (took over 8 months) and has offered a maintained school for "emotional and learning difficulties" however I feel its wrong. Previously identified an independent school however now aware of events which raise concern regarding its suitability with the implementation of a controlled self harm procedure.

 

Earlier this year, the same solicitor was previously engaged when I noted in Part 4 that travelling any distance with our daughter is extremely difficult as anxiety and sensory levels are overwhelming, she produces physical symptoms e.g. panic attacks, sweating, nausea etc. The school nominated by LEA is 38 miles each way. Our daughter clings to what makes her feel safe and refuses to go any where without either parents or brother. The solicitor considered less than 60% chance of winning the case so he withdrew services. Since then, I have written Appeal on grounds of:

  • Part 2 does not provide sufficiently detailed and specific information concerning the nature and extent of current special needs.
  • As a consequence of the deficiencies in Part 2, Part 3 is inadequate and does not set out specific, detailed and quantified provision.
  • The provision named cannot meet her needs because of the complexity, high levels of anxiety and she would not have an appropriate peer group or curriculum in an 'Emotional and Learning Difficulties' school.

Having contacted Legal Aid again, they assigned the same person. On the telephone, he said my appeal was "rather picky"! I think he has lost sight of the legality of a Statement! He also states when we have selected another school, he will "instruct an independent educational psychologist to provide a view on whether the statement should be amended in the way I wish and determine that the appeal has a reasonable prospect of success". The educational psychologist will be asked to provide an opinion on the suitability of proposed and the school which I identify as your preference placement. Date of Appeal is 04 February 2014.

My confidence in the solicitor seeing this through to the end is limited. Will be attending a "Working Document" workshop next month with SOS SEN in preparation for what I expect to be inevitable!

As the solicitor plans on only engaging an educational psychologist, I feel this will limit our chance of successful appeal. Currently considering getting other experts involved. Do you know any near South East?

 

Now have a mad dash to find another school. Choice in Surrey seems limited for girls. Do you have any suggestions?

Million thanks...............Sorry for inundating you with questions - my head is spinning!

 

Share this post


Link to post
Share on other sites

I presume she is cognitively able ie. around average IQ. An EP would also confirm this.

 

The LA MUST go with your parental choice of school unless they can prove it is not a good use of their resources [ie. they have something that can meet all the needs and which is cheaper], or that her placement at that school would be to the detriment of the other pupils.

 

So you have to prove TO THE PANEL, forget about proving to the LA, they need to fight their own case at the Tribunal; that your parental choice of school IS THE ONLY ONE THAT CAN MEET ALL HER NEEDS. And remember what i've said about checking that they can meet them ALL from their standard fees. If they cannot, then get quotes and agreement with school that they would buy in whatever it is that they do not have.

 

To get an independent placement you need specific things that LA mainted or LA special schools do not eg.

Small class sizes of no more than 8 pupils [EP report should state that]

In a similar peer group [EP report again, ASD specific, and other diagnosis specific eg. ADD, Anxiety etc, any specific learning difficulties such as Dyslexia [EP again}, Dyspraxia and Sensory processing Disorder [Occupational Therapist report]

You also need a Speech and Language Therapists report because they will have language and social communication difficulties/disorders that must be met with therapy 1:1 and in group work with similar peers.

 

Regarding Occupational therapy. Do you have a diagnosis of "Sensory processing Disorder"? If so, you need an independent OT assessment to state that your child MUST have xx hours per term of Sensory Integration Therapy [which no LA school or the NHS provide], also same OT therapy for Dyspraxia [again NHS OT do not provide any service for this].

You need to write to the NHS Head of OT and ask them if they do provide Sensory Integration Therapy and if they have a suitably qualified OT that has passed the relevent Sensory Integration Therapy Modules [they might have one who has passed the modules, but the NHS does not provide the therapy], you need that in writing. That proves that your daughter would not get that need met in school or via the NHS and therefore ONLY your choice of school [which I hope does provide such therapy], can meet that need.

Also anxiety, does the school work with CAHMS or bring in suitably qualified psychologist to work with this group of children.

What diagnoses do the children at your choice of school have etc.

 

You need as much evidence of diagnosis in writing as possible to prove the disorder to go into part 2. Then you need the relevent professional to have stated specifically what your daughter needs in terms of hours of therapy per term.

 

SOSSEN seminar should be useful.

 

Make sure you annotate your working document - but don't let the other side have a copy of it annotated.

It really helps when going through the WD for you to be able to refer quickly to what a professional, or correspondence has said about your daughters needs and what support/therapy she requires to meet each and every one of them.

Share this post


Link to post
Share on other sites

This is why the IPSEA website is so useful http://www.ipsea.org.uk/AssetLibrary/How%20we%20can%20help/Taking%20Action/Case28.pdf

The above specifically address 'how specific' a statement should be. More importantly it says what the Judge [Tribunal Panel] have decided in earlier cases. Once there has been a certain 'interpretation' of the law, that interpretation stands and each Tribunal Panel has to fall in line with that reasoning. The only way that can change is if there is an Appeal of that Decision and at the Appeal they make a different interpretation of the law, which then becomes the new interpretation of that specific piece of law - until it is appealed again etc etc.

Share this post


Link to post
Share on other sites

This is what case law says about a school meeting the specific needs of the child. For "cerebal palsy" just change to autism/ASD and he same advice applies http://www.ipsea.org.uk/AssetLibrary/How%20we%20can%20help/Taking%20Action/Case30.pdf

 

This is what Ipsea says about transport http://www.ipsea.org.uk/AssetLibrary/How%20we%20can%20help/Taking%20Action/Case29.pdf

 

 

Remember that if you can prove to the Panel that the LA's choice of school cannot meet her needs, then the other arguments don't even get discussed. So you need to visit the LA school they have suggested and ask them very very specific questions.

 

How many children in the school.

How many per class

How many with a diagnosis of autism

How many with [any other diagnosis/difficulty your daughter] eg. Sensory Processing Disorder etc [and if your child has this diagnosis highlight in your Case Statement to the Tribunal Panel how they would be frightened by outbursts/shouting/behavoural issues of other pupils].

Does the school use restraining methods on the children.

What is the criteria for children to go to that school [eg. emotional/behaviour problems] and what is the cause of that ie. neglect, abuse etc.

Does the school use TEACCH or any other autism approach to learning

What qualifications do the teaching staff have on top of their teaching degree. Do any have a qualification for teaching children with autism.

Is there a speech therapist and occupational therapist employed on site. [if there aren't any then the reports you have will state she needs xx hours per term of 1:1 therapy. How can that be met? If the LA buy it in, or state they will buy it in your need to highlight how your choice of school has those professionals employed on site, where they will all meet and joint plan the learning/therapy that your daughter needs.

If your daughter is anxious and refuses to engage is any therapy how will the LA re-arrange the SALT or OT visit and pay for that? In reality your child would miss out on those therapies because they would not be able to re-arrange them before the next therapy session.

In your school they [sALT/OT] can simply see her the next day, or later on the same day.

And at the Tribunal you can highlight how this can only happen in your choice of school because you have the proof of your experience to date to show that no-one will see your daughter and no-one can meet her needs, and that is why she has been out of school for so long with no-one seeing her.

Is there a psychologist employed on site

What is the cognitive ability of these children and what level are they working at.

 

etc etc. Just think of every single need she has and ask the LA choice of school how they would meet that need and what professional they have on site to meet it.

 

Also very important that any reports you get state " a suitably qualified SALT [or OT] delivers the therapy. Otherwise the school/LA may say they will get in a SALT/OT to train up a teaching assistant. That is NOT THE SAME THING!

Edited by Sally44

Share this post


Link to post
Share on other sites

Hi I don't know anything about legal aid, I just wanted to comment on your picture: "Keep calm and accept autism!" Fantastic! I love it. Thanks. Wishing you luck with your daughter's statement. I say always go with those inner alarm bells! I'm sorry to hear home schooling didn't work out. Sally44 always gives such amazing and thoughtful advice! A very interesting read. Hope it all works out, I look forward to reading your updates. :)

Share this post


Link to post
Share on other sites

Hi Robyn

 

I was on another sossen workshop that you went to! Similarly, my son is same age and was out of school since Feb 2012 however we are further on in appeal process and have had agreement on school we want and my son started this term - still potentially have tribunal next week but on a minor issue.

 

Unfortunately I know nothing about legal aid - have you been in touch with these people: http://www.childrenslegalcentre.com/index.php?page=education_legal_practice

 

Given this solicitor says you're being picky, it really sounds like he is going to be little use! As you're entitled to legal aid would be good to get a decent person with right experience involved. How much does the legal aid cover? Does it help with all preparation for tribunal and provide someone in tribunal for you, or is it just for a limited number of hours?

 

You say you're a control freak and that you are the one who can look after your daughter's interests, so you could just take control and deal with it all yourself. We have done all the work ourselves up to this point, with advice from sossen, but now have a solicitor involved to instruct barrister for tribunal - so it is possible for you to do it all and you could represent yourself in tribunal supported by expert witnesses if needs be.

 

You have until final evidence date to name school - we were really struggling with finding a school too - although obviously better to sort out sooner rather than later if you can in case LA agree to it as you need your daughter in school ASAP.

 

Your next step now is to get independent reports done ASAP so that reports are ready to submit as final evidence. Have you had any done yet? How much can you afford to spend? We went for everything in end EP, SALT, OT and psychiatrist. I think in your case it would be worth going for all of those too - but likely to cost at least £3500 for all of those.

 

The next deadline you probably have is naming who will attend tribunal, so you will have to give some thought to which witnesses to take and whether to have a legal representative.

 

Once you have school name and independent reports, you should then write an updated statement of case following on from your appeal doc and highlighting everything you want based on info in the reports, and then send all off for final evidence deadline.

 

After that you'll be onto working doc - which is quite hard work! And then trying to get LA to agree to as much as poss in working doc ahead of tribunal.

 

SOSSEN Working Doc Workshop is brilliant, so you will be well prepared.

 

Having just been through all of this, I'd be happy to help you out.

 

Will have a think of some school names, but I know you will probably have tried them all or they will be too far - I was worried about distance too, but so far my son has been managing (and I've been driving!)

 

Have the LA provided any home tuition? I've also been through that.

 

I can give you names of the independent professionals we used, and I probably know names of some others (you may have heard of them through sossen already though) In fact just cancelled SALT, EP and psychiatrist for next Thurs (tribunal) so they may have availability!!

 

Sharon

Share this post


Link to post
Share on other sites

Schools - I think best match likely to be The Priory Lodge School, Roehampton or Thames Valley School, Reading. I know these are a distance, but give it a go and take your daughter for a visit (go by yourself first though to check out), try not to mention anything about distance etc. to your daughter just focus on positives of the schools and be very conservative if she asks how long the journey takes!

 

Other school is Blossom House, Wimbledon, but I think it is probably not suitable.

 

Do you know of the proposed ASD free school for Weybridge - unlikely to be any good for you though as it is in very early stages of proposal and so not going to happen for a year or so I would guess.

 

Or Knowl Hill School, Pirbright, really a dyslexia school but it may turn out to be right environment. Or Moon Hall College near Reigate, again dyslexia school but accept others who need small school environment.

Share this post


Link to post
Share on other sites

Regarding evidence you submit to tribunal, whether that is correspondence or reports, remember that you just have to submit them within the deadline for submissions. Don't send them in too early and give the LA lots of time to go through it all. Don't have independent reports done too early because it could allow the LA to get their experts in again and re-assess just before the Tribunal. Reports should not be done within 6 months of an earlier one, unless the professional is going to carry out different standardised assessments. So be aware that the LA may try to get permission for someone to assess your child before your independent ones can get in. This is less likely as your child is not in school, as LAs can be sneaky and send the EP into school without the parent even knowing. But just incase you are asked, just be vague and say that you are having your own assessments carried out and therefore need to speak with that professional first so that assessments are not duplicated.

 

Independent professionals are usually booked up quite early, so try to decide who you are going to use and get a date sorted asap.

 

You can submit evidence after the deadline date. You take it with you, with copies for every panel member, a copy for your team members and one copy for the LA side, and you ask the Panel to look at it on the day and include it in the evidence. The LA may refuse for it to be admitted as evidence, which then leaves the Tribunal Panel to decide if it is relevent or not and if it is considered relevent they will include it.

 

We had a diagnosis of an Anxiety Disorder from NHS Clinical Psychologist come through the day before the Tribunal. I had been pressing her to name the elephant in the room, so that I could ensure that my sons needs in this area were included in the Statement and provided for. We admitted it as late evidence on the day. The LA refused to admit it, but the Panel agreed it was relevent and included it. And it was a major part of our winning the case because it proved he had deteriorated to such a degree that he now had a mental health diagnosis of an Anxiety Disorder and OCD. I think that the NHS Clinical Psychologist delayed giving the diagnosis because she was concerned that if she diagnosed him, her department would then become responsible to give 'therapy', which would cost them money. But she came good in the end.

 

You can make changes or request information via a "Request for Changes" form, which you complete and send into SEND. A judge then looks at your request and makes an Order forcing the other side to do what you have requested, or deciding against your request. We submitted a number of these prior to our tribunal.

 

Also, just make sure that YOU keep to the deadlines for SEND. Do not remind the LA if they are getting close to a deadline and have not done something. Let them break the law. Do not do anything that helps them. In our case there was an Order made by SEND that said the LA must detail the costs of the therapy we were asking for even if they did not agree my son needed them because the Panel might find in our favour. The LA did not get those costs together. I didn't remind them they needed to do it. So on the day the Panel had to go with the costs I had submitted as the LA hadn't bothered. This again made it all look very bad for them. They came up with some figure on the day for what they thought the SALT costs would be. One of the Panel members said "I don't think that figure would cover her travelling expenses, nevermind the therapy." So let the LA dig themselves into a hole as they often do. LAs try to be as vague as possible. You need to have all the answers.

 

For example as we were asking for Occupational Therapy ie. Sensory Integration Therapy, the LA said that they had 'recently' agreed funding for an OT to go into my sons former primary school for 6 hours per term. We already knew about this via the school because I had been and asked them some very searching questions and this 'potential OT' came up in conversation. So we asked the LA what her qualifications were, were those 6 hours for my son or for the whole school. Would she be delivering a sensory integration therapy programme as detailed by our independent OT and finally if they had actually appointed anyone into this position yet. Apparently the LA said that they had 'found' someone but had not appointed them yet. They could not confirm if they had the relevant qualifications. So we asked them to phone them to find out. They phoned and guess what, the OT did not have the relevant qualifications to carry out a sensory integration therapy programme. So don't be afraid to ask that someone finds out information on the day, because sometimes information is crucial and that is why the LA don't provide it.

 

It is also very important to keep in contact with the LA [if they are keeping in contact with you], so that as many of the issues as possible can be resolved before the Tribunal itself. And also go through the things you are asking for and be prepared to let some of the less important issues drop if you can win on the major issue ie. the placement. Keep that as the main focus. For example, no point arguing with LA for hours about whether your child needs a place to go to during lunchtime that has adult support, when you could spend your time arguing that only your parental choice can meet his needs [and where he would automatically have that type of support during lunch/breaktimes].

 

I am worried that this legal aid solicitor does not know SEN law. It is not about being 'picky'. A Statement is a legally binding document and must be a true reflection of the child's needs with provision quantified and specified to meet each and every need. Otherwise there is no point having a Statement.

 

I had help from Network81.org to get my case together. IPSEA can also appoint a volunteer to help with the case, and sometimes to attend tribunal too. But if you talk to any of these organisations, don't say you have legal aid, because you won't get their help if you have legal aid. So see if they can help you and if they can consider dumping the legal aid.

 

It is VITAL that whoever goes to tribunal with you knows educational law. You don't want your legal aid solicitor on the day saying things like you are being 'picky' or 'asking for too much'.

 

We managed to get a couple of very good letters from the CAHMS Psychiatrist, as well as minutes from a multi-team meeting they attended at my sons former school. I had listed her as one of my appointees. Then during a conversation she said to me that her opinon was that "your son could go to any school as long as he was properly supported." Now I could not risk her saying that to the Tribunal panel. The whole point of the Tribunal was that we had tried various schools and none of them had met his needs and he was now out of school for about a year. He needed a very specific type of school with very specific professionals employed on site, to meet his various complex diagnosis. I did not want someone from CAHMS to potentially scupper that by saying things she did not understand the implication of. SEN law is specific. We had evidence that nothing had worked to date. So we were seeking our parental choice of schools as the ONLY placement that would work and we needed everyone on our side to be singing off the same hymn sheet. So I did a Request for Changes form and replaced her with an independent Educational Psychologist. SEND Judge agreed to amend the attendee list. So be very careful who you invite as your expert witnesses, as you can invite anyone, even the LA EP and NHS SALT if the LA are not bringing them. But only invite those who are fighting your corner and who know SEN law inside out ie. independent professionals with experience of attending Tribunals as expert witnesses.

Share this post


Link to post
Share on other sites

Hi Robyn

 

I was on another sossen workshop that you went to! Similarly, my son is same age and was out of school since Feb 2012 however we are further on in appeal process and have had agreement on school we want and my son started this term - still potentially have tribunal next week but on a minor issue.

 

Unfortunately I know nothing about legal aid - have you been in touch with these people: http://www.childrenslegalcentre.com/index.php?page=education_legal_practice

 

Given this solicitor says you're being picky, it really sounds like he is going to be little use! As you're entitled to legal aid would be good to get a decent person with right experience involved. How much does the legal aid cover? Does it help with all preparation for tribunal and provide someone in tribunal for you, or is it just for a limited number of hours?

 

You say you're a control freak and that you are the one who can look after your daughter's interests, so you could just take control and deal with it all yourself. We have done all the work ourselves up to this point, with advice from sossen, but now have a solicitor involved to instruct barrister for tribunal - so it is possible for you to do it all and you could represent yourself in tribunal supported by expert witnesses if needs be.

 

You have until final evidence date to name school - we were really struggling with finding a school too - although obviously better to sort out sooner rather than later if you can in case LA agree to it as you need your daughter in school ASAP.

 

Your next step now is to get independent reports done ASAP so that reports are ready to submit as final evidence. Have you had any done yet? How much can you afford to spend? We went for everything in end EP, SALT, OT and psychiatrist. I think in your case it would be worth going for all of those too - but likely to cost at least £3500 for all of those.

 

The next deadline you probably have is naming who will attend tribunal, so you will have to give some thought to which witnesses to take and whether to have a legal representative.

 

Once you have school name and independent reports, you should then write an updated statement of case following on from your appeal doc and highlighting everything you want based on info in the reports, and then send all off for final evidence deadline.

 

After that you'll be onto working doc - which is quite hard work! And then trying to get LA to agree to as much as poss in working doc ahead of tribunal.

 

SOSSEN Working Doc Workshop is brilliant, so you will be well prepared.

 

Having just been through all of this, I'd be happy to help you out.

 

Will have a think of some school names, but I know you will probably have tried them all or they will be too far - I was worried about distance too, but so far my son has been managing (and I've been driving!)

 

Have the LA provided any home tuition? I've also been through that.

 

I can give you names of the independent professionals we used, and I probably know names of some others (you may have heard of them through sossen already though) In fact just cancelled SALT, EP and psychiatrist for next Thurs (tribunal) so they may have availability!!

 

Sharon

Share this post


Link to post
Share on other sites

How time fly's when I'm having fun. Sarcasm.....never!

Have now identified a school - hallelujah! Struggling to find available "expert witnesses". Hope you can suggest names? Million thanks x

Share this post


Link to post
Share on other sites

The good independent experts fo tend to get booked up months in advance. People like SOSSEN will have a list of people they can recommend which is where we found ours.

 

Where are you based and which experts are you looking for?

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...

×
×
  • Create New...