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County refusing right of appeal(13 Posts)
Bit of a long story, but in March we lost at tribunal to have part 4 of the statement amended to indie dyslexia school. Parts to and 3 were amended at considerable cost to LA! DS was devastated by result and has since refused to go to school. We couldn't take any more of the lies and deceit from school, so have moved to a different area, but within same county (unfortunately!) County have chosen a school for us a, where headteachers has said he can't meet his needs, and have amended statement accordingly. They are now refusing us right of appeal, saying they are following tribunal directives and sending him to mainstream school. They can't do this can they????
You don't appeal to them you appeal to SENDIST. You have a right of appeal. However, a tribunal might not look too favourably if they think you have forced their hand.
It helps that the HT says can't meet need though, but you need this clear and in writing.
Where you say they "have amended statement accordingly" - do you mean that they've changed/removed/edited part 2 (diagnosis) and part 3 (provision) of the Statement so that these parts conform to part 4 (the name of the school)?
If so, that is against case law. Each part has to be done in strict order ie part 2, then part 3. Only when you have part 2 and part 3 can you decide part 4. Part 2 and 3 cannot be altered to match part 4. The relevant case law is on David Wolfe's guide to SEN case law. (Google "David Wolfe barrister noddy guide")
After the tribunal they amended the statement to change parts 2 and 3 adding the extra support he is now to get, but part 4 stayed the same as tribunal said the costs was too much and that it would be best for him to stay where he was for final year of primary. unfortunately we have had to move area and therefore a new school has been named on the statement. County are saying this does not generate a right of appeal as it is still mainstream primary?
I'd have thought if they're changing the name of the school you must be entitled to appeal, because even if you agreed that mainstream was OK you may still have good reason not to want a particular mainstream school. You do also now have the argument that the issue of not moving him in his last year doesn't apply as he has to move anyway. I suppose the ideal thing would be if you could find a school which will take him in year 6 and carry on into secondary so that he doesn't have to move again.
As Starlight said, it's not up to the LA to give you a right of appeal, but you do have to produce with your tribunal appeal the formal letter from the LA serving the statement and saying that you have that right. If they're refusing to produce that letter, I'm not sure how the tribunal would deal with it but it sounds to me as if it might be worth putting the appeal in anyway, explaining the position and producing the LA's letters (including emails) and see if they'll accept it. If you emphasise the fact that ds hasn't been able to go into school since the previous decision that might help.
I would guess that the tribunal didn't order that particular school, but mainstream. The LA would be in breech of tribunal order as much as yourselves if his statement doesn't say mainstream. You'd need to look in full detail at the tribunal order.
"They amended the statement to change parts 2 and 3 adding the extra support he is now to get, but part 4 stayed the same" as "it would be best for him to stay where he was"
The key is the wording of Part 4. Your comments suggest it names a school.
If the school has changed, they must amend the statement to reflect this. Any amendment gives rise to a right to appeal. The Tribunal decided very recently that he should not go to an ISS so this might be a tall order.
The situation has changed since the tribunal hearing. Ds is now refusing to go to school at all, I have had to give up work because of this, and for that reason we have had to move. LA wont give us a letter to give us right to appeal, but I don't know what else to do. He can just not go to school, and we have even offered to pay some of the costs to make the price of both schools the same. Tribunal only said they couldn't justify the cost. They agreed with us that mainstream didn't have expertise to meet his needs.
Hang on, they said his needs couldn't be met in the mainstream but they ordered a mainstream placement because it was cheaper? If that's really what they said it's unlawful.
What they said was that the school he was at didn't have the expertise to meet his needs, but with the extra provision in part 3 ie 1 hour a week support from specialist dyslexia teacher teacher, then hopefully they would be able to. This is even after, both our EP and county,'s Ep said they didn't think it would be enough!!!
Im not able to find the case law but think there was a case where a family whose statement was changed but not given the right of appeal were appeal to judicially review the lea. I can't remember all the details but please do get in touch if you need to know more about that case. I will try to find it if you need it. If im not mistaken I believe I may have read it on Douglas silas website.
Hmm I am not sure.
I think you need to check with IPSEA as I think the rules are different if you try and change provision within 12 months of a tribunal decision. I am guessing the name change did not follow a formal review or reassessment of the statement and just a change of address. The arguments you are making about this school are presumably the same you made about the last mainstream school and you lost. I don't think they have to agree to change the placement at all as its less than 12 months since the tribunal ordered it and will probably say they are changing it out of good will as you have moved not because needs have changed since tribunal.
You need to look at rules in SENCOP about change of school and schedule 27 I think of Ed Act 1996
If you think about it if you had won indi school and LA then said well we lost on basis of X mainstream school but we have now found a place at Y mainstream school so we want to rerun the tribunal you would have been hacked off. If people could undermine tribunal decisions just by moving house in the same LA to be near a mainstream school which will say something different to the last school it would cause chaos.
I think you probably need to request a formal urgent review of parts 2,3 and 4 based on new circumstances (school refusal) which the tribunal did not consider. Or formally request a reassessment of statement. But that process will probably take you to March and next AR anyway (although at least a reassessment has a statutory timeframe whereas AR's can drift for months).
You may be able to JR decision to name a school which says it can't meet need even without all these extra resources, but that would be risky given tribunal decision said a mainstream school could meet need.
Do you have any medical support etc for school refusal to force a reassessment?
So I think you need to be clear whether this change has followed a review or reassessment of the statement due to school refusal, if not, if its just a change of school based on you moving house then I don't think the LA have to agree to the change the statement at all unless it is over 12 months from tribunal and even then you only have a right to ask for another mainstream school to be named (unless you ask for the statement to be amended for indi school at AR and that is refused in which case you get a new right of appeal)
Just a quick question... Has he moved from one mainstream school to another in the same LEA? - i think that is what you've said.
If so, and the LEA have changed the name only then that might be different from having changed the name AND the content in Part 2 & Part 3 when moving to the new school. What i'm trying to work out is if only the name of the school has changed or more, i.e. needs (part 2) and provision (part 3).
I think if the school are saying they can't meet needs, as AgnesDiPesto has pointed out, then having that in writing would be helpful. Clearly sending a child to a school which can not meet needs makes little sense. In this respect, if the provision was reduced when he moved schools such that it prevents the new school from meeting needs then you might be able to challenge the LEA... It might not have been unreasonable for the LEA to name another school (of same type, i.e. mainstream for mainstream) if they did NOT dillute the provision. However, if they named a new school (like for like, i.e. mainstream for mainstream) but reduced the provision, and the new school agree that they can't meet needs with the reduced provision then that would seem uneaonable.
The case i was thinking about which i suspect is NOT relevant is http://www.specialeducationalneeds.co.uk/uploads/1/1/4/6/11463509/r_on_the_application_of_m_v_east_sussex_county_council_2009.pdf
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