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Lougle, Legal people - I need your help!

(34 Posts)
StarlightMcKenzie Wed 14-Sep-11 17:50:54

A friend of mine recently won her tribunal.

It was a ridiculous case with a notorious judge who made a daft decision.

The parents won, but not on the merits of the placement they wanted, just simply on the costs.

From this, I can conclude, that provided what you want for your child is cheaper than they LA provision, it doesn't have to meet his needs hmm

Anyway, - the thing that I wanted to know was, - can this now be classed as case law.

I mean, can I just ask for something that is cheaper, without having to prove that it is better? (obviously I would still try to, but it makes my case stronger if I don't').

I haven't seen my friends 'decision' so I don't know what it says exactly, but wondered if it was worth asking her for.

Many TIA

PipinJo Wed 14-Sep-11 18:40:39

Message withdrawn at poster's request.

StarlightMcKenzie Wed 14-Sep-11 18:51:03

No, it isn't the same situation.

It is cheaper and it is ABA and yes we are going to tribunal, - at least we are going down the tribunal route.

We 'may' not get there, for a variety of reasons that have nothing to do with the LEA seeing sense.

Thanks for replying. I just wondered if the decision is written that the provision was awarded for cost reason rather than merit, then it would stop the LA from being able to pick holes in our programme.

Agnesdipesto Wed 14-Sep-11 19:07:47

That can't be the decision. To win on costs both placements have to be able need - if both can ie there are two valid options on the table and the parent's is cheaper then you get your choice on cost under parent preference grounds (in Ed Act). But the cheaper option must still meet need.

So yes Star if you can prove your option will meet need and the tribunal decided the LA option also met need then you can still win if yours is cheaper under parental preference. In fact you can even win on parental pref if yours is slightly more expensive but offering a substantially better programme / lead to savings elsewhere eg social care.

But a Tribunal can never order a provision that will not meet need (I mean they do but they can't say thats what they are doing!!)

So I suspect what the decision meant was that both placements can meet need but the parent's can have their choice because it is cheaper, not that the parent's choice had less merit.

PipinJo Wed 14-Sep-11 19:10:42

Message withdrawn at poster's request.

StarlightMcKenzie Wed 14-Sep-11 19:10:45

As I said. I haven't seen the decision, but the parents are convinced this is what has happened. They will not challenge it for obvious reasons.

Having seen my own decision and the state of the working document that came out of our tribunal I can believe it happened, but don't KNOW that it did iyswim.

Agnesdipesto Wed 14-Sep-11 19:14:33

I suspect they didn't want to say to the LA yours had less merit, so they made a point of saying its not about merit its about cost. It sounds badly written it should have said they won on parental preference. Maybe they didn't want to comment on merit as it would set a precedent for the LA if they said one was better than the other.

I will try and dig out the parental pref case / costs argument case for you.

PipinJo Wed 14-Sep-11 19:16:50

Message withdrawn at poster's request.

StarlightMcKenzie Wed 14-Sep-11 19:29:35

Pipin, they care whether their budget is spent on their own salaries or not. They still believe in the nil costs argument although they are not legal. They have to save money. If it goes on outside agencies they will have to take redundancy.

StarlightMcKenzie Wed 14-Sep-11 19:31:51

They will therefore (in my case) use tax payers money to defend the right to spend more money on themselves than on outside people.

Btw, your talking to Agnes, not Lougle smile

PipinJo Wed 14-Sep-11 20:07:12

Message withdrawn at poster's request.

StarlightMcKenzie Wed 14-Sep-11 20:25:10

Pipin, I do have the evidence already, and I know that what I say on here sometimes gets back to them, which is sadly why I can't ask for some of the support I need.

Most of what I write I am happy for them to know. In fact I flipping TELL them myself but even after taking them to tribunal they still don't believe what I say I will see through.

PipinJo Wed 14-Sep-11 20:34:00

Message withdrawn at poster's request.

Lougle Wed 14-Sep-11 23:16:59

Just seen this.

My initial thought is that you are looking at this on a micro level, and the LA are looking on a macro level.

So, your provision plan may include ABA and be cheaper than the LA plan.

BUT the next 10 parents who come along, might have plans that include ABA and are marginally more expensive than the LA plan. They get through.

THEN the next 10 after that, have plans that include ABA, are quite a lot more than the LA plan, but demonstrate that the child will get enhanced progress as a result. They get through partly on the results, but also partly on the precedent of ABA programmes being approved.

That first ABA win, will be like a hole in a dam. In fact, there may be already, a hole, which the LA are trying to plug.

The answer to your original answer is 'I don't know'. I suspect that you could use it as 'case law' even if it wasn't in fact 'case law'.

Something that springs to mind is the ruling on transport when a school is named in part 4 of the statement. The judgement that a parental preference becomes the 'only suitable provision' once named on part 4, has been used by parents now to insist on transport for their child even when it isn't the closest available school.

StarlightMcKenzie Thu 15-Sep-11 13:45:33

'My initial thought is that you are looking at this on a micro level, and the LA are looking on a macro level.'

Yes, Lougle. You're right. They need to set an example of us. They need to overlook ds' needs because of the message it will send if they don't.

But what we are doing can be done, as cheaply as we are doing it, elsewhere, and this is also a problem, as it makes them redundant. Although they could always train themselves, or at least involve themselves in the programmes that DO win to gain expertise they could use to fend off future claims, - but hey, I'm not in a Management position in the Authority.

The case does rest on us being able to prove that our provision is at least as good as theirs, which means their only argument is that it isn't. We'll get the whole dependency, generalisation, social argument that the tribunal doesn't understand and it will still be hard to win.

ABA as a part of school as opposed to an alternative to school will also be hard to win as the school is against this.

<sigh.

Nigel1 Thu 15-Sep-11 17:18:09

The original question asked - is this now case law.
Answer: No. Tribunal decisions are not precident forming. The Tribunal is too junior and the cases are very fact dependant - what might me right in this case is wrong for another. Precidents would not be formed until you got to the Upper Tribunal or the Court of Appeal.

StarlightMcKenzie Thu 15-Sep-11 17:25:00

Thank you Nigel1. That is really helpful.

PipinJo Thu 15-Sep-11 19:50:01

Message withdrawn at poster's request.

StarlightMcKenzie Thu 15-Sep-11 19:58:27

'esp if you find out time on ABA/costings and present it as late evidence (if refused talk about it on day).'

What do you mean pipin?

I do know another family that has theirs funded btw.

Agnesdipesto Thu 15-Sep-11 20:17:31

Is caselaw on parental pref
This case quotes some of the cases. Its a recent Upper Tribunal decision but concerned with where the parents provision cost more but was still considered reasonable expenditure.
this also quotes the older cases which looked at parent pref

On ABA our bonkers LA spent 18 months telling everyone ABA was the devils work...only just before tribunal to say that in fact their staff were all experts in ABA (one had gone on a 1 day course we found out at tribunal) and there was no need for us to go to an outside provider because they could do it all themselves. They even offered a meeting to explain how they could deliver the discrete trial teaching their own EP recommended. We refused the meeting for the cynical time wasting it was, but I do regret not getting them to explain their DTT / ABA methods. That would have been very funny.

StarlightMcKenzie Thu 15-Sep-11 20:24:28

Ask for it now! grin I'll come. How about Friday the 30th Sept?

StarlightMcKenzie Thu 15-Sep-11 20:25:12

Yes, our LA say that they know enough about ABA to deliver it.

StarlightMcKenzie Thu 15-Sep-11 20:48:00

but that it is bad for ds.

StarlightMcKenzie Thu 15-Sep-11 21:14:17

Just read those links. Thanks Agnes. The first is tough to read but good at signposting.

PipinJo Thu 15-Sep-11 22:37:34

Message withdrawn at poster's request.

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