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tribunal - anyone ever been given advice from the LA solicitor????

(22 Posts)
bjkmummy Wed 09-Jan-13 23:12:02

this is the bizarre position i have found myself in today.

the LA have agreed no amendments to the working doucment. We have asked for both their and our OT report to go in. They have struck it all out and tried to put parts in part 5.

Their solicitor did the working document wrong and has yet to return corectly done. the LA have started to consult schools even though they said they wouldnt until working document agreed.

Their NHS OT report recommends he has therapy on suspended ceiling equipment so we put this in. my proposed school a bit nervous as they have no such equipment so have responded back to the LA saying they may not be able to carry out all parts of the proposed working document which I had sent to them - LA of course when they counsulted the schools sent the last rubbish statement which has nothing in.

we have in the working document lifted direct parts from both OT reports. LA want me to accept one or the other reports - i wants part of both

LA solicitor has emailed me today and said that as i wasnt legal represented she felt she needed to advice me that i was making the statement too restrictive and schools in the consultation process would struggle to meet his needs. she wants me to add the reports as an addendum and basically just make reference to the report in the statement ie see page no of attached report or something like that.

have sent them our ed psych and SALT report. final date for submissions is next weds - she wants to know by friday at 5pm what parts of teh ed psych and SALt report i want to go in and again i am to addendum the reports - im totally confused - im of the view that each and every need needs to go, not my fault they are now struggling to find a school - should havejust named mine previously, they shouldnthave got their own NHS OT report for'balance' as its that report which is causing the problems not mine

but i just find it out that she felt that she should be giving me advice - she is apparently goingt o copy in the tribunal the email as i am being to 'prescriptive' in my working document

does she not realise i have the sen mumsnet team helping me???? does anyone else find it just a bit odd or am i being way too cynical and can she also dictate that ive got 48 hours to tell her what i want going in the report? im too bust doing the case statement - i think she wants to know so she can address it in their case statement. maybe the LA should actually try and agree something first

StarlightMcKenzie Wed 09-Jan-13 23:23:00


Far too late for me to not know whether I am imagining this thread but gut instinct is definitely hmm,

I'll try and read again in the morning.

StarlightMcKenzie Wed 09-Jan-13 23:27:35

Tired brain says you appear to be spot on and know exactly how to play it. Tell her buzz off re working document until final evidence date passed - nicely.

bjkmummy Wed 09-Jan-13 23:38:23

she also felt the need to phone me and leave me a message on my mobile phone if i wanted to 'chat' - she didnt leave her number though. i just want the working document back that theyve had for weeks now and for it to be done right. the email where she said as well she was copying in the tribunal didnt look like she had copied them in so not sure if she has or if that is some kind of veiled threat to make me worry which clearly im not and would love to hear the tribunal view on being given 48 hours to respond when they have had the working document for 5 weeks. needless to say my response tomorrow will be copied in to send. had send rule another order in my favour today. LA refused to release some information despite 2 requests and then tried to use data protection so i applied for an order and today the LA backed down and release the info smile

mariammama Wed 09-Jan-13 23:44:16

Probably parroting exactly what her boss told her. Which was all lies designed to stop her realising her job harms kids. Ignore it while prompting her to concentrate on the existing outstanding tasks. That's my best best strategy for dealing with irrelevant echolalia, anyway wink.

inappropriatelyemployed Thu 10-Jan-13 08:01:51

If she is a solicitor as opposed to an education officer, she should be advising you to seek independent legal advice and not trying to advise you herself where there is a clear conflict of interest.

The case law is quite clear on the need to quantify and specify. I can send you references if you PM me.

I would thank her for her advice but point out that she should not be trying to both the appellant and respondent as there is a clear conflict of duties and should have been advising that you seek independent advice. Tell her that you are following the case law, quote it and ask for them to explain why the case law doesn't apply in your case.

zzzzz Thu 10-Jan-13 08:45:57

grin innapropriately spot on what I was going to say except my "training" comes entirely from day time TV bf.

Hold your nerve, you are only asking for what is needed.

willowthecat Thu 10-Jan-13 09:53:25

Lawyers are regulated by The Law Society of England (or Scotland) and she should not be acting in this way. Point out to her that she is acting against their Code of Practice. Make a note of this for the Tribunal itself - that the LEA solicitor approached you in this way.

bjkmummy Thu 10-Jan-13 10:29:01

well she helpfully gave me the advice and did say if i didnt agree i should seek legal advice.

the solicitor works for a neighbouring LA - my LA buys in their legal services from them. she made a request for the tribunal to allow her to sit in as she has never been to a tribunal before so clearly she has no experience of how a tribunal works in reality. she says that she will copy this email into the tribunal but i dont think she has - i have a suspicion a different version will be copied in but when i respond i will include her email so the tribunal can read it.

i have a NAS person helping me and she has drafted a response - the LA solicitor has actually given me very bad advice and is in total opposite of what the code of practice states. The problem is that as the LA have refused at every turn to do anything they have now ended up in a deadend and the realisation now that my school that i want an asd specialist school is saying based on the reports they dont think they can meet his needs. the LA position has always been that the current statement reflects his needs so to have a special school n ow thinking of saying no will not look good on them. he is in school part time still and has been since june. la have done nothing at all

they tried to get the outreach woman yesterday to see him with an hours notice but i blocked it saying no - i need more notice - he is now at school and it is not fair for her to just turn up. clearly the LA had a meeting yesterday and i think that is why - we have been awaiting her to see him for ages. i also got a tribunal order back yetserday saying the outreach person is not a qualified teacher despite the LA refusing to tell me hence the order. in a meeting with the LA they hissed at me that she was a qualified teacher and its in the minutes so they lied. the outreach woman is horrific - long story but she finally did a list of 3 pages of strategies to help him so i thought great until i got the school file and a completely different version of the same report was on file but the school version was one page long with about 2 strategies on so they are up to no good. needless to say both versions of the report will be submitted to the tribunal smile

bjkmummy Thu 10-Jan-13 10:33:47

inappropriate - if you could send me the case law that would be fab - i still need the blinking working doucment back - 5 weeks theyve had it now. and im also baffled over her give me until tomorrow to say what i want out of my salt and ed psych reports to go - she can go and poke off - i tell her when i return the working document - they cannot put these deadlines on me. ive been emailing her for 3 weeks asking for the workimg doucment and she has had my reports before xmas although i bet that have been sat on someones desk and not been look at until yesterday - i guess they are panicking as the final submission is next week. all i am concerned with is my case not theres although i do have a nioghtmare that my school i have asked for is wobbling now that the reports have come in so im now off to phone an independent school that has a space available so may have to change my school yikes! thankfully it is a school the LA use lots but also expensive but hey ho not my fault! if they had agreed to move him in march then they would have saved all of this and my son wouldnt have been out of school for so long.

inappropriatelyemployed Thu 10-Jan-13 10:39:18

Firstly, she should not be saying seek independent advice IF you disagree. She has a duty not to seek to advise you but, if she wants to make comment, she should highlight the area where she feels you need advice and tell you to seek independent advice because she cannot advise you herself.

Also, look at the Tribunal rules of procedure. The LA is under a duty to collaborate and work on the working document with you. They could really do with a stern lawyer's letter reminding them of this.

inappropriatelyemployed Thu 10-Jan-13 11:18:43

Law on quantification/specification

Provision should be quantified and set out unambiguously in accordance with the Code of Practice Paras 8.36 and 8.37 and the current regulations namely The Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 No.3455 Schedule 2 Part 3 and R v Clarke & Somerset County Council 1998 ELR 129.

In L v Somerset County Council 1998 ELR 129, Laws J having considered the position in relation to Part 3 of the Statement of Special Educational Needs at 137B commented:

“The real question as it seems to me, in relation to any particular Statement is whether it is so specific and clear as to leave no room for doubt as to what has been decided is necessary in the individual case.”

In R (on the application of IPSEA Ltd) v The Secretary of State for Education and Skills [2003] ELR 393 the following comment was made:

“Any flexibility built into the Statement must be there to meet the needs of the child and not the needs of the system…It remains the case that vague Statements, which do not specify the provision appropriate to the identified Special Educational Needs of the child, will not comply with the law.”

It should be clear what sorts of programmes are intended, and the level of skill/expertise required to deliver them (see R v Wandsworth ex parte M [1998] ELR 424). The intended frequency of the programmes or the number of hours classroom support intended should also be spelt out. It is clear from R v the Secretary of State for Education ex parte E 1992 1 FLR 377 now reflected in Para 8.34b of the Code of Practice that what the LEA, school and local NHS Trust is going to provide should be clearly set out, irrespective of the provider. Further paragraph 8.37 of the Code of Practice makes clear that provision should be quantified in terms of hours.

In E v Flintshire [2002] EWCH 388 (Admin) [2002] ELR 378, the requirement to specify is:

“…not a bureaucratic purpose… by that provision, local authorities… and tribunals…are required to give full and adequate specific consideration to the needs of the child… the requirement for specifity outlaws… a general statement… in such broad terms that it could lead to specific needs being ignored or inadequately focused upon…the second purpose is that once made in terms which are specific the purpose of the provision can be furthered and effected by enforceability…”.

bjkmummy Thu 10-Jan-13 11:27:30

thank you - right need to sit down now and write my response - NAS have don a response plus i have other bits and pieces to add in as well. i just love how their concern now seem to be for me and that the LA are worried about me and how if i get the statement too detailed will be difficult for them to find a placement for my son. Maybe they should have done the statement correctly in the first place! plus they had a second chance in the summer but no, we didnt have any evidence whatsoever. smile and yet they now feel he needs could be too much for most schools including special school.

also waiting for a couple of phone calls so think thats why i am struggling to focus - mainly if my school are going to withdraw his place with 4 weeks to the tribunal to go

inappropriatelyemployed Thu 10-Jan-13 11:46:12

If you want me to look at the letter, just PM me.

bjkmummy Thu 10-Jan-13 12:07:34

will do - will go and copy it now - good news is that my school have phoned and they can meet his needs plus they have now employed an OT on site so the school placement will be blinking brilliant for him - just need the LA to concede now and i think from teh letter they are hinting that if i show my hand now they will look at it and then maybe just maybe concede but i could be on cloud cuckoo land and i dont trust them an inch really

Veritate Thu 10-Jan-13 13:48:27

bjk - are you opposing that request for the solicitor to sit in on the tribunal hearing? I don't see why you should give her the training, and you can say you would find it intimidating to have too many lawyers lined up on the other side.

bjkmummy Thu 10-Jan-13 14:18:24

i did oppose it on the basis we were unrepresented and that it would be more appropriate if she sat in on a tribunal where both parties represented and also that i would find it incredibly stressful as they also have a lawyer doing the actual hearing itself. i did indeed think about the fact that i would be party to her training to screw over some other parents in the future.

the tribunal ruled in my favour and the order even quoted parts that i had written ie that she should attend a tribunal where both parties are represented. i have applied for 3 orders so far and they have ruled in my favour on all 3 orders

StarlightMcKenzie Thu 10-Jan-13 14:57:42

You're doing brilliantly OP. Just so you know.

bialystockandbloom Thu 10-Jan-13 15:14:11

Just to chip in a reminder re schools - Part 3 of the statement should not be worded according to what a specified school can or cannot offer. The provision in a statement (based on his needs) should come first. Then you/LA find a school which can meet his needs. So don't let them use that as a red herring - ie don't let them say "you can't put that in part 3 as x school can't provide it" - that's illegal, as of course a statement is a satement of his needs, not what a school will provide.

I'm sure you know that already, just wanted to remind you just in case they tried to pull the wool over your eyes on that.

StarlightMcKenzie Thu 10-Jan-13 15:25:46

Absolutely. It is statement of educational NEEDS, not a statement of the Educational Provision that they can offer.

bjkmummy Thu 10-Jan-13 16:36:57

they wouldnt accept my ot report cos it was good so got their own which showed our son had even more needs so it kinda backfired on them. their OT report talks about the need for suspended equipment - my school which is an aspergers specialist school are concerned if that remains they cannot fulfill the statement as they dont have it and it would cost so much to put in. they do have a qualified OT on site who is qualified in sensory intregration therapy - im happy for the suspended swing stuff to come out if it means they cant offer him a place as everything else is fine and he will still get therapy. my OT says its not essential and she is surprised an NHS OT has put it in as it means only an independent school likely to have it. my follow up OT report will address this point. so because of this the LA try to say the whole statement is too specific which is rubbish. they have so far struck out every single amendment! they now seem to want me to put in my OT report only and are asking if this is what i want - ive been asking them to accept my report since May 2012! their solicitor is still taking instructions re the OT for gods sake - this has been going on for months but then in the next breath deny they are using any delaying tactics. regardless what happens its the LGO after this - hes been part time now for 8 months and next week they will finally give him an hour of 1:1 at school with autism outreach with 3 weeks to go to tribuanl - how very kind of them

Liliuk Fri 11-Jan-13 00:34:22

Could you perhaps leave it as a need and negotiotiate with your LA some session in a specialist OT clinic with swings, depending on how often she recommends. Maybe you can ask the OT (NHS) to put use of scooter boards instead which are likely to be in the school (which also stimulate the vestibular function)

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