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ABA in Statement but not all invoices being paid - when to do FOI request?

(26 Posts)
BrucieTheShark Fri 03-Oct-14 10:57:20

Hello everyone,

First I must apologise for being such an infrequent poster but still coming back to ask for help from time to time. I do hope that as the years pass, things might one day settle down and then I can 'give back'.

Our DS has ABA in the Statement - it even says 30 hours per week (term time at least). Woohoo you might think. But the LA are refusing to pay all the invoices. They have plucked a figure for a 'cap' out of the sky and won't pay a penny more.

Fab that we're getting money, but it would be quite nice if they obeyed the law, so I am going through their complaints process before being able to go to the LGO (mid October).

At some stage I want to do a FOI request to get everything they have regarding DS. I am itching to fill in the form now. Would it be better to do it now so that any info I get can inform the LGO? Or should I leave it even later?

Appreciate any thoughts at all.

AgnesDiPesto Fri 03-Oct-14 11:06:59

I would apply FOI now but not delay going to LGO. Do it alongside.

BrucieTheShark Fri 03-Oct-14 11:08:04

Thanks Agnes. I really wanted to hear what you thought in particular.

Here goes!

billiejeanbob Fri 03-Oct-14 11:10:17

is their capped figure written in the statement?
if not can you threaten them with judicial review proceedings?

BrucieTheShark Fri 03-Oct-14 12:22:18

No the cap is not mentioned in the statement. No funding is mentioned, and rightly so!

I have JR in my sights if no joy with LGO, but I haven't mentioned JR to them. Do you think it would scare them in any way? Mention of LGO doesn't seem to have done.

theDudesmummy Fri 03-Oct-14 12:45:34

I would issue them with an invoice for the shortfall, give them a window in which they have to pay and if they do not sue them through Moneyclaim Online.

BrucieTheShark Fri 03-Oct-14 14:10:25

Now that's a new one on me! An interesting strategy and very tempting.

I did send them the unpaid invoices in a great big bundle at the time, so they do have them at least.

PolterGoose Fri 03-Oct-14 14:25:00

Message withdrawn at poster's request.

BrucieTheShark Fri 03-Oct-14 14:27:51

Oh shite. Thanks Poltergoose, didn't know that.

BrucieTheShark Fri 03-Oct-14 14:32:18

Hmm I might be ok. Both FOI and DPA request pages on the LA website take me to the same 'request for information' form I have already done.

Fingers crossed. At least I know what its proper name is now.

manishkmehta Fri 03-Oct-14 20:33:02

Dear BrucieTheShark,

I think the DPA and the FOI, and even the LGO might not be the best solution. Whilst it might be worth trying those,... the more appropriate remdy might be JR...

If you have a statement that CLEARLY stipulates ABA, and if they have hired the ABA tutors, then they must pay for them... Failure to do so could mean they are in breach of the education act 1996 S 324 (5) (a) (i)

If they only pay part of the fees, and then require you to pay the other part, you are strictly speaking making (paying) for the provsion.

A Statement cannot lawfully specify (in Part 3 or 4) provision which is to be made by parents: A –v- Cambridgeshire [2002] EWHC 2391,
[2003] ELR 464.

If you stopped part paying for the provision, would it cease? If so, you could stop paying and once the provision ceased you could then JR the LEA... That is the nuclear approach...

You'll need to call MG on Monday... but they are best placed to help with an issue like this as they have a legal aid contract... or you could try John Ford Solitiors who might also be able to JR.

Good luck,


PS - all of the above depends on what your statement says... but in short parents should not have to top up payments...

BrucieTheShark Fri 03-Oct-14 20:58:43

Hi Manish,

What is MG?

We pay the tutors and then claim the money back from the LA. So this complicates things a little as provision HAS been arranged. Our consultant invoices them directly for workshops though.

As you say, I could (and have threatened in my complaint to them) stop paying when the 'cap' is reached. But they seem unfazed and head honcho replies something along the lines of how he regrets that we feel ABA should cease at that point <fuckhead>.

I might be able to keep him out of school and pretend he is receiving NOTHING while still secretly having ABA tutors at home. But then this might muddy the waters with the school and evidence of how well things are going at his annual review. We'll see when we get to that point.

What makes you think the LGO won't amount to much?

I feel like it's the long game (I mean it's until he's 25 now after all!) so want to go through every stage and try every avenue.

I am like the terminator. I will not stop.

BrucieTheShark Fri 03-Oct-14 21:00:02

Btw has anyone ever investigated the 'legal cover' part of house insurance for this sort of legal expense?

Long shot, but it just popped into my head the other month.

manishkmehta Fri 03-Oct-14 22:02:47

Hi BrucieTheShark,

MG =

They are probably the best firm in this field... However, there are others who can help...

I don't fully recall... but i think John Ford used to have an Education Legal Aid Contract... They may no longer have it..... but i think they have a "Public Law Contract..." which might allow them to JR on public law matter, e.g.. Education...

I must stress,... i don't know how you got your ABA,... and i don't know what your part 3 says... but if you do look at JR... either of the above firms might be able to do a "fixed fee" deal... There is small amount payable up front to do the intial fact finding, but this is usually capped...

I should have said... If you are able to JR... Then it would be in your childs name... In which case the child would get the legal aid funded... i.e. you wouldn't have to pay...

If you want anymore information then please do let me know... However, this is the kind of thing you can call MG on monday morning, or JF... Both firms should be able to assist...

Good Luck,


BrucieTheShark Sat 04-Oct-14 09:10:21

Thank you. I had forgotten the legal aid thing.

Icimoi Sat 04-Oct-14 11:16:45

John Ford don't have a legal aid contract any more. You do need to go for judicial review as the first option - it's way quicker than the ombudsman

manishkmehta Mon 06-Oct-14 00:46:09

I think you will find that they do have a legal aid contract, albeit it for community care, and public law... It's my understanding that as education "can" fall under public law... they "may" still be able to JR a failure to comply with the education act 1996 S 324 (5) (a) (i)

..........have legal aid franchises in community care and public law. As a result of the LSC (now called the Legal Aid Agency) tender and the decision that there should be only three legal aid providers to cover the whole of England and Wales from April 2013, we were very disappointed to learn that we had not secured a renewed franchise in education law - given that education law is our main specialism and we are one of the leading firms in the country in this field. This particularly concerned us because we are unshakeably committed to helping people, particularly those who are vulnerable or who have been treated unfairly, many of whom cannot afford to pay us privately.

However, we are still able to apply for public funding certificates in the names of children who are financially eligible for legal aid, hence we will need to charge privately in the majority of cases for our initial advice and our application for legal aid on your behalf. Where you need to consider going to Court, we will do our utmost to secure public funding for you if you are financially eligible and you have a reasonable case. The same applies to students in higher or further education.

As we have a community care franchise, we can still provide free initial advice and assistance if you are financially eligible and need help with any aspect of community care law. The same is the case with public law.

BrucieTheShark Mon 06-Oct-14 09:59:59

Quick update - and thanks all for your help.

Have spoken to a guy at Maxwell Gillott. He said we'd have to pay for a pre-action letter (circa £360 as it's £150 per hr plus VAT).

If response unfavourable, then we could look at legal aid. He said legal aid can be applied for when it can be reasonably argued that there will need to be quite a bit of investigative work, i.e. judicial review.

So I'm going to see what the LGO says next week re timescales. If it's going to drag on for ever, I'll pay for the solicitor's letter. But if I might be able to gauge the LA's reaction to the LGO within the next 6 weeks or so, I might hold off until then.

BrucieTheShark Wed 21-Jan-15 14:59:24

Just wanted to update this.

After going through LA complaints procedure, at the very final hurdle, somebody high up obviously read the SENCOP. They asked their own statementing dept for justification of the cap figure and for proof that the ABA could be provided for this amount.

Unsurprisingly they were unable to provide it so this top person has instructed them to pay the outstanding balance and to cover invoices for the entirety of this year too.

I did stay in touch with the LGO but they were happy the complaint was being processed so would not start our case until a decision was reached or it was clear they were not progressing it. We did the DPA subject access request, maybe that focused their mind, though it didn't throw up anything.

I'm now very glad I didn't start a JR!

Am very aware we've been lucky, but wanted to pass on that sometimes you do get somewhere.

Now onto the next battle at the annual review in March!!

Thanks for everyone's help.

AgnesDiPesto Wed 21-Jan-15 16:20:03

Well done, good to hear you got the right outcome. Not that you should have to have gone through all of this.

senvet Wed 21-Jan-15 17:22:52

Great news.
The LAs keep trying to say it is for the school, and the school saying it is for the LA.

The law is clear. The buck stops with the LA. They can have arguments with the school, but that should be kept between them and the school.

There might well have been a contract somewhere that could have been enforced via small claims/county court.

Ideally for you, the ABA tutors would get paid by the LA direct, but assuming that they are two clever to be left waiting for the LA to pay, then see if the LA will sign at least a letter that sets out the position.

If it happens again a pro bono legal advice centre might help you to write straight to the LAs legal dept so that you don't have to go round the Special Needs department.

BrucieTheShark Thu 22-Jan-15 09:32:00

Thanks, appreciate all the advice.

Unfortunately this success will be short-lived as they seem to think the ABA is a 2 year early intensive programme which will come to an end this summer.

Fortunately they are not sending anyone of any description to observe DS so they will have precisely zero evidence to support any change. We will have a shed load. They are pretty clueless. I just hope they will realise this and we won't have to appeal a revised statement etc etc.

senvet Thu 22-Jan-15 10:24:10

If you can catch them applying a policy then they will have failed in their obligation to treat each child as an individual.

Try an FOI/FOI-equivalent to asking 'what is your policy on ABA for ASD children?'

If a friend does it for you, it won't have your name plastered over it.

If you can get a document which shows they a) have a policy and b) have applied it to dc with next to no reference to his individual needs, you will have won a battle in a longer war.

BrucieTheShark Thu 22-Jan-15 17:26:24

Thank you - also useful. I know other families in the area and think they have applied the 2 year thing to them too. That sounds like a policy to me. Will check it out.

Icimoi Thu 22-Jan-15 18:01:10

If you need to go for JR again, try SOS SEN. I think they have an arrangement whereby the initial paperwork is much cheaper. I'm glad this is resolved, but if you'd sent a pre-action letter early in October it could have been resolved by November.

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