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can someone explain what 'without prejudice' means in plain english?

(24 Posts)
bjkmummy Sat 25-Oct-14 16:50:38

letter from the LA says-

The LA is seeking without prejudice to your appeal to sendist the advice of NHS colleagues as a second opinion on the reports you have served'

what happens if the NHS disagree with my reports? I don't understand why they are using 'without prejudice'

KeepOnKeepingOn1 Sat 25-Oct-14 17:57:44

It basically means without detriment to any existing right or claim. So even though they recognise your right to appeal they do not necessarily agree (or disagree) with the content of the appeal but they don't know without collecting further evidence. So even though otherwise (in the normal course of events) she might not have been seen by NHS staff, she is, not necessarily because of 'need' but because you have provided evidence that she needs salt or ot provision and so they are seeking evidence against you (and DD) to fight tribunal (ie the second opinion).

bjkmummy Sat 25-Oct-14 18:32:59

Im still struggling to understand.mwithout prejudice - isnt that usually used in legal cases ie criminal cases. So they are disputing ms report I guess. The referral makes no mention of dd having asd. So if the nhs report agrees with ms they can chose to not dieclose that or if it doesnt agree then they will use it agajnst us so win win for the LA

uggerthebugger Sat 25-Oct-14 21:16:58

There might be another way to read it - the grammar's mangled enough that it's hard to tell, and it wouldn't surprise me if your LA just threw 'without prejudice' in the mix to sound officious - but....

The LA wants to get a second opinion on your reports, but it reserves the right to not submit the findings of this second opinion as evidence against your appeal. For example, if the second opinion turned out to basically corroborate your reports, the LA wouldn't be bound to submit this opinion as evidence, because the LA had sought the evidence without prejudice to your appeal.

keep's version sounds a bit more plausible though...

uggerthebugger Sat 25-Oct-14 21:23:34

...and fuck knows if that's a legally tenable position. I mean, they go to the bother of getting a second opinion from hard-pressed, over-stretched NHS professionals, they don't submit it, and then... what?

As it's about your DD, can they legally deny you access to the NHS second opinion? And if they don't submit the opinion as evidence after announcing that they were conducting it, exactly what conclusions can a panel come to?

bjkmummy Sat 25-Oct-14 21:39:47

I think i will say okay to the assessment but I want it to be disclosed in full to us - they cant refuse to disclose it to us surely? And I mau askmfor all drafts of it to be disclosed as well. If they are going to refuse to disclosemit why should I agree to it?

tempe48 Sat 25-Oct-14 22:35:19

What can happen is that the NHS speech therapist starts the assessment on dc, and realises that its starting to show that you are right - so they throw the test papers in the bin!

If however, the speech therapist does carry out an assessment or observation, then you could ask the Tribunal for a direction to disclose the report to you. (You could do a data protection request, but asking the Tribunal is probably quicker)

bjkmummy Sat 25-Oct-14 22:46:32

yikes sorry for my poor spelling above as I was on my ipad!!! I think the NHS SALT will take one look at MS report and tell the LA to poke off - DK when I saw her and told her my LA were planning this said that no way could a NHS SALT produce such a detailed and well thought out report as MS and that it was an excellent report and all the testing covered everything as it was only done in july so there is nowhere for the LA to go so they are getting desperate.

I am going to write back and say that I am upset by their intentions to try and prevent evidence being placed before the tribunal - if they want the assessment then fine, but they must stand by the report whatever it says as it is not fair on my dd to be forced into a 3rd salt assessment and then for them to decide nah we are not going to use it. im not going to let them pick and choose at my dd expense

AgnesDiPesto Sat 25-Oct-14 22:49:25

It means you can't disclose the existence of this evidence or even that they sought it to the tribunal. It's confidential.
But I agree it's odd in this context.
I would not be 100% the LA even knows what it means (yet to meet Sen officer who understands the law) I would write back and say what you do mean by w/p to check your understanding is the same as theirs.

They may think it looks as though by checking out your evidence they are accepting it has some validity and don't want to disclose this fact.

I am not sure they can use w/p because tribunal is not supposed to be adversarial and there is duty on LA to put all cards on table and not withhold evidence from tribunal. See David Woolf Sen guide case at end says LA cannot withhold evidence negative to their case. He also refers to another case which says the tribunal stands in the LAs shoes when reaching a decision. So I am not convinced they can use it at all. I don't think they can make it confidential.

Might be one for IPSEA? But ask LA to explain first, it may just be Sen officer trying sound impressive.

AgnesDiPesto Sat 25-Oct-14 22:51:42

Cross posted. And yes you can refuse another assessment because as its w/p request they can't disclose the fact they asked and you refused either! ha!

bjkmummy Sat 25-Oct-14 22:57:59

i like your style agnes ! my gut feeling is this faffing around is delaying any report being done and the LA will then use this as an excuse for an adjournment - the fact that they have had the first SALT report since march and did a whole stat assessment without requesting an NHS one I guess is something they wish to forget

twice now i have asked them to confirm that by asking for a further report they now accept that they did not fully assess her during the stat assessment - both times they have refused or ignored that question and will not answer it - starting to feel like blooming Jeremy paxman!

AgnesDiPesto Sat 25-Oct-14 23:13:43

Then agree but on your terms. It's on the record and the report is shared.

2boysnamedR Sun 26-Oct-14 00:05:55

This is spookily like my case. Cloak and dagger with the nhs. Feels very dark to me.

I will use the tip above too that if they reassess then they didn't do sa correctly in the first place

bjkmummy Sun 26-Oct-14 00:14:10

see its crucial in a sense in my case to get them to admit it as they were ordered by the tribunal to fully assess all of her inter related needs - they've failed to do that so assessed her doing the minimum and issued the NIL - now they are having another go at getting evidence but we know its not to benefit my dd and they've shown that now with the 'without prejudice' bit being sneaked into the letter.

all this just to get a blooming statement - this is more effort than my blooming part 2 3 4 appeal for indie placement and to date more expensive! but guess more at stake her for the La than me - if I lose will be a blow but if they lose - will be 3rd in a row to me and I think that's what they fear

KeepOnKeepingOn1 Sun 26-Oct-14 07:02:25

Its not just pure 'without prejudice' which does mean that the letter or its contents cant be submitted as evidence in court. Use of without prejudice communication is used as a means to enable offers to be made to settle claims without fear that those communications would later be used by the other party as an admission of liability.

This is 'without prejudice to your sendist appeal' - they are saying that they recognise your right to appeal and have indi reports done but they are not about to concede (as they would, logically, if they accepted the reports) because they don't really want to agree with MS's or DK's reports (too expensive) and so are getting a second opinion (and are crossing their fingers hoping for disagreement). If you did not have MS's report DD would not see an NHS SALT and the fact that they are seeking a second opinion is not because they, independently, or any of their experts, believe DD has ASD but just to counter your report.

They will submit the report regardless of what it says. My LA NHS report and indi LA SALT report both agreed with DK and MS. btw - they can't use the SALT to disagree with MS diagnosis (rather than scores/obs) if the NHS SALT is not authorised to diagnose. They should be getting comm paed and/or indi SALT authorised to diagnose but don't tell them that wink

I did not get drafts and certainly would not have been able to comment on any draft. I got copies of all reports at the same time at final evidence deadline when they served them on tribunal and me simultaneously.

KeepOnKeepingOn1 Sun 26-Oct-14 08:00:56

For DS1 who was not a current patient the LA justified not getting SALT or OT reports because he was not a current patient. This is a 'tautology' - SA is full assessment of needs not updates from services the child is already known to. Not already known to services does not mean the child has no needs but just that needs have not been identified.

With DS2, who was a current patient, the LA have justified not getting even updates from SALT or OT by blaming the comm paed/NHS in general for not submitting them as a matter of course. This is just a pure excuse grin

bjkmummy Sun 26-Oct-14 08:55:08

keep - that is so true and the path my LA are going down - they say that the NHS paed should have raised the issue re SALT when they did their medical part of stat assessment but it was a 4 minute phone call and I did say she had salt needs and this is noted in the medical report but the paed obviously didn't want the bother to actual have to do something like a referral so just dismissed it.

and the needs not identified is what I keep asking them - do they accept that they never identified all of her needs through the stat assessment process (as ordered to do so by the tribunal last time) and they wont answer the question

with dd twin when we are at tribunal with him the LA realised very late in the day they had no SALT report and then tried to get an adjournment - judge told them to poke off as they had had plenty of time and they could send the reports to the SALT to comment on - NHS SALT told the La to poke off as they had never seen ds so they never did get a SALT report , mine stood and we won what mine said :-)

2boysnamedR Sun 26-Oct-14 10:25:21

I can see the wording of things seems to be critical. How the hell are lay parents supposed to know these things?

bjkmummy Sun 26-Oct-14 10:35:22

they don't 2boys hence the power of this board - the help and support I have had on here over the last 2 years has been unbelievable and the amount of hand holding - I doubt I would have been so successful if it hadn't been for others on here sharing their experience and advice and kept me sane - doesn't help I guess that I have more than one child with SEN so keep ending up in one battle or another - keep hoping for some calm but just cant seem to find it before the next battle BUT my other children are happy and settled so the other battles were worth it but my god , the amount of stress we all have to go through is unbelievable and no one understands that unless they have been through this awful process themselves hence again why this board helps to keep our sanity

bjkmummy Mon 27-Oct-14 12:58:18

well email drafted - lets see the response I get back - I think they actually have no idea what 'without prejudice' means and just thrown it in cos they probably heard it somewhere but im not going to take the risk so am covering us just in case they do try not to disclose the report.

also asked them for 3rd time to answer a question which they are determined not to answer and also mediation = said happy to do it if its purposeful but not if the LA will not move at all about them not issuing a statement ( given their response less than 2 weeks ago made it clear shes never ever going to get a statement , im guessing mediation isn't really on the table)

StarlightMcKenzie Wed 29-Oct-14 11:56:59

'It means you can't disclose the existence of this evidence or even that they sought it to the tribunal. It's confidential.'

And what if you did? Surely if any case was truly about the child and their needs, that gives the parents the right and the LA the DUTY to disclose all relevant evidence.

StarlightMcKenzie Wed 29-Oct-14 12:04:41

If I was representing myself at tribunal, I would be tempted to agree to the w/p and then afterwards tell the tribunal and if challenged say how the hell was I supposed to know what w/p meant, I'm not legally trained nor expected to be to access the tribunal service and if the LA want to have secrets from the tribunal that they wish to share with me then they need to put their request in plain English.

StarlightMcKenzie Wed 29-Oct-14 12:10:57

I'd also say that I thought w/p meant the LA were going to stop being so prejudiced against disabled kids and thought that we'd moved forward!'

bjkmummy Wed 29-Oct-14 12:13:33

a certain charity I contacted for advice have referred it to their legal team - the initial response so far is that they are questioning the legality of the letter and are considering sending a letter to the LA - I do need to respond though as had it since late last week and about 6 weeks to final evidence - im worried that the LA will say they haven't had time to get the report but then if they are hiding behind the 'without prejudice' rule then they will have to tell the tribunal themselves they were seeking such a report. its all just madness. if I hear nothing by the end of the week will just have to deal with it by myself I guess

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