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Permission to appeal - wrong in law...(11 Posts)
I'm struggling with the concept of a decision being "wrong in law".
We lost our Refusal to Assess appeal a few weeks ago. The decision has many inconsistencies and inaccuracies, and it seems our evidence was barely paid any attention, the LA's case was swallowed hook line and sinker, and (imo) pertinent evidence and discussion was simply ignored.
For example, the decision noted (drawn from different paragraphs in the decision):
- if a child flat lined, the school would call in further help
- the school had not asked for more support
- the LA conceded scores particularly in Maths and Science were going down rather than increasing
- we found there was evidence of consistent progress
The actual evidence showed 1 SL progress in 2 years for Maths and Science, and 2 SL in 2 years for English which we drew specific attention to at the hearing.
The inconsistency here to me is bizarre and perverse, but I am told there is nothing "wrong in law" with the decision.
I simply cannot understand how the panel can summarily dismiss this lack of progress and for it not to be challengeable in law.
I just don't get it.
Any comments appreciated...
Wow! I have been to 5 tribunals with 4 different panels and they have all been knowledgable and supportive of families!
Sorry you have had such a bad experience! If you are sure that your child needs assessing and habe evidence of no progress then you could do a new parental request! As far as I know there is no need for a break if an assessment has not been carried out!
It really doesnt surprise me that the school havent asked for additional support as now they have to be able to show what support has been tried before they can ask!! Most schools wont spend money on supporting children who they think they can manage and there is in my experience arrogance involved where they wont admit that they cant meet needs!
Hi OP - give this blog a read.
If it sounds like you could get some traction going, maybe get in touch with the authors, although they would presumably talk up their chances.
Many of us wouldn't have got very far without SENDIST - or at least, the threat of it. But the inconsistencies in judgements and approach between different panels is jaw-dropping sometimes - as is their willingness to take evidence in hearings on trust from people with every incentive to lie.
The tribunal is supposed to be investigative, and some panels take this approach. Others, simply don't - and it sounds like you had one of the latter, possibly with members who have an interesting take on what inclusion means.
I think all of us - parents, LAs, legal bods, expert witnesses - should have a right to have the ability to see data on individual First Tier Tribunal decisions, the people who sit on the panels that made the decisions, their expertise & experience in SEN law, and their expertise in the particular SEN of the child for each case.
PM me if you want to chat further - I suspect we know each other, and if you are who I think you are, then I'm certain that the decision this panel reached was a disgrace.
This was our second tribunal - the first was for ds 3 years ago which we won. The judge was fearful that day and ruled the hearing with an iron fist, putting the LA in their place a few times, and was very inquisitorial. Complete contrast to dd's panel, who didn't have one single question for dd when she went in to see them ahead of the actual hearing, and then criticized us for bringing dd into the main hearing which we felt obliged to do given their lack of interest in her in the preliminary and the lies we were anticipating from the school/LA.
It has been suggested to us to just move on and reapply under the new EHCP legislation, which I had reluctantly accepted we would do, but with the deadline date for appealing the decision imminent my blood pressure is rising again about what happened and the anger and injustice I feel about it all.
I did wonder on reading some of your posts on other threads if you might be the person who pointed me to Mumsnet in the first place . I will PM you.
Look at SOSSEN on their website they have some law you can quote on for appealing to the Upper Tier. First you have to appeal to the FTT and get refused permission to appeal which they will do as a matter of course as they back up their colleagues. Then you fill out a form to the Upper Tier - ask for a oral hearing first so you can meet and tell them face to face what the issues are as otherwise many Upper Tier hearings are just heard on the written evidence being looked at. If you feel that you want anything reviewed at a Judicial review it is also at this point which you can ask for that as the Upper Tier can also hear Judicial reviews. You need to look at all Laws/Case Laws (Manchester Judgement is a good one) Education Laws and see where you can apply the law to a point in your own case. Did the Judge give you a chance to respond to the LEAs statements, did the Judge get the professional qualifications right of the evidence they reffered to, was the finding of facts based on evidence or just verbal chat which you had no chance to respond to?
Also start the process again if it was longer than 6 months ago when you last applied for a EHCP/statement assessment, appeal the refusal to assess and get the mediation certificate and appeal to the FTT again. Send the LEA & FTT a strong message that you will not be giving up or giving in.
Thanks for the advice wasuup. We concluded the only pragmatic action was to swallow our anger and frustration and move on to a new EHCP request after the summer holidays, meanwhile trying to recharge the batteries.
OK well you do know the LEA will try and strike out any future request or appeal you make by concluding that you lost the last tribunal and if you don't have any "new" evidence then they could succeed. This happened to this even though we are also in Upper Tribunal appeal as well. Luckily we had new evidence but just to warn you that they might try and pull this. Good Luck.
Hmm, that is shocking and disgraceful with the sub level progress.
I would hate to get private reports at this stage as you will surely be appealing another three times yet ( refusal to issue, then a crappy EHC)
What evidence have you got? Nhs reports?
I'm sorry, the emotional cost of this is backbreaking.