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Hahaha! Think I may have backed LA into a corner!(56 Posts)
Many will know my back story and the shite ds and I have been through.
If you don't then the information needed so far is tribunal ordered they assess.
La played extension of assessment when I requested some reasonable inputs from professionals. I didn't comment.
I've recently received some paperwork with includes the oh so illegal statements "higher level of support" "may benefit from" etc.
I sat on this and with a week to go until decision just emailed and asked them politely how they decide whether is issue or not without specified and quantified inputs from assessment.
The email I got back days "it's in draft stage and now we ......"
So I've emailed thanking them for informing me it's in draft stage and asking for date I'll receive the draft!
Now let's pre empt how they are going to get out of their mistake and if anyone has advice about where I now stand legally I'd be grateful.
No advice, but plenty of moral support from over here ! I hope you kick the LA's arse
So they've dropped their pants and revealed they will be issuing a plan - is that right?
I have no idea on the legal pov, but I hope they come back to you and confirm it properly rather than trying to waffle it away somehow.
It's still in assessment stage. I've received no written letter to say issuing.
Basically their email was to avoid answering the bit about specified and quantified and in doing so told me it's in draft stage.
I'm hoping that means legally they can't back out now!
I found years ago in internal emails that they had drafted a statement, then issued a NIL!
Their excuse a senior LA officer makes the final decision. They also like to use the 'panel' excuse, it went before 'panel'.
Legally you have the right to appeal their decision. As you probably already know some LA's do what the hell they want, until the Law is enforced.
My take on this is they probably do plan on issuing a draft. But you already know the draft is going to be very vague from the reports.
With things such as access to and benefit from, all of which school can probably say they already do.
'Access to speech and language'.....yes we can access speech and language if/when we ever feel he needs it! For example.
I was under the belief they wouldn't issue full stop! They maintained all the way through application and even tribunal he didn't need assessment. They are only doing it because tribunal ordered them to.
Then in tribunal stated even if they are ordered to assess ds didn't need an ehcp issued.
But to be fair if they issue a crap draft that's much better for me than refusal to issue.
But I really don't believe they ever intended to issue a draft and in a bout 2 hours when poor la caseworker opens email they'll be trying to work out how to say it's a mistake - they are still assessing!
Oh and now it's apparently in assessment stage and draft will be issued in next few weeks and if they decide he does need an EHCP after that I'll then get a copy to check.
PLEASE tell me I'm not going mad and they are totally doing this wrong? And that my original question of how they are going to decide if it's needed or not without specified and quantified reports is totally valid?
It is totally valid. Now sit back and relax for a bit, you have your paper trail now, whatever they decide to do next.
If they decide not to issue.....you have pointed out how did they reach this decision if info used for this decision was unlawful.
If they decide to issue draft and it's extremely vague....you have pointed out, as above.
You are gathering evidence, creating your paper trial for if/when you need to force them to follow the law.
At this stage they can do/say what the hell they want, legally there is nothing you can do until they give you a formal decision.
However if you do have to appeal, the fact you have pointed out their legal duties and they have ignored them is a) is not going to look too good before Tribunal b) and they know it and will probably want to avoid Tribunal
The sad fact is my la don't seem to want to avoid tribunal.
They forced refusal to assess to tribunal despite Ds not having a school that he'd attend as a named school and still sat there saying school he hadn't been able to attend for 5 months were and could meet his needs.
Even the judge was quite firm with them abiut why they insisted this and ignored all reports provided.
As far as I remember, The Draft is a document that does not necessarily become an EHCP. It can form the basis of a Plan. The Draft will be a cobbled together version of the various LA assessments and other information you have given them. It will almost certainly be unspecified and unquantified.
Then they ask you to comment. I refused to comment. They then, in my case, made a decision that it was in fact a Draft EHCP not just a Draft Plan (sounds Alice and Wonderland? Yes, but that is the way they did it). From the moment they formally "issued" a Draft EHCP (they sent me a letter to confirm this) I was then given two weeks to make amendments.
At this point I went through the draft with a fine toothcomb and rewrote it using direct sentences lifted from the reports/private reports ie: ds has considerable difficulty understanding instructions unless they are broken down into small steps or ds needs extra time to process instructions or just ds is on the lowest centile (Ist centile) for processing but lifted directly from the reports, which should have some factual information. I literally rewrote it, most of the draft was just woolly nonsense. But all information which was already in the reports because otherwise they can challenge your use of these words.
Then I had a meeting with LA. They agreed to keep the wording. There was some disagreement of specifying and quantifiying as you might expect, the LA reports did not have much but my private reports had far more (I decided not to use some of them as they suggested that ds should go to a small specialist school and I did not think this the best course of action at that stage, you may have other wishes)
The Draft was completely changed and re-issued as an EHCP with all my changes. However, they did not in fact immediately "issue" it, because there was a problem with getting the school to accept him, the school I had named, as the LA refused to give them any extra money....Arguing between school and LA went on for several months. Finally they gave the school some extra money, "named" the school in Part 3 (I think),and issued a final EHCP. Ds then went to the school in question.
If you had a small specialist school in mind, you might need a lot more specifying and quantifying which is where your reports are invaluable, because they are the evidence which you put verbatim in his "needs" and the specified and quantified action that must be taken to meet the needs
I had a SN solicitor. She was in F...m, Hants. But I rewrote the draft myself without help from the solicitor, for various reasons. Parent Partnership was also extremely helpful in explaining how to redraft the Draft.
I suppose what I am trying to say, is that a Draft does not necessarily mean they will issue an EHCP. The Draft goes before a Panel which decides on your child's suitability for an EHCP based on what is in the Draft, which includes the original reports. But if you think the Draft is in fact rubbish, you are allowed to comment before the Panel sees it, and change bits if they are factually wrong or give the wrong impression. I think I decided the evidence in the Draft was sufficient to show he did need an EHCP, and only changed it when it was formally a Draft EHCP.
I just want someone to accept that ds may appear to 'manage' but that he needs more to reach best possible outcome.
Apparently I'll only get a copy of draft once school have said if they can meet need or not.
My actual argument ATM is that they want to send an unspecified and unquantified draft to school and ask if they can meet need.
Can they legally do that? And if they send this unspecified and unquantified draft and school says "yes we can meet need" do I then appeal the detail in the draft?
All I want is a fair assessment and needs to be met. I actually am happy with it being any old how! But ATM it's just the "benefit from social skills support". School can say "oh yes we can provide social skills support" but actually none will be provided and it's not a reason to issue an ehcp on what school have said.
I think I'll have to do what you did. I'll wait until plan is finalised (I'll check deadline as they've said different all along) and ask them to clarify exactly what the procedure is
I think what they have told you is absolute b****s. A tribunal has ordered them to assess him, to decide what needs he has. It has nothing to do with the school or any school meeting his needs at this stage. It is defining those needs.
I would check with IPSEA. I kept going back to them on every little thing, but it really was useful. They answer questions by email very quickly, if you make it about a point of law rather than your specific query ifysim, ie: what is the process by which a draft plan is issued.
I thought the draft EHCP had to go to the parent first, so they could name a school. And before that the decision had to have been made by the LA whether to issue one or not. It sounds like they are consulting with the school whether DS needs an EHCP when it is supposed to be the LAs decision. How you can stop that I don't know as presumably they will claim it is a different kind of draft?
In some LAs the draft is not The Draft. My solicitor was completely confused that I had been sent a draft that was not The Draft. But that was just how it worked in my borough. The Parent Partnership lady said it was normal. The draft then turned into The Draft after Panel agreed to issue an EHCP but before it was amended by me.
It's very clear here.
LA do have to request info from school during assessment BEFORE they decide whether to issue draft.
There is legally only one kind of draft.
And you cannot appeal the draft, you have to finalise and appeal
However, you are allowed to amend it within the 2 weeks they give you. Some people decide to finalise a poor Draft and appeal because it means they then have a Tribunal advantage, I cannot quite remember the whys and wherefores, but it can mean that you have the chance to get the new EHCP written very quickly and finalised with the best school in Part 3 (is it Part 3?) without any further quibbling from the LA, as the Tribunal can order them to make an EHCP of your drafting. It is certainly what my solicitor recommended, but I decided not to do it that way, I wanted to work with the LA not against them, poor trusting creature that I was...
It all depends what the stakes are. For some people an incredibly expensive school means higher stakes, because they know the LA is not going to agree to the school they have named without going to Tribunal anyway.
Ah it appears my la are like yours then knitting! They are producing a draft draft and sending it to school to ask if they can meet need and then to panel to decide if to issue or not.
Which puts me right back to my original question to them they've appeared to try answering and that is how they can decide if his needs can be met if assessment so far hasn't specified and quantified support.
Btw I'm happy for ds to remain in the ms he's in - but needs to access social skills groups and sensory stuff.
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