EHCP support thread no. 4

@RibbyJumper IPSEA doesn’t do pre-action letters.

From your posts, it is unlikely JR for breach of s42 of the Children and Families Act is possible. At the minute, section F does not detail, specify and quantify all the provision required. Once the amendments have been finalised, the way to improve this is via SENDIST, not JR. An appeal for B&F will improve the EHCP. The LA must adhere to SENDIST’s Order.

You mention the timescales are in hand, and the LA is working on it. But they have just told you they are not. They are prioritising phase transfer appeals. Right now, I would email the LA threatening JR if they don’t finalise ASAP. Then, if they don’t contact you next week like they said, you have already warned them.

@NonplasticBertrand

I expect you already know about IPSEA? Suggesting just in case! They should have advice.

@BrightYellowTrain
I’m just not sure what I need to send a pre action letter about at the moment!

1)Time frames - that seems to be in hand? I do think they are now working on it. If I contest this, I can‘t see how it’s going to help. I do think the amended EHCP will be with me soon.

2. Section F - I do think that will be wrong, but I don’t know yet?? So I wait until I get the final amended EHCP? So yes, this needs to be right and I do think this will impact his key stage transfer. I can see how fighting this will help. I can’t start a pre action letter until I know what they state here, and whether they have put in the recommendations?

Key stage transfer at KS2. This is the thing I am gearing up for and the thing I am most concerned about. This will happen in 25/26.

Someone asked me at the weekend what I’m fighting for, what good will it do, am I after compensation.

No - I want what is right for DS!

So if I go to SENDIST over section F, what will be the outcome? That it is written correctly and by who? Someone with more experience? Or will it just get added to another pile and written incorrectly again?

I can see the point in this because it’s vital that his next SENCO has an an accurate picture of what he is like and his needs.

@Macramepotholder I would chase now. It is the LA who is responsible for ensuring the provision detailed, specified and quantified in F is provided. This duty is non-delegable. The bulk of the provision should be in place within 5 weeks. Case law BA, R (on the application of) v Nottinghamshire County Council [2021] EWHC 1348.

@NonplasticBertrand you could try: Watkins, Simpson Millar, Leigh Day, Bailey Wright & Co and Watkins and Gunn. It will be a matter of perseverance, I’m afraid. Legal aid for the pre-action letter will only be available if you yourself are eligible for legal aid. If you aren’t, you could also look at Birkett Long, which has swings and roundabout because they are cheaper than some others for the pre-action letter but the LA will be aware they don’t have a legal aid contract so if the pre-action letter doesn’t work you will still have to find someone who does to take on the case.

@RibbyJumper parents appealing to SENDIST isn’t unusual. Schools cannot refuse a child because the parent is appealing. Neither can they offer-roll.

The LA could, in theory, amend the EHCP again, but they are unlikely to if they have ignored your representations.

The AR process runs alongside the appeal process. Given the length of time to hearings now, it is common to have a review mid appeal. The outcome of the AR can feed into the appeal process. There is some inconsistency as to how this is handled at the moment. And is another area where LAs are being allowed to act as they please. Judge Jane McConnell has expressed she doesn’t expect LAs to issue finalised amended EHCPs during appeals. What is happening in practice isn’t consistent; some LAs are issuing amended versions, some are not. Where amended finalised versions have been issued, SENDIST is making some who have amended versions submit fresh appeals because it supersedes the EHCP subject to appeal. Sometimes these are then consolidated, but not always. Yet other times, SENDIST is allowing the exact same circumstances to be incorporated as part of the existing without a fresh appeal being submitted.

Waiting to appeal until after the next review just delays things. You may still have to appeal. It will only be a phase transfer year if it is infant to junior school. Not if in a primary or 3 tier system where first school goes beyond Y2. And whilst the timescales post review must still be adhered to, the phase transfer deadline has a is the 15th Feb.

Morning All. Ok, finally biting the bullet and cracking on with a pre-action protocol letter. Unfortunately the SOS SEN list is closed, so I think I need your recommendations for Solicitors (with expertise and a legal aid contract). Any suggestions appreciated.

So I’ve made the amendments.

What the LA will send me next is the final EHCP (I have no doubt this will be wrong).

They can’t change the final EHCP so I’ll need to appeal to SENDIST.

This will take months.

DS will have another review in July. Surely this will come first? Is it better that I chase, chase, chase this one as it will be a KS1 to 2 transfer? With knowledge now of when it should be done?

Or am I appealing the whole thing, and will this affect his Key Stage transfer if it’s in contest?

It worries me that his next school will view me as difficult from the start if they know I’m contesting, and then try to off load me if they can - knowing they they’ve got a woefully inadequate LA who will take a lifetime to sort anything out.

And then I’ve got another legal fight - which I really don’t think I’ve got the knowledge or resilience for….

How long would you give a school to sort out additional provision after an ehcp has been issued? No 121 to be recruited or anything but they are supposed to be arranging OT, additional maths sessions and a sort of SLT-lite.

I have chased once and was told the senco and class teacher were 'meeting to discuss' but nothing since....

@RibbyJumper LA staffing issues aren’t your concern. Neither are their finances or other DC’s EHCPs. The two phase transfer deadlines come around at the same time every year. They aren’t something that has taken the LA by surprise. Sadly, DC whose parents know the law and can advocate for them get better support. It shouldn’t be that way, but isn’t going to change in the foreseeable future. If you give the LA an inch, they will take a mile because they will see they can get away with acting unlawfully.

Personally, I would push the LA to finalise ASAP. They have already dragged this out for months and months. The longer you leave it, if you then need to appeal, the longer it will be to a hearing. This is even more important if you would request an expedited hearing for any reason - there will be less availability once phase transfer appeals have been dealt with, so getting your request in sooner rather than later is beneficial. Plus the phase transfer excuse is the latest in a list of excuses they have used.

You can’t appeal to SENDIST until you have a finalised amended EHCP. Once you have a finalised amended EHCP, if it isn’t accurate, you should appeal. If you don’t, the provision the school is providing now doesn’t have to be continued. The school could stop it at any time and if you have then let the right of appeal lapse, you may not be able to appeal (sometimes it is possible to be granted leave to appeal out of time but it isn’t guaranteed especially when there isn’t a specific reason you are late). This would then leave DS without the support he needs. You would need to request an early review, which the LA may not agree to. If they don’t, there’s no right of appeal. You would have to either wait for the AR or request a reassessment of needs (which would come with the right of appeal if refused, but given the appeal timescales isn’t so helpful in this situation now).

After rewriting DS’s EHCP - I’m eventually getting some responses from the LA that’s it’s being worked on and I’ll get a response next week. They are overstretched and prioritising key stage transfers. His case worker is on long term sick leave.
If I demand, threaten the law, SEND tribunal etc - I’m thinking - what good will it do? They have no resources and then - I’ll be depleting more funding if I start a tribunal process?

If I’m demanding with someone who is already overstretched - will they just end up on long term sick leave too?
The school have agreed to
use the proposed provision map I wrote in the interim, and I can see already that DS is getting better support.

@Muvva1981 I suggest you ask MNHQ to edit your post because you can see your name on the photograph.

Sadly, it isn’t uncommon for LAs to unlawfully decide the type of placement they are going to make before they have even sent parents the draft. It shouldn’t happen. It doesn’t mean you can’t state your preferred school is a special school. Once you have the finalised EHCP you can appeal. I would focus on pushing for the finalised EHCP.

"Please see attached email communication. I have omitted Case coordinator name. "

See this is why I'm so confused. I've now had the senco AND the case coordinator both tell me that mainstream will be named and I should see this information as it is. But I don't.
Have they made some almighty bodge up telling me this information before the finalised plan?
I won't be withdrawing from appeal. I'm actually, now I've had time to gather my thoughts as it were, going all the way.

@SprigatitoYouAndIKnow if you deregister and EHE, the appeal will continue. However, I wouldn’t EHE. If you do that, there is no incentive for the LA to concede. Crudely, whilst DS remains in the system, he is someone’s ‘problem’. If you EHE, it is easier for others to sweep DS’s needs under the carpet. If he can’t attend school, the LA has a duty to ensure he still receives a suitable, full-time education. But if you EHE, the LA will say you are making suitable alternative arrangements, thereby relieving them of this duty. If DS is out of school, you can request an expedited hearing.

The LA have sent us links to all special schools and SEN units.

@TripleRocks I wouldn’t rely on this list being all the possibilities. LAs often tell parents what they want them to know rather than the full information. They often miss possibilities in other LAs, and some independent schools and non-maintained special schools. Ask around locally, look on the local offer, search for schools here.

@Muvva1981 the draft must not state a placement or type of placement. See Section 38(5) of the Children and Families Act 2014.

You shouldn’t withdraw an appeal. The LA should concede. Different processes.

Don’t focus on funding. Focus on MS not being able to meet needs. The LA is responsible for the provision in EHCPs and this including ensuring there is sufficient funding.

Since the LA is over the timescales, I would push them to finalise. LAs can try to drag the prolonged back and forth out for months, frustrating your right of appeal. That doesn’t mean you still can’t continue to try to work with the LA on settling the disputed content/placement. What it does mean is months and months aren't wasted without any provision (because the provision in an EHCP draft doesn’t have to be provided until it is finalised) and without submitting an appeal.

Apparently I was going to get email alerts with any updates. I only received the one update yesterday when she uploaded the 3rd draft.

I was under the impression that when at draft stage the school type cannot be named? Why is it im being told the type that will be named and I should be able to see this ?

Has someone made a fudge up and i should have not been made aware of this as this stage?

Big update here.

Edit : DS is 4yrs old. In Reception. Not compulsory school age till end of August being a summer born. But my choice for him to go to school.

So yesterday I had a phone call from the case coordinator for my DS Ehcp which is on its 3rd draft. I cant fault her, she was lovely and was very thorough going through what to expect etc.

This is where it went wrong. She tells me that when the plan is finalised, that MS with band 4 funding is what will be on the plan. Apparently this is and has been readily available for me to view on the ehc hub since they agreed to issue, on the 2nd Dec!

She directed me to where this would be and funnily enough, I have no such section on my decision tab. Nowhere on the hub does it say they will be naming MS .

At 2nd draft my DS current MS was consulted along with my named preferred SS. MS responded saying can't meet need, SS responded saying yes they can and can be named on the final plan.

Onwards to 3rd draft. I've directed her, quite curtly, to send a new consultation to my named preferred SS. She has done this but also sent consults out to THREE MS schools, none of which are my DS current setting . 🤦‍♀️🤦‍♀️🤦‍♀️

I've been told, numerous times, that my sons needs can't be met with the level of funding he's been awarded in a MS setting and the SS can meet this need on that funding level.

I'm just aghast how they are planning to completely disregard his needs. They haven't changed, he still needs this level of support if not more .

I'm lucky in that I've got someone ready to fight my corner for what's ahead. I'm fully prepared to get an emergency review AND go to appeal as i know that the two can run concurrently. If by some miracle the L.A then concede and name my preferred SS at emergency review then I will withdraw from appeal .

Why does this have to be so hard?

Year 5, so we need to pick secondary at the end of this year.

We are getting DDs draft EHCP next week. The LA have sent us links to all special schools and SEN units. I'm cautiously optimistic this is a sign they aren't going to push us back to mainstream.

We have agreed notice provisions with her current independent school. The LA have confirmed they will arrange a tutor from thereafter until a school placement can be arranged. I was honestly expecting a big fight over this, and complications withdrawing her from her current placement, so I'm super relieved.

We are now over a year into this process, and I don't want to let myself believe we are all on the same side now as there have been so mamy fights to get to this point, but it actually does feel like we are on the same page just at this moment. Obviously I know this may not last, so I'm not counting my chickens but it has relieved the stress levels a bit.

Trying to work out what is best for ds1. The ehcp review decision that he doesn't need one means he is still floundering and will lack support when he moves.up to secondary. If we decide to home educate for now, does it affect the appeal? Tribunal dates are so far away that it is such a long time for him to be in limbo over support.

I am also annoyed with the process as a friend's child who has a lot of similarities to ds2, but is a lot more academic, has been granted special school and ds2 hasn't. They clearly aren't looking at the genuine need, because they both need alternatives to mainstream. It's all just about saying no to everything they can.

Ok thank you so much for all your help, I’m so glad your on mumsnet your so helpful. We will be on week 14 next week so I will wait and see what the coming weeks bring, hopefully 🤞 a decent draft

@Cinnamoncupcake the draft must not state a placement &/or type of placement. Section I must be blank. I wouldn’t take DD with you. Be aware some SS won’t allow visits until after a draft has been issued. Some won’t even allow visits until they have been consulted.

I haven’t really looked at any special schools but I do know my closest one is 35 minutes away, I think tomorrow I will call a few schools and see if we can visit next week so I’m ready if the draft comes at week 14, will they recommend on the draft what school setting would be suitable? And would it be best to take my daughter with me to visit these schools?