EHCP support thread no. 4

Is it normal for an educational psychologist to do telephone appointments with me and preschool to complete there report for EHCNA instead of going into school to see my DD? Everyone else’s evidence needed to be back by the end of December and the educational psychologist called me last week to arrange a phone call meeting with me because her report needs to be back by the end of January ( they are working 6 weeks behind ) it sounds like she has already read through all the paperwork but wants to ask us questions to make it water tight for when it goes to panel. I was hoping she would visit preschool to make her own report instead of what me and preschool have already told the LA.

@Macramepotholder an appeal does take time and energy. And it is, of course a valid decision not appeal. If you have the evidence already, if you appeal now, you won’t need to spend money on more. Whereas, if you wait, it is likely you will need updated evidence. That might cost you.

@RibbyJumper it isn’t as simple as the school saying they can’t meet needs. If the school is your preferred school, the LA must name it unless the LA can prove:
-The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) of the child or young person; or
-The attendance of the child or young person would be incompatible with the provision of efficient education for others; or
-The attendance of the child or young person would be incompatible with the efficient use of resources.

What you have posted doesn’t reach the high bar for that. Because the school is not wholly independent, they do not need to agree to being named. The LA can, and must unless they can prove one of the above, name them even if they object. The LA does not need to pursue JR to name the school against their will.

If the school is named, they must admit. They cannot turn DS away. That would be an unlawful exclusion. The school can be forced to admit if they try to refuse.

The school could ask the Secretary of State to determine if the school should have been named/the LA has acted unreasonably but the school must still admit in the meantime and can be forced to if they refuse. The SoS’s decision is not above the FTT’s decision if a parent appealed either.

The school could also, in theory, challenge the decision via JR, but that is extremely uncommon compared to the number of times a school is named against their will. It is also unlikely in your case because the school is unlikely to be able to prove the LA acted unlawfully. And the school will know that.

@brightyellowtrain you're right of course. I've got a bit towards the end of my energy (and cash) with it really and DD2 needs attention also. If it's not going to be massive amounts of work to appeal this one thing I'll give it a go. Otherwise the academy trust does have an SLT who comes in anyway so I can see if she can get that provision up until the end of primary, we have had a term already. The OT is more urgent and important than the SLT at the moment.

@BrightYellowTrain

Please can I ask how ‘cannot meet needs’ works?
The situation currently feels like the school are not supportive, but the LA are supportive.
It feels like his current class teacher, SENCO and head are against his placement and supportive of each other.

It feels like the LA are supportive of me in my conversations with them.
The head moved to DS’s school after her last school went from OFSTED ‘good’ to ‘needs improvement’. SENCO is deputy headteacher without a class.
They LA wanted to know my feelings and asked a few leading questions. They ‘sort of’ expressed some dismay about the school.
I know - from his class last year - that two children were asked to only attended half days. I then think one child was then excluded, and I haven’t seen the other child since returning to school this term.
The LA must know this too, and perhaps not be happy about the school’s actions here.
Thing that is ‘saving’ DS - I think - is that he isn’t disruptive. The SENCO describes him as ‘passive’ (a word I hate).

My question is:
If the school state ‘cannot meet needs’ could the LA overrule this automatically?
Or would it need to go to judicial review?
If the school state ‘cannot meet needs’ would they just turn DS away if I attempted to bring him in? Even if I felt they’d made this decision unlawfully?
Thank you SO much.

the other option is to wait until AR after term 1 of secondary and work with the Senco to say it's needed. I suspect the timings may end up similar.

The thing to consider with this is, there’s no guarantee the LA will agree to amend following the first AR even if the SENCO agrees SALT is required. You may still have to appeal.

If you have to chase the LA to begin the AR, chase the LA for their decision and chase the LA to finalise if they propose to amend, it may well be Easter of Y7 or later before you have the right of appeal. Then still have to wait for a hearing. And by then you may need updated assessments. By the time you have a finalised amended EHCP post appeal, it may well be the summer of Y8.

I think they're arguing for band 3 funding rather than band 2 which if I understand correctly would mean they would have to pay for it.

I think they're probably right actually when you add up all the provision time.

Ha ha yes I wish they would pay us. Just need to decide whether to push for the SALT provision now, there's a sort of budget version in the EHCP instead. Given appeal times it wouldn't be in place until secondary anyway so the other option is to wait until AR after term 1 of secondary and work with the Senco to say it's needed. I suspect the timings may end up similar.

LA have issued the EHCP pretty sharpish. They've ignored the private SLT report and the associated provision and now I have to figure out if I have the energy to appeal that part, but otherwise am generally happy with it. If we appeal it won't be in place until secondary now anyway.

But- my favourite part was that DD's school went back to the LA and said the funding band was too low. The LA said ok then- cost it out, but at our rate of £12.50 an hour. The senco had to point out that was below the London minimum wage and the LA have now gone a bit quiet.

Also the nearest academy famous for avoiding SEN students and with awful pastoral care called today as the LA had pointlessly additionally consulted them. It was almost comedy how desperate they were for me to say they weren't our first choice and had terrible pastoral care. We acknowledged our mutual animosity towards each other so they can say they are not a suitable placement.

Thanks @BrightYellowTrain I did use the ipsea model letter. I will ask again and copy the head.

Thanks @BrightYellowTrain

I see from the HoC briefing that:

The bill would make very significant and wide-ranging changes to academy schools and the rules they have to follow. These are schools that are funded by the government but are not connected to local authority; instead they are run by an academy trust, a not-for-profit company.
In short, the bill would ‘roll back’ many of the freedoms these schools were given when the current academy framework was established under the coalition and conservative governments after 2010. Academies would be subject to most of the same duties as maintained schools – that is, schools funded and overseen by local authorities.

@BrightYellowTrain

What has the world come to when an anonymous poster on Mumsnet provides better/more succinct/ impartial advice than anyone else.

@NonplasticBertrand elements of the controversial Children’s Wellbeing and Schools Bill includes changes to academies.

@BananaPie bases heard on the papers are a bit quicker, but personally, I would only do a paper hearing for refusal to issue if it is a very cut and dried case with watertight evidence.

The example is certainly better than many. It could be improved, e.g. by removing ‘member of staff’. What experience - 1 day or something more? What training/qualifications will the TA have? Removing ‘such as’. ‘Can be used’ doesn’t mean it will be. ‘Will be’ is better than ‘should be’.

Did you use IPSEA’s model letter to request the school’s SEN budget information? If not, use that to request it again. Copy in the headteacher. If you have already done that, I would ask again and be a bit pushier. If that doesn't work, I would also email the LA. If they continue to refuse, you can ask SENDIST to Order them to disclose the information. You can also request a costed provision map for DC.

It will be interesting to see if this government cracks down on those academies excluding SEND children or refusing to deliver the individualised plans the SEND CoP requires. Not sure why tax payers should bear the cost of academies attempts to massage their performance by excluding children with SEND needs? In other areas of public administration this sort of manipulation might attract censure?

Or why children, for whom mainstream would be the preferred setting, are being denied a suitable education?

Or why any SENDCO is allowed to take the line, 'we do quality first teaching, we're mainstream', given SEND law?

@BrightYellowTrain @Sunshineclouds11
thank you, that is really helpful. I will ask to move to an in person hearing when I submit the case review form. I was tempted to go on papers because they said the tribunal date would be earlier. My DC will have started year 10 by the hearing and the school first started gathering evidence in year 7. Time left in education is slipping away!

In terms of the evidence, the school are setting out what they can and can’t provide. I have asked them for details of their SEN budget but the SENCO has said she can’t provide this. I suspect I should insist they do.

I think the reports from the EHCNA are ok. We have had previous private EP, OT and SLT reports and the EHCNA reports took these into account. The recommendations that can’t be met seem to be well drafted to me. Here’s an example one:

A programme which supports the development of higher-order language and social communication skills, including:

• Spoken narrative skills and conversational skills.

• Social use of language and language for thinking.

• Confidence in communicating needs and feelings across different contexts

• Personalised teaching of social rules and behaviours and to go through situations

The use of content from the Language for Behaviour and Emotions programme and Social Use of Language and Language for Thinking programmes can be used to support the above. The above programme should be provided once weekly on an individualised basis, for 30 minutes by a Teaching Assistant or member of staff who has experience in leading social skills programmes in school.

@BananaPie We've been refused to issue also, along with the same reason.

Currently in the appeals process.
We are getting private reports done at the moment for further evidence.

Not doing a paper hearing, no matter how good our new reports may be.

@RibbyJumper even if the school claim they are unable to meet needs, if it is your preferred school, there are limited reasons the LA can use to refuse to name your preference. Nothing you have posted suggests the high bar for one of those reasons would be reached.

@Sunshineclouds11 yes, it means the appeal continues.

@BananaPie the majority of appeals are upheld, so don’t panic. You don’t need a legal team. You do need evidence. A Tribunal is about the law. That is why evidence is so important. However, the law covers whether needs can and will be met.

Is your evidence from the EHCNA as good as you think it is? By that I mean is it detailed, specified and quantified? Or is it vague and woolly? Have you sought independent assessments? Don’t worry about the evidence deadline. If necessary, you can request for late evidence to be admitted. Most of the time, it is allowed.

For a refusal to issue, I would only accept a paper hearing if it is a rock solid case with watertight evidence.

Hello, can I join for some support / advice?

I have appealed refusal to issue for my DC in year 9 (having previously won a refusal to assess appeal).

The LA stated in the refusal to issue decision letter that the special educational provision required can be made through the school’s ordinarily available resources, so an EHCP is not necessary.

My appeal is on the basis that the EHCP is necessary because in its absence my DC will not get the vast majority of the interventions which were recommended in the EHCNA. The school is not able to provide them in the absence of funding and an OT and EP on site.

I have now received the LAs response. It doesn’t really directly address my argument that the school can’t provide the necessary interventions. Instead it quotes a fair amount of case law regarding the definition of the word necessary.

I’m not quite sure what to do next. I have a few weeks to submit final evidence but if the tribunal is just going to look at a point of law rather than the reality of the situation (which is that the LA have no idea what the school can resource and are incorrectly assuming the provision can be made without an EHCP), I’m thinking I don’t stand much chance of winning.

I haven’t employed a legal team - just done everything myself so far, but I wonder if I should get some proper advice and a representative.

The hearing is 11 months away, currently planned on papers but again interested to know if in person would be better.

thanks !

@BrightYellowTrain

Thank you!

Sat down to start the letter this morning, and had a phone call from the Local Authority.

They said they’d send the amended EHCP by the end of the week.

They also asked about my difficulties with the school. I didn’t know whether to speak out, but I thought honesty and transparency is the best policy.
I will be paying close attention to section F.
I’m now stressing because I’ve clearly annoyed the school and I’m wondering if they might respond with a ‘cannot meet needs’ on his amended EHCP.
Anyway, I told the LA that I will fight with everything I have to keep him in mainstream for now. And I think the LA will support me here as it costs them less money.

Someone posted earlier about there are schools that do their best to help vulnerable children, and those that try to push them out. This is spot on. An inclusivity rating would be very helpful!

@Ponche Ok that makes sense. Thank you

@Sunshineclouds11 In the initial response, our LA also said they oppose our appeal. I think that’s normal, ours is still going ahead. I just took it to mean they disagree with my reasons for appealing.

Actually have I understood it wrong, the appeal will still go ahead?