EHCP support thread no. 6

You can remove any of the amendments you have previously proposed that you are no longer proposing. If you are still proposing the amendments, leave them in. So if you previously proposed X but you are no longer proposing X, you can remove it. But if you are still pursuing it, don’t remove it. You cannot remove any amendments the LA is proposing.

There isn’t one set format to hearings. Different judges prefer slightly different structures to the hearing. For example, some will give the opportunity to make an opening statement, but not all do all the time. It can help to have something prepared. At least a few bullet points. This is the opportunity to let everyone know about DD, bring her to life rather than just a name. Some like to show a photograph of DC if DC isn’t attending for some of the hearing. Some panels will ask questions about DC.

It can help to have a summary of the outstanding disputed content in bullet points or a table, including references to the evidence and their place in the bundle. Many will just cover the outstanding disputed content rather than work their way through the whole WD, but some will go through the WD.

Sometimes you and the LA will be asked to go away to work on the disputed content, then reconvene later.

You and the LA will both get chance to present your case. The panel may have questions. If you want anything repeating or clarifying, don’t be scared to ask. Similarly, if you need a break, ask. Even if the LA plays dirty on the day, don’t rise to it. You don’t need to stoop to their level and you don’t want to get the panel’s backs up. Even if the judge doesn’t say anything, they will see it. Don’t interrupt even if the LA does.

Have a closing statement ready. This is usually more formal than the opening statement. It is a chance to up your position, case law, etc. As the hearing progresses, in response to what the LA raises, add notes to what you prepare in advance.

Before the hearing, the best thing you can do to prepare is to make sure the bundle in correct. Familiarise yourself with it so you know your way around the bundle. Whatever works for you - annotation/bookmark/sticky tabs/your own index/colour code/your own summary document/screenshots. Work out whether you find an electronic or paper bundle easier to work with.

Any health care provision that educates or trains goes in F. Self-care skills also fall under PfA. An individual healthcare plan would detail more specifics of how to handle medical conditions beyond what would be included in F. For example, an IHCP would cover precisely how to handle an anaphylactic reaction e.g. calling 999 and what to say, EpiPen, inhaler, antihistamines, prednisolone, etc. F of the EHCP wouldn’t go into that much detail but for example could include learning to understanding triggers and staying safe.

Amendments will be based on evidence. If you don’t have independent evidence to base amendments on and the LA isn’t being co-operative, have you asked SENDIST to direct the LA to seek advice and information about those points?

Another question - there are identified needs around taking care of herself relating to autism eg if she is ill or injured. The LA say these are not a school issue but should be managed by parents outside of school. Except that there should be strategies for if she is ill or injured when at school. Would these go in section F or G? or are they not detailed in the EHCP but in a separate healthcare plan?

Morning All, I have finally received an updated working document from the LA as tribunal date is in a few weeks. In responding to, and updating, the working document, should I remove proposed amendments that have been rejected, but alternative options have been agreed? The document makes little sense with them in as it looks as though I have asked for amendments that have already been covered! eg i have asked for X to be added. the LA said no. I then asked for Y. the LA said yes. Do I remove X from the working document as I no longer want it?

I am also unimpressed by the response to queries about needs which have no provision attached. The WD notes simply say either "what provision do you want?" or "the Clinical Lead is not sure what to recommend. Do you have any suggestions". I am not sure how to respond to these - if they had done the assessment needed, they would have the answers.

Can anyone talk me through what happens at the tribunal - I have no witnesses, the LA has no witnesses that I am aware of. Presumably I say why I think they are wrong and they say why they think they are right?

@narrowrailroad in case you aren’t aware, you would need to fund the pre-action letter, but JR proceedings themselves would be in DC’s name, so DC can be eligible for legal aid in their own right. I appreciate the pre-action letter may still be out of reach; if that is the case, have you spoken to SOSSEN?

I think legal action is the only thing the LEA would listen to but we don't qualify for legal aid so would have to fund ourselves, this isn't really an option as we've already had to cut working hours and pay for tuition and mental health support because the LEA are refusing to fund anything.

It depends on your MP. Many MPs are useless with SEN issues. No reason you can’t contact them whilst trying to find someone with the capacity to take on the case for a pre-action letter. It can take perseverance to find someone. There will be an upcoming spike in people looking too when LAs miss the post 16 phase transfer deadline tomorrow.

Okay. Got it thank you. A clinician has suggested going to the MP and they have given me the number of a senior person brought in to sort out county SEN provision. I think they are cross too!!! Would this help at all? Or straight in with the solicitors?

Unless you know what you are doing, you should not write your own. Even if you write your own, some LAs will ignore because they know you will need to find someone with capacity to take your case. I can write my own. I don’t because my LA laughs and says good luck.

I would find a firm with a legal aid contract who has capacity to take your case for a pre-action letter. The pre-action letter would be in your name, so legal aid is only possible if you are eligible for legal aid, but some LAs are sometimes ignoring pre-action letters that aren’t written by firms with legal aid contracts because they know if they ignore parents will still have to find a firm with capacity to take the case further. It kicks the can down the road. JR proceedings themselves are in DC’s name so they can be eligible for legal aid in their own right. It is a matter of perseverance. You could try Lawstop, Simpson Millar or Leigh Day. Even if they say no capacity today it doesn’t mean there won’t be by the end of the week.

Okay would you please indicate the best way to kick this off? I heard sossen had a backlog. I’ve checked out their website. I’ve not had the energy to get further than that as we have a lot of medical apts right now. Would you say this is the best place to start, or can I write my own?

As LAs have been shown time and again, lack of staffing and resources are not lawful excuses for breaching the timescales.

You need a pre-action letter covering both s19 provison and the breach of timescales. If the LA ignore the pre-action letter, JR proceedings will resolve the situation.

Just checking in with a related question.

My DC EHCNA is delayed. I’ve chased it as I know it’s related to ed psyc backlog but they haven’t lined up any other apts and it has been 4 months since decision to assess.

Alongside this we’ve seen a decline in health and impact to attendance. DC is year 10. We’ve had a sec 19 push back. Something about getting the school to make provision. School are also pushing back as duty is on LA. We have a meeting of minds on this.

In the meantime trying to safety-net health and education with both on the decline whilst poking LA.

LA keep kicking can down the road looking for every possible excuse not to give interim provision.

I am looking at SOSSEN now, and I am being very direct with LA and meticulously documenting everything. Sounds like there’s just no resources???

Any advice welcome. I don’t mind going down the legal route but I am spread thinly with all of this, I don’t want to waste my efforts if LA are ignoring legal letters even if I manage to get one to them (I hear this is happening) do I have any other leverage?

The school would be reconsulted. However, unless it is a wholly independent school, you don’t need an offer of a place. For schools that are not wholly independent, the school being oversubscribed isn’t a barrier to it being named. ‘Full’ isn’t defined in law and, on its own, being ‘full’ is not enough of a reason. The LA has to prove the school is so full placing DC there would be incompatible with the provision of efficient education for others or efficient use of resources. The bar to prove this is higher than LAs and many schools admit. It has to be something tangible and specific and is more than an “adverse effect”, “impact on” or “prejudicial to”.

Sometimes LAs settle I to encourage parents to settle B&F. Sometimes they settle because the original reason to refuse was to see if the parents would appeal and when they do, they agree to the school.

Some parents decide they have got this far, so they might as well continue with the appeal. Others think they have the school place, so they will settle the appeal and work on improving the EHCP at a later date, especially if it is only a few sentences. How much those few sentences are required? Are you sure it is only a few sentences? As long as the required provision is in F, don’t worry too much about the wording being under the wrong outcome much.

Thank you so much. I've been finding the appeals process so stressful and honestly wouldn't know where I'd be without the help and support from here.

The LA have said that if I amend sections b and f the school would need to be reconsulted and the place could be lost (it's a very small oversubscribed school).

I don't understand why they've secured this space with the ehcp when the sections b and f under the appeal.

There's a few sentences missing from a report and a section under the wrong outcome. It's all a bit of a mess...

I don't know what's right to do 😓

You don’t need to do anything at this point. Although I would contact the school to discuss transition, they may not talk to you until they hear from the LA. If you are appealing B&F as well, the appeal will continue even if section I is settled. You and the LA can work on resolving the outstanding disputed content via the working document process. This will continue up to the hearing or until the case is settled by consent (or you withdraw the appeal - don’t do that). You don’t need a consent order. The appeal is still ongoing. If the LA concedes the whole appeal, the LA will initiate completing the SEND46 which they and you complete and send to SENDIST, but you don’t need to do that if B&F are outstanding.

If the LA issue another finalised EHCP, there is some inconsistency as to how this is being handled. SENDIST is making some who have amended versions submit fresh appeals because it supersedes the EHCP subject to appeal. Then consolidate the appeals. Yet other times, SENDIST is allowing the exact same circumstances to be incorporated in to the existing appeal without a new SEND35 being submitted.

Thank you so much.

I've received an email saying that the LA concede and will name the school in Section I within 5 weeks.

As I also appealed sections B and F, will they continue to work on agreeing these sections until their 5 week deadline?

Do I need a consent order or partial consent order? Is this something I need to do or the LA? / where can I find this form? Or is it an email?

Sorry for the many questions

When your appeal is registered, you will get a date for the final evidence deadline. You don’t need to submit a SEND7 to submit evidence before the deadline. You can email SENDIST and the LA (although some are now being told they don't need to email SENDIST if before the final evidence deadline. When you get them, read your case directions. I have reservations about this change.) If you needed to submit late evidence or request the evidence deadline is moved, then you would need to go down the SEND7 route.

When the LA respond to your appeal, they should include certain information, including some information from and about your preferred placement. If they don’t, you can raise the matter.

After the LA’s response, if the LA is refusing to consult with your preferred school, you can ask SENDIST to Order the LA to consult.

If the school is a maintained school in another LA, they must consult the LA as well as the school.

Rather than a SEND7 just for the correspondence, I would make SARs for all data. However, I would wait until the LA has responded to the appeal so you capture any data generated as part of their response.

Hello,

Please can I get some advice regarding a Phase-Transfer appeal (B,F and I).

It has come to light (after appealing) that the LA has named a school prior to consulting with them (they have tried to rectify this by now consulting but the named school have said and listed why they cannot meet needs.)

The LA mislead me by informing me that they are in discussions with our preferred school (who have said they can meet needs); however it has become apparent after requesting the evidence of this, that they are in talks with the school's local authority (it is out of Borough) to get a witness statement and are not in talks with the school. I feel annoyed that they have been misleading, and under the impression that they have to be honest and transparent during the appeal? I sent off a SEND7 form requesting the correspondence (they did not object) but also did not provide this evidence when I requested it. Not sure if I should have done this? I have been told conflicting information :(

Once I get the LA's response to the appeal etc I need to update my evidence with information that has now come to light - How do I go about doing this? - Is this a SEND7 form with all the evidence? or do I just provide the updated evidence etc to the Tribunal and LA?

Thank you in advance!

Thanks @KeepItSpinning I think I am just going to be chewing my fingernails down to the bone until DC actually starts there!

Until the finalised EHCP is issued with the school named, it isn’t guaranteed. The LA may say one thing and do another regardless of panels (which may not actually exist or not exist n the way you think they do) and funding decisions. The LA wouldn’t need to appeal. They just make a different decision.

It sounds like the LA is well over time. If that’s true, I would be chasing.

I don't know whether to celebrate because we have won something or whether I need to start arming for the next fight - I have spent so long fighting that I honestly can't tell whether this is the end of the fight.

LA finally agreed to assess DC last year but then dragged its heels for ages not doing so. We saw a final draft EHCP that was sent to 2 mainstream schools and a special school (our preferred option) back in February to consult on whether they could meet needs. One of the mainstream schools said they couldn't meet needs, the other said they could (but I have visited them before and they definitely couldn't) and the special school said they could and offered a place. Because a mainstream school said they could meet needs, it had to go to Panel and I was allowed to send a written statement about why the mainstream school wouldn't be able to meet needs, and I have now heard back that the Panel agree with me and they have said that the special school should be the one named on the EHCP.

The LA Officer dealing with our case says that it now has to wait for funding to be confirmed and this is where I am seeking either reassurance or warning of what might still go wrong - can the LA refuse funding now? Can they appeal the Panel's ruling? Have we won or is there more fighting to do?

Thank you both. That's extremely helpful and I've used the IPSEA letter.💐

@Peggyblue IPSEA has a model letter you can send to the LA to request they seek advice and information from professionals during the NA.

Sometimes segments will be lifted word for word. Sometimes it won’t be. EHCPs must be reviewed annually. Section A written now does t have to be the section A in the EHCP when DD is in her 20s. MH needs should be in B. Be careful that they aren’t all in A and with needs not accurately recorded in B.

Hello, please can I join, as a newcomer to the complete shitshow that is EHC support?!
My LA have agreed to an EHC needs assessment, whoopee, and I'm filling in the parent views section. It says that the content will be included in section A of any Ehcp that's ultimately issued. Does anyone know if the information will be lifted verbatim?
I want to include as much as possible about DD's mental health issues etc, but wary that (if we ever do get an EHCP) it stays with her until 25, and she may not want her self harm and suicide attempts as a 13yo on the first section.

This is probably the least important thing for me to worry about, but for some reason it's really upsetting me.

And another question... I know the LA has to consult professionals I reasonably ask to be consulted. How do I ask? There doesn't seem to be a place on the form.

Sorry, I feel like these are probably stupid questions. It's so upsetting and overwhelming to be laying out everything that has gone so wrong for her and everything she can't manage. I'd be very grateful for any advice at all. Thank you.

@SENDMeHelp I would avoid saying you are going to home educate. The LA is likely to pounce on the wording and take it to mean elective home education even if that isn’t what you mean.