EHCP support thread no. 6

I've just sent:

Dear all,

Please may I clarify that this is not a parental request (as ticked on the SEND7) as I previously submitted the majority of this evidence before the extended final evidence deadline (midday on 22 May). My views have not been sought.

Furthermore, I believe the deadline for case review forms and the evidence bundle remains this Friday (5 June) at midday.

Kind regards,

It just feels like a time-wasting exercise? The SENCO statement and the private reports are very strong in my favour. The attendance data shows an improvement on this year (but which I have not denied) and the provision plan shows some things in place, but the SENCO has asked to meet to go through what else they can do as a result of the EP report.

If the LA don't send the tribunal bundle on Friday, can I submit a SEND7 asking for them to be barred?! (I know though that @KeepItSpinning you've said that they can be easily reinstated - the whole process is just a mockery and shambles!!). (I know we all know that!)

I would just point out you have not made the request, the LA has not sought your views and which evidence has already been submitted, but that you do not object to the inclusion of other evidence the LA has now submitted.

If I put something like:

"Please can I clarify that this is not a parental request for supplementary evidence, my views have not been sought as to the admission of late evidence and I have already submitted the majority of this evidence prior to the final evidence deadline. In addition, the deadline for case review forms and the tribunal bundle is this Friday."

Or do I just go back to the LA with this?

Hi all, so I have just been copied into an email from the LA Tribunal Officer to SENDIST with a SEND7 and "supplementary evidence". (Our final evidence deadline was last Friday).

This evidence includes attendance history from start of this academic year (with all my emails and notes of arrival times), and a copy of DD's internal provision plan.

It also includes the SENCO's statement, the private EP report and OT report (all of which I have already sent to SENDIST!).

There are barely any details on the SEND7, they said they asked me for my views today (they haven't and obviously haven't waited five working days for a response), and bizarrely they've ticked the box that says it's a parental request?!

What on earth are they playing at and what do I do? Do I point this all out in a response to both them and SENDIST?

The deadline for both case review forms AND the tribunal bundle is this Friday. I have already sent in my case review form.

So in December the appeal concluded by consent and the has LA issued the finalised amended EHCP following that?

Section F should set out the EOTIS package. It isn’t enough for it to just say EOTIS will be provided. The actual content of the package needs to be included in F. Is it? The answer to that is really important to know what you do next.

F needs to be detailed, specified and quantified. That includes stating who will provide it. For example, ‘key adult’ is too vague. Other than the issue with who will provide it, is the rest detailed, specified and quantified? This is also a really important to know.

There should be a section J. All EHCPs must have sections A-K. Section J might not have a personal budget set out in it, but the section should still be there.

Ok, I am being confusing. Mainly as I find it all confusing! Section F names eotis, the blank section is "who will provide this". It also says that provision should start in the home to build trust with a key adult, with a hope that this leads to more structured environment in future.

Section I is blank and there is no section J.

The hearing was to be in June and was for the wording on the ehcp (the original was garbage) and for eotis provision. They agreed to suitable changes and eotis, so we agreed the matter was concluded.

I agree they are fobbing us off at every turn, but the process is so alien to us that we don't necessarily know what is wrong, when and what to do about it. With our less complex to educate child, the ehcp was issued and our preference was the closest suitable state special school, which was easily agreed.

@ThaneOfGlamis if section F is currently blank, you presumably still have a live appeal and the appeal has not been concluded?

So the LA has agreed to leave section I blank for EOTIS as per section 61 of the Children and Families Act 2014. But they have not agreed to the content of the EOTIS package and there is still an outstanding dispute over B&F?

You need to focus on the appeal. That is the route to ensuring the EHCP is good. This will mean the EOTIS package is good. Then you can enforce it if it isn’t provided.

When is your hearing? If it isn’t imminent, have you requested an expedited hearing?

At the moment, if F is blank, you can’t enforce provision under section 42 of the Children and Families Act 2014.

Providers cannot be named in section F. They can be included in section J.

The LGO won’t deal with anything related to the Tribunal. Even if they would, the LGO does not consider a month as a reasonable time frame for waiting for a reply.

In the meantime, if the LA is refusing to provide provision under section 19 of the Education Act 1996, you could look at a pre-action letter for that. While the LA’s s19 duty is separate to the LA’s duty under section 42 of the Children and Families Act 2014 to provide the provision in the EHCP, it really depends on when your hearing is as to whether or not it is worth a pre-action letter for s19 provision.

They couldn't even find someone for section 19

This really was fobbing you off rather than them genuinely being unable to provide s19 provision.

@KeepItSpinning section F is currently blank. Does that mean we can't do a pre action letter? Could we go down that route for section 19, in the absence of eotis, instead?

No educator has been named and we have not been able to discuss whether they will fund a person budget, or name their own providers. We have sourced suitable providers, so would prefer a personal budget. They couldn't even find someone for section 19, so no trust that they could run the whole thing.

We complained just over a month ago. It was acknowledged as received, but no response since.

@ThaneOfGlamis do you have the provision in the EHCP? I’m not clear from your post whether you had agreement to leave section I blank for EOTIS in December but have had to appeal the content or if the appeal concluded in December?

The content of the EOTIS package should be set out in F of the EHCP. If it is but isn’t being provided and chasing hasn’t worked, you need a pre-action letter. Then, if that doesn’t work, JR proceedings will. However, this is only possible if the provision is detailed, specified and quantified in F. If it isn’t, that needs resolving.

Complaining and then going to the LGO isn’t a suitable remedy because it takes too long. Although so you are aware in case you wanted to go down that route, if the LA fails to respond to your complaint, you can still go to the LGO.

and 7 months of the council not finding anyone suitable for section 19 provision

The LA was fobbing you off with this. Section 19 provision can be enforced in the same way as provision in the EHCP can be.

Please help with what next steps we can take. Child was granted eotis in December, after a year of consultation, where no school was found, and 7 months of the council not finding anyone suitable for section 19 provision. Despite agreeing eotis, we still don't have any provision 6 months later! It took a while to get the necessary ehcp wording changed and they messed up tribunal submissions 2 times.

They are now completely ignoring emails asking when we will get a package and the complaint we raised is also going unanswered. I presume that ombudsman would be the next stage, but doubt we can do that without a complaint response. Is there anything else we can do? Have already sought help from our MP, but they seem disinterested.

@SpaceInvader321 the LA has 4 weeks from the AR meeting to inform you if they are proposing to amend and, if they are, send the amendment notice.

If you haven’t already shared your views, do that now.

When you say you have a proposal of provision and costing, it can help to make it into a table. Remember the golden thread that runs through EHCPs. Needs from B and what needs need to be included in B even if they aren’t there now (it can help to break it down into the different areas of needs), provision from F or what provision needs to be included F even if it isn’t there now (and any provision that is not in F but is essential for the delivery of the provision in F), provider, cost (one-off/weekly/monthly/termly/yearly), outcome or outcome that isn’t in E but needs to be. If you will be requesting a PB, you can also add a column for how each part of the PB will be paid (DPs, third party arrangements, commissioned directly). Don’t worry if you aren’t sure about all the details yet. It can help to add references to the evidence, particularly for the bits that aren’t in B/E/F but need to be.

It can also help to make a mock timetable if you haven’t already. It doesn’t have to be 100% accurate. It doesn’t even have to be what will ultimately happen. If provision needs to be child-led/self-directed/flexible, that can still be accommodated in a timetable. If provision needs to be built up, you can still make a timetable. This enables you to show it is a considered, organised, reasonable and, importantly, viable plan. You can add references to the EHCP and evidence to support each provision on the timetable.

This helps so everyone can see the needs, what the provision will look like, how the provision will meet those needs, that there is some kind of future plan going forward beyond the past (too many people get bogged down in focusing on the past or in only showing it is inappropriate for provision to be made in a school/college). Similar to how a school has an aims and ethos (and sometimes vision) statement, prospectus and SEN information report.

You aren’t responsible for organising provision and you can’t be forced to do the above, but many parents find it helpful. Many have to appeal to secure a proper EOTAS/EOTIS package and the above can be helpful for an appeal, too.

The school saying they can’t meet needs isn’t quite the same as them saying they are giving notice. Sometimes some will say the former but still be happy to continue to be named. They shouldn’t and it is terrible behaviour placing money ahead of children and young people, but it happens. You should ask if they are formally giving notice.

@KeepItSpinning Yes, the SS is submitting their report from the AR meeting this week and they will say they can't meet needs.

In the AR meeting, they seemed in agreement that a physical school is inappropriate for DS at this time.

Our EP also attended the AR meeting and has written a report with recommendations for EOTAS and a very flexible approach (with the ability for DS to move between providers, set the pace himself, choose GCSE subjects, etc).

We also have a psychiatry report from last year detailing some of the weekly therapeutic support DS requires -- though I'm not sure it's specific enough (eg, "Weekly individual therapy (psychological or creative) with measurable outcomes").

I know the LA will have two weeks to notify us of their decision. I'd like them to know what our preferred provision is before they redraft the EHCP (if they agree to amend).

I've drafted a proposal of provision and costings, so was wondering if we should write to the LA after the SS submits their paperwork, to make our argument for EOTAS and also to submit our proposal for the provision we think would be appropriate.

@SpaceInvader321 as part of the AR process, you should still present your/DS’s views. You can do this before, during and after the AR meeting. Reference your evidence when you do this.

Following the AR meeting, if the LA proposes to amend, you will be sent the Notice of Amendment (Amendment Notice/draft/whatever you want to call it). You can reply to this to comment on the proposed amendments. Since the content of the EOTAS/EOTIS package should be in F, this will include commenting on the content of the EOTAS/EOTIS package you are proposing. At this point, you would normally state your preferred placement but you can state you are seeking EOTAS provision under section 61 of the Children and Families Act 2014 because it is inappropriate for provision to be made in a school or college therefore section I should be left blank. Make sure your response covers why it is inappropriate. Again, referencing the evidence.

Is the SS formally giving notice?

@KeepItSpinning Thanks for info re EOTAS coordinators. Remote would be fine (DS does not want in-person interactions ATM, and DH and I are fine working with someone on a remote basis).

If our SS is saying they can't meet needs and that they think no school would be appropriate for DS, and we have an EP report recommending EOTAS, do we also need to write to the LA ourselves to formally request EOTAS?

The number of co-ordinator hours varies massively. Some have none, which shouldn’t happen but does all too often. Some have 1hr per half-term which is nowhere enough for any package IMO, right up to 7+hrs pw year round. Some have TTO, some 42, 45 or 48 weeks pa, and some for 52 weeks. How many hours you need depends on the co-ordinator’s role (not all co-ordinator roles are the same), the package, and the child’s needs.

The problem with termly hours is how it is worded. Otherwise you may find the LA provides all the hours in the first week or last week of the term and none for the rest of the term.

The cost depends on the role and the type of person who is to fulfil it which will depend on the wording in F. I have seen anything from NMW for more of an admin position undertaken by an admin assistant or LSA/TA to £150p/h for a qualified professional e.g. specialist teacher or EP. I have also seen LA’s claim one of their caseworkers can do the job. Worded correctly, they absolutely cannot.

You also need to think about whether it needs to be in-person or if remote will work.

We have a specialist teacher who undertakes the role for DS1&3. DS1 has 6hrs pw for 52 weeks. DS3 has 4hrs pw for 52 weeks. Neither are enough. We have live appeals for them at the moment, part of which includes further co-ordinator hours. Termly MDTs (e.g. arranging the meetings, summary report writing beforehand, prep for meetings, attendance at and chairing of the meeting, admin afterwards.), AR (e.g. admin and prep beforehand, arranging AR meeting, updated advice and information, attendance at and chairing of the meeting, report writing and admin afterwards.) and training are accounted for separately. There is also a separate pot of hours any professionals can use for advice from other professionals within the team. Sometimes the co-ordinator is involved in these hours.

You can request a PB and the LA must identify a PB unless the funding cannot be disaggregated because it would negatively affect LA services or it is an inefficient use of resources. PBs can be paid in different ways. Direct payments whereby you are given monies to organise provision yourself. LA or school controlled funds where they commission support directly. Third party arrangements where a third party is given the funds to manage on your behalf. A mixture of 2 or 3 of the above. You can request DPs and the LA should comply unless they believe you aren’t capable of managing the monies, you would use the funds inappropriately, it would negatively affect other LA services or it is an inefficient use of resources. A PB doesn’t automatically mean more flexibility. It will depend on what is agreed and the wording in F (and the DPA if you have DPs).

Our SS will be submitting their AR paperwork to the LA this week and saying they cannot meet DS(15yrs)'s needs. Their report and our private EP's report will recommend EOTAS.

I'm putting together a proposal that will cover flexible online learning and therapeutic provision as recommended by the EP. She also included an EOTAS coordinator in her report.

How much would be reasonable to budget for an EOTAS coordinator over a school year?

I've seen some suggestions of 5 hours per week and rates as high as £100/hr, which for a full school year would be over £11k and probably well beyond what we would need. Would a fixed number of hours per term be a better approach?

I imagine we'll need most of the support at the start and at review points, although DS has been out of school for 18 months and needs a gentle return and the ability to move between providers if one isn't working, so there might be a bit of movement as we try different options.

The EP also recommended we manage the package through a PB to ensure we have the flexibility DS needs. This isn't in her report but I'm guessing it's a negotiation to be had with the LA rather than something within the EP's remit.

If DS is to not attend the named school, they should not be named.

When you say the AP is named, where in the EHCP is it named? Is this an AP that is a registered alternative provision school? Most aren’t. And if if is not, it should not be named in section I. The provision should be set out in F (is it?) but the specific provider must not be named in section F either. This is to protect the child as much as anything else. It can be in J.

I would be careful with the term flexi-schooling. LAs and schools usually associate the term flexi-schooling with parents making the provision for the time DC don’t attend school and it being at the discretion of the HT. You do not want to confuse matters.

What about other therapies? SALT alone is not enough.

Who will make the decisions each term? The EHCP shouldn’t leave the decision of future provision to a termly review. How will it be enforceable? How will you be able to appeal if you don’t agree with the decision? Provision shouldn’t be left to future assessment. Termly reviews e.g. MDTs can be included in EHCPs, but not like your LA is suggesting. It shouldn’t be leaving the question of what provision will be provided in the future to the termly reviews.

You can help provision that is flexible and responsive to changing needs including in F.

So it’s actually not EOTAS, it’s still flexi schooling with him on roll at his original school as well as the (named) AP. SALT is specified which the AP is providing. The idea is termly reviews with the school as to when/how they start to provide additional support.

I do get what you’re saying, I guess I don’t know exactly what I’m appealing at the moment? My current thinking is that if the AP goes well it will help DS transfer to 14-16 college at the time which I think will suit him better, and the AP can support with.

how would appealing help make it more flexible to his changing needs?

@LittlePickleHead you may think that is fine currently, but what about in 10 months’ time (or even longer with the appeal timescales)? Some make the mistake of only looking at now when you need to consider the future. Otherwise what happens if DS is ready for more in 10 months but you can’t capitalise on it and need to request an early review/wait for the AR, then maybe an appeal?

Plus, you say there are still issues with the EHCP not being specific. If the provision isn’t detailed, specified and quantified in F, it may not be provided and you can’t enforce it.

Also, on its own 2.5 days at an AP is not a proper EOTAS package. It is a bit of AP. A proper EOTAS/EOTIS packages contains so much more. For example, where are the therapies? Even if DS cannot engage with direct provision right now, you need indirect provision.

Personally, I wouldn’t bother with mediation, especially for an EOTAS/EOTIS package. I would just get the certificate and submit to SENDIST.

Just hopping back on with an update, which I assume is non typical but also positive (I think?!).

after the mistake with the finalised EHCP not containing any of the in person elements DS currently receives I went back and got HOP to agree to continue mentoring and youth club until their was an alternative, and our case worker agreed to get full costs and go back to panel.

in the meantime I spoke to another parent whose son had been at a local AP. At the time of finding a provision we didn’t consider it as we couldn’t even get him through the door, but he’s made so much progress with HOP we decided to have a look.

he actually went, spoke to the (lovely) head teachers, and said he liked it. Long story short, I asked our case worker to put to panel to formally consult, they agreed, he’s been offered and place and now his EHCP is updated with this provision.

it’s only 2.5 days a week but that is fine for him currently.

i still have the mediation in the diary, and there are still some issues with the EHCP in terms of being non specific, but given I’m happy with where he is now placed in not sure it’s worth going through that?

@aurpod1980 you could look at Jemma Levy, Vivienne Clifford, Craig Tribe, Nick Palmer, Amanda Furness, Stephanie Warman, Patsy Kershaw, Amelia Mackendrick, Peter Parkhouse, Melanie Hartgill, Katie Hinds, Phillipa Grace, Lyndsey Price.

Some will travel. Some won’t. I have tried to include people in a range of places.

Demand is high so it can take perseverance.

@AprilFlowersMay I’m sorry the Tribunal outcome wasn’t favourable. You need someone who has the capacity to look over the judgement and wider case to see if you have grounds to challenge the Order. Impossible to say without knowing/seeing more about the case, but it sounds like you may have.

@Namechange857 my read is that they are considering going back on their initial decision as they think they won't win. Keep us posted.

I am just so frustrated. We've just had the judgement from the tribunal regarding DD's application for an ECHNA. They say that there is no need for an assessment because her needs are clear (she has two disabilities: chronic fatigue syndrome and ASD, both diagnosed) which are affecting her ability to attend school regularly, and is currently attending school for one hour a day on a reduced timetable. She does not have learning needs, she has disability needs. Agree with all of that.

They also say that school are currently meeting that need by allowing DD to have a reduced timetable. I also agree with that.

She is currently on roll at school 6th form, allegedly attending for three A'levels: in practice she is going in just for one subject and is self-teaching / being tutored for the other two at home (because we don't want her to unnecessarily fall behind because she is super smart and academically able, if needing to learn lying down). School have said that they cannot continue doing what we are doing, and are prepared (!) to allow her to attend just for physics but will off-roll her for the other two subjects and won't support with exams at A'level time if she doesn't come in for lessons.

We are not even trying to apply for extra funding at this stage: all we want is for DD to be allowed to attend for the one subject, and for the school to provide the exams at the end of Y13 (so effectively paying for her entry, and be her exam centre).

It can't be that the LA are on their back, given that the LA have said repeatedly and in writing that they understand DD cannot attend school in a normal way, but that the school can meet her educational needs within the normal resources of school.

If school were fighting the LA about that it would be different.

Does anyone have any ideas on what we do next?

Solidarity to all of us: I regularly reflect that in our house we are extremely lucky -- both parents are articulate and willing to engage with all of this and have the energy, capacity and resources to do battle on behalf of our child but OMG it is draining in the extreme. I am so scandalised by how many people are doing battle with a system that is so incredibly draining and frustrating.

Hello can anyone recommend a private EP, we’ve had a refusal to issue

@Leafywool if you need or appeal the EHCP and can’t afford independent assessments, check if you are eligible for legal aid (from your posts, I suspect not but it is worth checking). The legal help system can fund assessments if necessary. If you aren’t eligible for legal aid, have a look at charity funding.

@Namechange857 it will depend on the LA and the individual case. In some situations, the LA’s Tribunal Officer/Dispute Resolution Officer would make the decision. (Don’t rule this out because of how the email is worded, LAs like to hide behind ‘the LA’.) It could also mean the LA’s high cost/complex case panel, senior leaders or their legal team.