Is it worth appealing a Refusal to Assess for a Statutory Assessment... really confused

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I hope someone can advise. I applied for a Statutory Assessment for 5 year old DS who is in 2nd year Reception in a MS School and been told on the phone that they've decided not to assess due to lack of evidence. We believe he's on the Autistic Spectrum but thanks to Covid, he's never seen a Paediatrician and only had a 30 min online assessment with SALT. His first 3 months in school was hard before lockdown. He has communication issues, no interaction with peers and his behaviour at home was bad, he behaved at school mostly. After 6 months in lockdown, he returned to school and due to another boy in the class having a statement, he benefited from this. He shared his full time TA, had a good teacher and his behaviour improved drastically. He progressed with some of the goals on the School Action Plus, not drastically but enough for the school to paint a very positive picture.

As far as evidence is concerned, I have no reviews for his individual learning plans as it took so long to set them up between lockdowns that they were only finalised 5 weeks before I applied for a SA. He had already been seen by an Educational Psychologist (school requested this) who wrote that he's behind in all areas and that he does a lot of echolalia but he can also voice his needs and has settled into class beautifully.

His teacher wrote on his individual plan that he needs full time TA support but that strategies that she is using is showing results and that he's a pleasure to have in the class.

The SENCO doesn't understand why I'm going for SA when he's got all the support already but she also noted that if the other SEN boy leaves, and another child in the school has a statement, his TA will be reallocated.

I have no evidence, no diagnosis and according to everyone, he's just adorable. He also doesn't communicate with kids, uses learnt phrases rather than natural conversation, struggles with comprehension, struggles to understand instructions and is constantly distracted.

Is there any point appealing?

It is always worth appealing, you have nothing to lose. The majority of refusal to assess appeals are upheld.

Can you afford an independent EP assessment? If you make a SAR to the school you may be able to collect evidence from that. Have you got a report from the SALT.

As a side note if the other child's statement specifies 1:1 and the school aren't providing that the other parents can enforce the provision as 1:1 must be provided.

I have the SALT report but it barely mentions the issues such as the scripting or lack of understanding. The other issue I have is the 6 week summer break with no access to school to discuss this or ask for evidence in this time. The LA told me their decision 2 days before break up and I still haven't had the official letter from them. All I've been offered by the LA is a meeting mid Sep to bring suggestions to the table...

Write to the LA insisting on written confirmation now otherwise you will be forced to begin Judicial Review proceedings as they are frustrating your right of appeal.

Don't accept the meeting, it is the LA's way of fobbing you off and it will conveniently be held after the appeal deadline. Don't bother with mediation either. If the LA are to going to concede they will do so regardless of whether you actively partake in mediation or just get the certificate.

Would the LA do a Statutory Assessment on a child with no diagnosis or where the learner plans haven't been tried for a period of time. I was advised by the school that the authority want at least 2 reviews that show the Individual Learning plans aren't working or is that more fobbing off? I'm annoyed as we were going through hell with DS between the ages of 4 and 5 where he probably would have had a better chance then as he wasn't toilet trained, was in his own world, he wouldn't interact with any kids and he only scripted. We were discouraged from applying then by the school and privately paid medical professionals due to others worse than him not qualifying. Now he's mastered the toilet mostly and he's using more original words to communicate, with adults only though. He will also smile at kids. School have written this down as progress and their methods are clearly working.

Is the 8 weeks appealing process a case of you must put in your appeal within that 8 weeks or everything must be completed within 8 weeks?

www.ipsea.org.uk/

I was told they automatically turn down most requests for assessment. I was turned down...it is very very much part of jumping through hoops, gate keeping.

I went to mediation, with further evidence or the same evidence presented more forcefully , if you want to call it that. It then was supposed to go to Tribunal against refusal to assess and they hung on for a bit longer then caved in. Its a case of who blinks first I'm sorry to say. They don't want to go to Tribunal but most people give up at the first stage so don't realise this.

IPSEA states the law on assessment that the only test is...I have reason to believe my child has a special educational need...no other test is required....your evidence of this is the help from TA and the echolia, communication difficulty ...they are meant to be assessing him not YOU, whether he has seen a speech therapist or had a diagnosis is immaterial.

I presume OP is in Wales given she mentions statements and reception, so IPSEA won't be able to help, but SNAPCymru will.

You don't need a diagnosis, a statement of SEN should be needs based, not diagnosis led. The threshold for a statutory assessment is probably has SEN, and needs or probably needs the LA to maintain a statement of SEN. You don't need to have undergone 2 assess/plan/do/review cycles. That's a myth some schools and LAs like to perpetuate. Although it is easier if the school have already tried to put provision in place.

From receiving written notification of the LA's refusal to assess you have 2 months to submit your appeal. The wait for a hearing is usually a few months. In Wales you can take part in disagreement resolution at the same time as appealing.

Even in England IPSEA states the law on assessment that the only test is...I have reason to believe my child has a special educational need...no other test is required.... isn't quite accurate. The threshold is a) has or may have SEN, and b) may need SEN provision to be made via an EHCP. See here. It is usually b that is harder to evidence. In England most experts advise just getting the mediation certificate, LAs use mediation as a delaying tactic and if they are going to concede they will do so regardless of whether you actively partake in mediation or not.

Yes you should appeal, I went down the mediation route but also got our nursery to re-submit with more evidence (well the same evidence but written in a different format which was more pleasing to the LA), the day before mediation they relented. I also got my local MP and councillor involved, and emailed everyone and their dog at the LA so that my DS was on their radar. I was told for our application that we had not demonstrated that he was not progressing which is why they refused. I would get to the route reason that they have refused and then make sure that you provide the evidence needed. I believe that unless the application is very well written without holes the standard reply is refusal.

You need to prove that there is or may be SEN and that specialist provision is or might be needed...if you look at the SEN Code of practice (link below) chapter 9 it makes clear what the LA must do, in particular 9.14. The fact that he is getting 1:2 adult support is proof he needs specialist provision but this all needs to be detailed. If the school won't do that then you should (lots of examples of when he is completing maths work he needs adult support in at least 1:2 or he...., he requires adult support to toilet or he...ect) - the more examples the better. Perhaps the school don't want to detail all that as they should not be using the funding for one child to help another.

As a side note, the fact that he is getting to share someone's adult support is good for your son but that child has the funding for the adult support for them only and perhaps the fact that the adult support is being shared is negatively affecting the development of that child, I am not saying that to make you feel bad I am saying that to try to get you to fight for the support that your child needs. As a mum of a boy that's just about to start reception and having gone through an horrendous few months fighting the LA it is really annoying that the school are already telling me that it isn't a 1:1 ratio that my DS will get as there are other kids in the class that require support ( this is not correct/legal but will have that fight depending on what actually happens) - this is of course not the child's fault but I wish that the nurseries/parents had a duty of care to their child to sort out the correct support. Please don't be fobbed off, if your child needs the support you have to fight for it.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachmentdata/file/398815/SENDDCodeoffPracticeJanuaryy_2015.pdf

Thanks for your replies. I was told the TA was a 1 to 3 children so the other child was always expected to share. I've already contacted SNAP Cymru and even though their advice was good I was still divided if my son would qualify for a SA. Anyway, I will get my boxing gloves on and see what happens.

Good luck!

Maybe that is the case, i only know my own experience and know it's a certain number of hours my DS is supposed to have so presumed that was the case for all. I'm in England though so def could be different.

Annie that SENCOP doesn't apply in Wales.

Also, you don't need to prove that specialist provision is or might be needed. There are many pupils with EHCPs and Statements of SEN in MS. The only lawful threshold is what I posted above.

Unfortunately, many EHCPs/Statements aren't worth the paper they are written on. It depends on how section F/part 3 is worded as to whether the school are acting unlawfully with regard to sharing the TA. Sadly many EHCPs and Statements are vague with woolly wording such as "access to", "would benefit from" or "or equivalent". As a result the child isn't legally entitled to 1:1 and parents don't realise it isn't enforceable until 1:1 isn't provided and they can't do anything about it.

Agg yes my wording wasn't correct but was getting at the same test threshold as you @10brokengreenbottles, I meant in MS.

Interested to hear that the 1:1 is not legally enforceable- my DS EHCP details activities which are to be done every day, the time spent, by who and how many in a group or if 1:1...maybe I lucked out (hopefully) and got a well written EHCP or maybe (probably) I'm missing something and there are holes which means it isn't enforceable

1:1 is only enforceable if section F is detailed, specific and quantified. If the wording is vague and woolly, as it often is, you can not enforce it. Generally, unless forced, LAs don't like specifying and quantifiging section F because it costs them more.

Just a quick update... I sent the LA a new report I received last week regarding my son's areas of concern which didn't say anything new. I appealed the Refusal to Assess a few days later. I had the confirmation from the Tribunal sent via email on Tuesday at 2pm to say that the appeal had been logged. By Wednesday 1pm, the Local Authority phoned to say, based on new evidence received, they would assess after all. First hurdle cleared. Thank you all for that push I needed to do this.

Brilliant news. LA's often need to see parents are serious then they concede.

If the LA believe that you will go to tribunal they will usually agree to assess. Also if you want expensive provision don’t let on.

Has the LA written to the tribunal to tell them that? If not, you really need to push them because the timetable for the assessment process doesn't start until the tribunal has received notification that the LA is conceding.