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SEN

Here you'll find advice from parents and teachers on special needs education.

Original poster

EHCP TOTAL MESS

7 replies

Ragingoverlife · 01/12/2022 05:31

Please excuse the fact that I'm new to this whole process. I feel almost judged that everyone should know everything.

I need to know where I stand with all my comments on the ehcp draft being completely ignored and what can be done in regards to the EHCP draft (now final as of today)

I know according the SEN CODE OF PRACTICE

That they 'must' do certain things such as having a planning meeting, allowing you to name a school and request personal budget

" During this period, the local
authority MUST make its officers available for a meeting with the child’s parent or the
young person on request if they wish to discuss the content of the draft EHC plan. "

But what happens when they refuse to acknowledge these things?

I emailed the SEN officer :

Requests for planning meetings 3 times. I listed 1 school I wanted them to consult with and made it very clear that his current mainstream cannot meet his needs. I asked for them to consult with an SEN school, (I was told that this had to go to panel before you could name a special school) I made requests for a personal budget to allocate a tutor (his draft states needs specialist teacher to administer a personalised curriculum)

The local authority have ignored everyone of these comments and made my final EHCP a carbon copy of the draft with his current mainstream school listed at the bottom.

I didn't receive the draft for over 4 weeks. I chased and chased and chased for this draft.

They have gone ahead and done their 'legal' time frame of finalising the ehcp. Despite advising they couldn't go forward without my comments (before I'd even received the draft)

All I keep reading is appeal appeal appeal, which I will be doing but why does their legal responsibility to do all these things get ignored and they can do what they want anyway and your only option is appeal?

Can I make them be held accountable for them refusing to adhere to things in the first place - Other than appealing? My main concern is the lack of personal budget apparently this can't be appealed. And only re added with an annual review. I spoke to solicitors today but I'm too stressed to deal with the implications and legal aid assessments to end up owing legal fees for something I can just do myself. The timing also couldn't be any more crap. I'm having a baby in 4 weeks. And will need time to rest recover and not attend a tribunal but I've got no choice.

" During this period, the local
authority must make its officers available for a meeting with the child’s parent or the
young person on request if they wish to discuss the content of the draft EHC plan. "

Thanks for reading .

OP posts:
Original poster
Ragingoverlife · 01/12/2022 05:33

Ignore the part at the bottom at is already included further up. I've been awake since 3am in a state of panic and stress.

OP posts:
JustKeepBuilding · 01/12/2022 16:17

If the LA breached the timescale for sending the draft did you send the IPSEA model letter to the LA?

If the LA didn’t give you 15 days to make written representations as they are legally required to do you could have threatened judicial review. Personally, I wouldn’t worry about the meeting they rarely achieve the outcomes hope for.

Unfortunately, legally, the LA don’t have to agree to make any amendments following your representations. People keep telling you to appeal because that really is the best route of go down to ensure you have an EHCP that meets DC’s needs. Meeting with the LA and negotiating rarely achieves anything. Just get a mediation certificate and submit to SENDIST.

If you are eligible for legal aid it would be a mistake not to try to pursue that avenue as it can fund independent assessments.

You don’t have a right to a PB, you only have a right to request one and the LA must consider it. The specialist teacher provision, as you have written it, is a bit vague and woolly and is most likely to take place within a school. It’s unlikely you would get a PB anyway as you need provision to be watertight when requesting a PB, the LA are likely to say funds can’t be disaggregated due to the adverse impact &/or inefficient use of resources and, if it was a direct payment you wanted, if the provision replaced by a DP takes place at a school the HT has to agree. You can ask the LA to review its decision. If you think it has acted unlawfully you can look at JR, but, from what you have written I think it’s unlikely this is a route you will be able to go down.

You can go through the LAs complaints process and then complain to the LGO but they won’t consider anything with SENDIST’s remit. At the time the LA act unlawfully you can look at judicial review proceedings. However, when considering whether that is a route that is possible you need to consider the SENCOP is not legally binding, rather the LA must “have regard to” it, and there is some mismatch between legislation (for SEN matters mainly CAFA 2014 and SEND Regs 2014) and the SENCOP and, according to case law, legislation overrides the SENCOP. So you can’t pursue JR because the LA haven’t stuck to the SENCOP unless it is also covered by legislation.

Rollingupahill · 01/12/2022 19:18

JustKeepBuilding · 01/12/2022 16:17

If the LA breached the timescale for sending the draft did you send the IPSEA model letter to the LA?

If the LA didn’t give you 15 days to make written representations as they are legally required to do you could have threatened judicial review. Personally, I wouldn’t worry about the meeting they rarely achieve the outcomes hope for.

Unfortunately, legally, the LA don’t have to agree to make any amendments following your representations. People keep telling you to appeal because that really is the best route of go down to ensure you have an EHCP that meets DC’s needs. Meeting with the LA and negotiating rarely achieves anything. Just get a mediation certificate and submit to SENDIST.

If you are eligible for legal aid it would be a mistake not to try to pursue that avenue as it can fund independent assessments.

You don’t have a right to a PB, you only have a right to request one and the LA must consider it. The specialist teacher provision, as you have written it, is a bit vague and woolly and is most likely to take place within a school. It’s unlikely you would get a PB anyway as you need provision to be watertight when requesting a PB, the LA are likely to say funds can’t be disaggregated due to the adverse impact &/or inefficient use of resources and, if it was a direct payment you wanted, if the provision replaced by a DP takes place at a school the HT has to agree. You can ask the LA to review its decision. If you think it has acted unlawfully you can look at JR, but, from what you have written I think it’s unlikely this is a route you will be able to go down.

You can go through the LAs complaints process and then complain to the LGO but they won’t consider anything with SENDIST’s remit. At the time the LA act unlawfully you can look at judicial review proceedings. However, when considering whether that is a route that is possible you need to consider the SENCOP is not legally binding, rather the LA must “have regard to” it, and there is some mismatch between legislation (for SEN matters mainly CAFA 2014 and SEND Regs 2014) and the SENCOP and, according to case law, legislation overrides the SENCOP. So you can’t pursue JR because the LA haven’t stuck to the SENCOP unless it is also covered by legislation.

Really interesting answer thanks. Is there a public source which documents the disreprencies between the statutory guidance and primary/secondary legislation?

JustKeepBuilding · 01/12/2022 19:44

The Noddy guide covers the point about the SENCOP not being binding and quotes the case law for it not overruling legislation. It points out some of the differences e.g. the use of progress when deciding whether an EHCNA is necessary or how an alternative person must bring an appeal for young people without capacity vs someone else can act on their behalf. I’m not aware of anywhere that lists all the differences.

Original poster
Ragingoverlife · 01/12/2022 20:57

Thank you so much, the issue with legal aid is they often still want a contribution per month. Last time they told me I needed to find £400 2 weeks before Christmas. I wouldn't know how many months it would cost and it could still cost loads.

And to be honest my child could have a 1:1 in a special school doing a circus performance for his every whim and I still couldn't guarantee he would engage. He's expressed not to move to a special school (taken him 15 months to settle in mainstream in a way that he's made it suit him.

He does no homework, doesn't attend classes, is in one classroom all day long, doesn't do PE unless it's in his uniform and does minimal work.

I'm going to start the process in January x thanks for your time x

OP posts:
Morph22010 · 01/12/2022 23:45

note that tribunal dates being issued now are for oct next year so there is a long wait. You’d be better to get your form in asap rather than wait till Jan, you can submit evidence at a later date

JustKeepBuilding · 02/12/2022 10:07

I agree with Morph, I know those registering appeals now are waiting around a year. I would submit ASAP.

I still couldn't guarantee he would engage.

I think this needs reframing as could engage. If DC’s needs were met they would be able to engage.

Is your preferred school wholly independent?

You shouldn’t be paying if you are eligible for legal aid and using someone with a legal aid contract.

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