EHCP support thread no. 4

[Phineyj]

We've nearly filled the thread again, so here's a new one. Welcome everyone: newcomers, people stuck in the process; battle-hardened veterans of many years...

Here are links to previous threads:

EHCP support thread - www.mumsnet.com/talk/special_educational_needs/4834986-ehcp-support-thread

EHCP support thread no. 2 - www.mumsnet.com/talk/special_educational_needs/4989146-ehcp-support-thread-no-2

EHCP support thread no. 3 - www.mumsnet.com/talk/special_educational_needs/5077140-ehcp-support-thread-no-3

I'd ask for a meeting myself, and then ring once a week and follow up with an email each time

So I’ve made the amendments.

What the LA will send me next is the final EHCP (I have no doubt this will be wrong).

They can’t change the final EHCP so I’ll need to appeal to SENDIST.

This will take months.

DS will have another review in July. Surely this will come first? Is it better that I chase, chase, chase this one as it will be a KS1 to 2 transfer? With knowledge now of when it should be done?

Or am I appealing the whole thing, and will this affect his Key Stage transfer if it’s in contest?

It worries me that his next school will view me as difficult from the start if they know I’m contesting, and then try to off load me if they can - knowing they they’ve got a woefully inadequate LA who will take a lifetime to sort anything out.

And then I’ve got another legal fight - which I really don’t think I’ve got the knowledge or resilience for….

Morning All. Ok, finally biting the bullet and cracking on with a pre-action protocol letter. Unfortunately the SOS SEN list is closed, so I think I need your recommendations for Solicitors (with expertise and a legal aid contract). Any suggestions appreciated.

@Macramepotholder I would chase now. It is the LA who is responsible for ensuring the provision detailed, specified and quantified in F is provided. This duty is non-delegable. The bulk of the provision should be in place within 5 weeks. Case law BA, R (on the application of) v Nottinghamshire County Council [2021] EWHC 1348.

@NonplasticBertrand you could try: Watkins, Simpson Millar, Leigh Day, Bailey Wright & Co and Watkins and Gunn. It will be a matter of perseverance, I’m afraid. Legal aid for the pre-action letter will only be available if you yourself are eligible for legal aid. If you aren’t, you could also look at Birkett Long, which has swings and roundabout because they are cheaper than some others for the pre-action letter but the LA will be aware they don’t have a legal aid contract so if the pre-action letter doesn’t work you will still have to find someone who does to take on the case.

@RibbyJumper parents appealing to SENDIST isn’t unusual. Schools cannot refuse a child because the parent is appealing. Neither can they offer-roll.

The LA could, in theory, amend the EHCP again, but they are unlikely to if they have ignored your representations.

The AR process runs alongside the appeal process. Given the length of time to hearings now, it is common to have a review mid appeal. The outcome of the AR can feed into the appeal process. There is some inconsistency as to how this is handled at the moment. And is another area where LAs are being allowed to act as they please. Judge Jane McConnell has expressed she doesn’t expect LAs to issue finalised amended EHCPs during appeals. What is happening in practice isn’t consistent; some LAs are issuing amended versions, some are not. Where amended finalised versions have been issued, SENDIST is making some who have amended versions submit fresh appeals because it supersedes the EHCP subject to appeal. Sometimes these are then consolidated, but not always. Yet other times, SENDIST is allowing the exact same circumstances to be incorporated as part of the existing without a fresh appeal being submitted.

Waiting to appeal until after the next review just delays things. You may still have to appeal. It will only be a phase transfer year if it is infant to junior school. Not if in a primary or 3 tier system where first school goes beyond Y2. And whilst the timescales post review must still be adhered to, the phase transfer deadline has a is the 15th Feb.

@NonplasticBertrand

I expect you already know about IPSEA? Suggesting just in case! They should have advice.

@BrightYellowTrain
I’m just not sure what I need to send a pre action letter about at the moment!

1)Time frames - that seems to be in hand? I do think they are now working on it. If I contest this, I can‘t see how it’s going to help. I do think the amended EHCP will be with me soon.

2. Section F - I do think that will be wrong, but I don’t know yet?? So I wait until I get the final amended EHCP? So yes, this needs to be right and I do think this will impact his key stage transfer. I can see how fighting this will help. I can’t start a pre action letter until I know what they state here, and whether they have put in the recommendations?

Key stage transfer at KS2. This is the thing I am gearing up for and the thing I am most concerned about. This will happen in 25/26.

Someone asked me at the weekend what I’m fighting for, what good will it do, am I after compensation.

No - I want what is right for DS!

So if I go to SENDIST over section F, what will be the outcome? That it is written correctly and by who? Someone with more experience? Or will it just get added to another pile and written incorrectly again?

I can see the point in this because it’s vital that his next SENCO has an an accurate picture of what he is like and his needs.

@RibbyJumper IPSEA doesn’t do pre-action letters.

From your posts, it is unlikely JR for breach of s42 of the Children and Families Act is possible. At the minute, section F does not detail, specify and quantify all the provision required. Once the amendments have been finalised, the way to improve this is via SENDIST, not JR. An appeal for B&F will improve the EHCP. The LA must adhere to SENDIST’s Order.

You mention the timescales are in hand, and the LA is working on it. But they have just told you they are not. They are prioritising phase transfer appeals. Right now, I would email the LA threatening JR if they don’t finalise ASAP. Then, if they don’t contact you next week like they said, you have already warned them.

Im so confused! @BrightYellowTrain

I thought the IPSEA template letters were the ‘pre’ bit before taking things further - or that I have to follow a certain protocol.

So SENDIST and JR are different things.

Timescales are JR.

Inadequate section F is SENDIST.

I feel like a flowchart would be helpful!

The LA said they’d have the finalised EHCP to be this week, and the reason for the delay was phase transfers.

@RibbyJumper I thought the IPSEA template letters were the ‘pre’ bit before taking things further - or that I have to follow a certain protocol.

IPSEA’s model letters are a warning shot. They are not pre-action letters. Pre-action protocol letters are formal legal letters before action. You shouldn’t try to do them yourself unless you know what you are doing. Even if you know what you are doing, LAs increasingly pay little attention because the LA knows if they ignore it, the parent still has to find someone with a legal aid contract to take the case on.

So SENDIST and JR are different things.
Timescales are JR.
Inadequate section F is SENDIST.

Yes.

The LA said they’d have the finalised EHCP to be this week, and the reason for the delay was phase transfers.

And this is an excuse. The latest excuse in a list of excuses. Don’t fall for it. Phase transfer deadlines come around at the same time every year. It isn’t a shock to the LA. They are fobbing you off. After the phase transfer deadline, which is the 15th Feb, there may well be a new excuse. Just like a few weeks ago the LA was blaming the school. It is all delaying tactics.

@BrightYellowTrain

Thank you x

Hi, on my portal it shows a decision has been made, how long after this should I expect to hear if they are going to issues a draft ehcp or not?

Hi @BrightYellowTrain , the EP team got back to me and said the following re my request for the quantification of the 1:1 hours as full-time.

The EHCP ‘is an accumulation of the provision outlined by more than just the EP and therefore the EP would not be commenting on hours totalling support as the EP is writing about the provision they have identified as one professional and the frequency and duration of this which contributes to a holistic picture of what is needed’.

In reference to the neighbouring borough quantifying hours in a different way, this is what they wrote: the EP ‘explained the [neighbouring LA] system and explained that the number of hours would be described as ‘no less than 19, 22 or 25’ and this would include SENCO planning time. The funding associated with this would reflect this.’

Do I have a ‘case’ to take this up with the monitoring officer? My concern is that there should be no X system, no Y system depending on your postcode. Not sure what I’m hoping to achieve but something seems amiss. In terms of the 1:1 support being quantified appropriately, I am just hoping the tribunal will consider the other evidence instead as it’s clear the EP will not budge.

@ponche SENDIST will consider all evidence.

Commenting on professional time is within the EP’s remit. Yes, other professionals may (should!) include recommendations about professional time too, but that doesn’t mean the EP can’t comment that full-time 1:1 is needed if it is required.

What a neighbouring LA does or doesn’t do is irrelevant. The SENCOP is clear the LA shouldn’t have blanket policies preventing the EP from commenting on the amount of provision. You have nothing to lose by contacting the MO. However, at this point, it probably won't result in amendment.

When is your hearing?

@BrightYellowTrain thanks for clarifying, I will contact the MO and see what they say. The hearing is mid-June 2025.

Please could you signpost me to where in the SENCOP I can find that information so I can include some quotes. Thanks a lot.

The neighbouring LA thing came up as on the phone the EP team were insisting EPs do not specify 1:1 hours in that way and I said I am aware that some do and gave the example of the neighbouring LA. So I asked if this was a local policy issue.

On the phone the EP also said the 1:1 ‘Velcro’ model is not the best approach and referred to psychometric testing as ‘archaic’ when I mentioned the lack of formal testing in the report. She was saying DD wouldn’t get a 1:1 in a special school and I said some children do and also she might not need one as the environment and ratios would be different.

On the phone the EP also said the 1:1 ‘Velcro’ model is not the best approach

@Ponche ^this misrepresents the research. A common tactic LAs use. A good TA, sufficiently trained and deployed correctly (e.g. not replacing the role of the teacher) can have a positive effect and do not lead to dependence. See Sharples et al. (2015) and Blatchford et al. (2009). Both of which also form the basis of the government’s Deployment of TAs in schools report. Michael Charles wrote a piece on this at some point in the past.

referred to psychometric testing as ‘archaic’ when I mentioned the lack of formal testing in the report.

Only if your aim is to save money and not undertake a comprehensive assessment.

SENCOP 9.51 and 9.69 (section F) will be useful for you to read. It is also helpful to read the guidance for EPs here. Particularly pages 9-14.

Could you afford an independent assessment if you could find someone with availability?

Depending on exactly how the report is written, you could also ask SENDIST to direct the LA to provide evidence as to how much 1:1 is required, but be aware SENDIST doesn’t always agree to do this and it may not result in the amount you think is required.

Cheers, yes am just about to chase (been away for work this week so on slow and silent running, sorry for delayed reply!). SENCO means well I think but everything always takes weeks longer than it should.

DS is still home with EBSA and autistic burnout. We've been in regular communication with the SENCo about the situation and they know DS cannot attend ATM.

In the past two weeks, we've suddenly received multiple invitations for DS to participate in various interventions at school. We were also told that the LA finally increased his funding (though it's still well below what the SENCo costed out).

I'm worried the school is now using up this additional funding for provisions they know he can't access. Is it reasonable for us to request the school give the intervention places to other children until DS can return and to use his funding when he can access them? He's also timetabled to meet weekly with an ELSA. Can we ask for them to pause all provision? They've said provision in F can only be delivered in school, but DC can't attend. Any specific wording we should use?

What happens if we change school after our tribunal hearing in May and the current school claims to have used up all DC's funding? What would the new school get? (It's likely to be a wholly independent, if we win.)

@SpaceInvader321 even if DS can’t attend school, the LA is still responsible for ensuring anything detailed, specified and quantified in F is provided. This duty is absolute and non-delegable. It isn’t true provision can only be delivered in school. But it will depend on how it is worded in F. The LA is responsible, so contact them. Inform them DS is unable to attend school and they need to make arrangements to ensure DS receives a suitable full-time education under section 19 of the Education Act 1996 (this duty is separate to the EHCP) and anything detailed, specified and quantified in F of the EHCP as per their duty under section 42 of the Children and Families Act 2014.

Focus on DS rather than asking the school to use the funding for other DC.

What happens if we change school after our tribunal hearing in May and the current school claims to have used up all DC's funding? What would the new school get? (It's likely to be a wholly independent, if we win.)

It doesn’t work like you are imagining. The LA is responsible for the SEP in F and the placement. That includes ensuring there is sufficient funding. If your appeal is successful and DS moves school, the LA will be responsible for the new school funding.

@BrightYellowTrain Thanks. I have already requested s19 provision and the SENCo said they received a medical needs referral form from the AP setting, so something is in motion though details have not been shared with me despite my chasing.

F has issues, so the school might be able to get away with saying it can only be provided in school, especially as most provisions indicate that a teacher, LSA or SENCo will deliver them. Examples of wording: DS 'will be paired with an adult for reading ... 30 minutes/week ... delivered by School staff, Key worker, Teacher' and DS 'will have regular sessions with a familiar, known and trusted adult outside of the classroom to talk about any anxieties he may be having at school. This must be a key adult who has experience working with children with autism and ADHD, and who knows DS well ... delivered by Key adults, overseen by SENCo ... Weekly 20-30 minutes'.

I find it so hard to work out what kind of wording ensures a provision is watertight. In our WD (which the LA still hasn't returned after four months), I've removed all the vague 'school staff' in favour of Learning Support Assistant, Subject Teacher, etc ... but does that create loopholes in the future if DS stopped attending again?

I also asked school if the LSA could deliver thing like DS's mentoring and EF provision over Zoom and was told that 'unfortunately' they've only been trained to deliver the provision in person at school.

Good to know about how funding would work for the new school if we change.

the school might be able to get away with saying it can only be provided in school

@SpaceInvader321 leaving aside whether F is enforceable or not (that will depend on the exact wording of each part), it is the LA who is responsible for F, not the school.

LSA/TA/HLTA can deliver provision outside of school, but it will be the LA who is responsible for ensuring that is provided where necessary. I have 2 DSs with EOTAS/EOTIS. As part of their packages, one has an LSA to cover all but the time at an AP he goes to, the other has full time HLTA (the role is actually broken into 3 because the role is too much for 1 person) and a TA.

‘School staff’ definitely needs to go. That could be delivered by the e.g. cleaner or reception staff. Along similar lines ‘key adult’ and ‘trusted adult’ need amending too. And what ‘experience’?

Hi, I'd like to join if that's ok, currently at assessment stage for DD, aged 14. Hasn't attended school since September, ASD, possibly PDA...she absolutely does not want me to do anything other than let her stay at home, in bed playing animal crossing currently.
Completely overwhelmed by everything...I'll try to read the thread but I don't think I can take much in currently!

Welcome @Icantpeopleanymore.

We've just realised they said on his ehcp:

Name will be supported using strategies that can minimise his asd, and demand avoidance.

The people who are supposed to be defining his support want to minimise who he is 😢. He is wonderful as he is, he doesn't need to be minimised. He needs to be properly supported, allowed to learn about his special interests and given genuine choices. Anything else would destroy him.

Yes, we are going to go to mediation and then probably tribunal over the whole bloody thing, but this makes me saddest of all.

@SprigatitoYouAndIKnow you only have to consider mediation. You don’t have to partake. Personally, I wouldn’t bother with mediation in your situation. Just get the certificate and submit to SENDIST. The LA is likely to use mediation as a delaying tactic. If the LA is going to concede they can do so whether you actively partake in medication or just get the certificate and submit it SENDIST. Then request an expedited hearing on the basis DS isn’t in school.

@SprigatitoYouAndIKnow
“Minimise his ASD and demand avoidance”.
A really useful phrase I’ve kept in mind while ‘annotating’ (or basically rewriting) DS’s EHCP was:
”view the environment - and not the individual - as the barrier to progress”.

Therefore I’d personally want that phrase rewritten as something like “adopting strategies/an environment that supports needs” rather than seeing the child/their needs as a ‘hinderance’.
To me, it’s this mindset that is so important. There seems to be a tendency to jump to the conclusion that it’s the child’s ‘fault’, rather than the adult adapting or questioning the support they are providing.

Hi, hope it's okay to join. Had a refusal to assess just before Christmas and I sent in the appeal earlier in the week. Today received official confirmation with dates for hearing of between August and September 🙄

DD9 has ASD, sensory issues and potentially ADHD. Expert masker at school, but we've had difficulty getting her to school for the past two years... (Though we would always manage to eventually get her in every day). This academic year (4), it has however escalated and her attendance is currently 70%, though decreasing every week.

SENCO was a bit hands off before Christmas, though has been a bit more proactive since I sent a strongly-worded, yet diplomatic email to both her and the head, following which we had a meeting with both.

Has put a fair few more interventions in place and is taking DD's case to the Local Inclusion Forum Meeting next week.

I wanted to ask about the S19 provision to provide a suitable full-time education... How would this work if DD is still attending some of the time? Some days she manages to go in from late morning (but misses maths and English), some days she manages most of the day, but others not at all.

I did request this of the LA and they came back with an email to say that what they offer for children with "serious health conditions" is an intermediary school, but they would first need to liaise and get a referral from the home school if they found it to be necessary etc. I looked into this school and there's no guarantee referrals would be accepted anyway.

But also, there's no guarantee this would be suitable and/or she would manage going to a brand new environment...

My previous thread is here if anyone wants more info:

https://www.mumsnet.com/talk/special_educational_needs/5262238-ehcna-refusal-to-assess-appeal