Finalising statement when they haven't considered all the reports

[linksandsmileys]

I posted below as our LA intend to press ahead and finalise DS's statement when they have conceded that they have not yet had time to consider the impact of the EP's report we have filed which asks for full-time provision (they are recommending 15 hours).

Their view is that they need to abide by the 8 week deadline which expires in about a week and they won't have time to have considered the report (which was filed with them at the end of Dec). They have suggested we make an application to the Tribunal and negotiations should continue after the finalising of the statement.

In fact the meeting with them was a bit of a non-event as they were not in a position to comment on whether they needed to increase provision as they had not talked to their EP about our EP's report.

I suspect that this helps them as they can issue a statement with a lower level of provision than they may be forced to offer after taking on board our report but it seems to me that this neglects their duty of care to the child.

Even if there is an 8 week deadline, surely they should be making every effort to consider the evidence witin that time frame. They still have over a week.

We may still not agree with what is on offer but the issues would be clearer.

Hi Debs

Just seen this latest post.

I'd view it as a reluctance to negoiate.

The 8 week 'deadline' is an artificial limit and there is no penalty for exceeding it, so there should be no rush to finalise it while you are still discussing it.

I would lodge the SENDIST appeal immediately and make quite clear in my application that the LA have forced you to appeal as they have insisted on finalising the Statement without giving an opportunity for discusson.

I'd copy that to the LA.

They are probably hoping that once the Final Statement is issued you will not go ahead with SENDIST.

I guess they got that very wrong

I think many ours anyway LA's use this as a strategy for delaying provision for another 6 months and for pushing costs into next years budget etc.

I think that's what they did with us. A solicitor said that we had a case for Judicial Review, because although we lost the tribunal, what they were telling the panel ds needed was massively increased from what they said in the first final statement.

I suppose I could argue that if they had provided that in the first place, ds would be further along and we (and them) wouldn't have incurred the costs and stress of a tribunal.

Thanks for this.

I learnt today that their deadline is not in fact until the end of the month so I think there is no excuse for not giving this another once over.

Wet, I have requested that they take this new evidence back to 'panel' before the expiry of the deadline and that they have a duty of care not to issue a statement when they have not decided on the level of provision to meet his needs.

I have made it clear that there will still be issues to negotiate (extra hours will not address the absence of SALT!) but I think if they are going to issue it without resolving this, we sould at least try to improve DS's statemented hours while we await Tribunal.

Requesting they take the new evidence 'back to Panel' (grrr!) is a good tactic.

My own experience with the Statementing process shows the LA can delay if you ask. My LA had all the necessary (their employees) reports by early Feb. Meanwhile we were still waiting for private Psychiatrist and for (2nd) CAMHS Psychiatrist reports.

I wrote to LA asking them not to make a decision (on whther to issue a Statement) until these 2 reports were obtained. LA agreed. I had made the application for statutory assessment the previous August - so they had already exceeded the 'deadline' by a far way. The reports were provided at the beginning of March and proposed Statement issued in mid March.

I don't think that rushing to Finalise a Statement without taking time to consider all the available evidence is a very unreasonable stance. It would have to be amended if they decided to take heed of the new evidence.

Best wishes

And isn't it 8 working weeks anyway - so the clock would have stopped ticking over Christmas.

That's right Wet, and I found out today that they have longer than I thought so there really is no excuse for at least taking a decision on this before te statement. It might not lead to much more, but it's worth a go, particularly as any extra provision might get him back to school.

Wet, can I ask, when a statement is issued, and school decide to recruit a TA, can you ask to be part of the recruitment process? Our head is a cold fish and wouldn't have a clue about the sort of person DS would respond well too.

Look at the Regs at the appendix to SEN COP s.17(4) I could not cut and paste it - it lists the exceptions one of which is the parent wants to make representations outside the 15 day period - then the 8 weeks need not apply

Thanks Agnes. I understand there is also provision somewhere which confirms that an LA must treat independent reports in the same way they would treat their own.

Its in the SEN Toolkit apparently??

Have you got a copy of the SEN Code of Practice? Phone DfES 0845 60 222 60 for free copy if not. LEA tried something similar with us. I said I wanted a written guarantee from every LEA panel member that they would give equal precedence to and include information not yet taken into account- which they said they could not give- and then delayed the decision until all info considered. There are anyway instances in which time limits can be extended/ waived etc. You must expressly state that you do not consent to their going ahead on this basis if that is the case. Good luck..

Thanks. We haven't named a school yet in Part 4 as we were considering all options but probably another possible mainstream school.

Should we just name the school we are at for now? The LA said they could put 'a primary'

You need not name a school but can describe a type of school eg. on site OT and SALT etc.

Do you have a private ed psych report yet - they can descibe the best type of setting for your child.

Might give you more bargaining power if they think you might go for a private school.

Yes, the report we submitted was an independent report and she as suggested high levels of 1:1 if in mainstream.

I obtained this legal advice on school placement which confused me slightly:

You can, of course, appeal to the Tribunal for any school you want, but if you do not express a preference at this stage then (aside from the fact that it will leave the choice of what is in the statement entirely to the LEA) there may be a slight difference in the legal test that the Tribunal would apply when deciding the appeal. In practice, any difference that arises is unlikely to be determinative of the appeal, but, as I say, if you are able to name a (maintained) school now then you should do so.

Any reason why this should have an effect?

What year will he be going into in September. Is there a legal restriction on the staff-child ratio?

If so, you want to name the school before the application process has finished (asap) so that they 'reserve' a place for him or you can argue later that they have had ample time to regig their staffing.

Otherwise it won't really matter when you name the school.

There is some merit in letting the current school think he will stay there. If they think you're off, they might just give up even trying to please you.

However, you have much more clout over your choice of school if it is actually named, by name in the statement.

Technically you have this right anyway under the section 9 rule (i.e. parental preference) but it is harder for anyone to argue if it is in the statement.

Sorry x post!

You can't evoke section 9 without a tribunal. The tribunal might be interested to know why you have stalled naming the school you want and be unsympathetic and rule therefore that all things are not equal - perhaps? Or at least, because you were so undecided there can't be much in it.

A definate answer might be more convincing.

Thanks, our difficulty has been that school have been useless and are far too academic and pusy - he needs a more caring environment and smaller classes.

So we do feel we will need to change schools and we did want to consider specialist schools too.

But at present, he is where he is. Should we just name the school we are at for now?

TBH this is probably your best chance at getting another, better school. The law has changed (as you know) so you can, in future appeal and get a different school named in a year at the annual review (assuming you aren't going to tribunal).

I think your case is weak for a special school if you haven't shown that you have made attempts to get it put into the proposed statement (although expert witness reports for the purpose of tribunal can be an excuse/reason for you changing your mind).

I don't think there is a wrong answer, jut a slightly better one, and that is to bust a gut getting round schools over the next four weeks to make up your mind.

Asssrgh... this means moving out of county as all the schools here are pretty much of a muchness

Oh, am stumped then.

As I said, I don't 'think' it is a massive deal, just a better way and a not so better way. You might need to get some expert advice.

BTW - have you heard from Claw lately?

It would be hard to argue for more than your EP report says - if mainstream + 30 hours then I think you could argue specialist if the cost difference between 30 hours in mainstream and special school was not that big.

They only have to make appropriate provision so even if they followed your EP anything over 30 hours + mainstream cost would be seen as overprovision / unreasonable use of resources. However if the cost was not too much more you could argue it on parental preference

Does EP say small class sizes? So you could say private mainstream school + 1:1?

I always think you should put your first choice - you can always negotiate down but much harder to negotiate up

You could argue that without a Statement that fully descibed his difficulties and without sufficient Part 3 provision stated (because the LA had not yet considered these private reports), that you are therefore unable to make an assessment of what type of provision would be required or that any specific school could meet those needs (as they would be greater than stated in the Final Statement).

In short you'd be making - and you'd be asking any admitting school to make an uninformed guess as to suitability.

SENDIST frowns on Final Statements with no school named in Part 4. I know because our LA refused to name a school for DS.

I would just play the 'LA aren't serious about discussions because they have rushed indecently to finalise the Statement when they didn't have to' card. Then sit back and let LA make the next move.

Meanwhile research provision that you consider may need his needs. How about HHS in F - an indy?

TBH - It looks as though the LA have decided they canot/wil not deliver additional SALT and OT and would have to be forced to do so by Tribunal so their thinking is that they mau as well finalise as Tribunal will be inevitable given that unbridgeable gulf between you.

Seriously hope I'm wrong.

Wet - I think you are probably right about Tribunal. I don't think they are going to volunteer extra provision unless compelled to do so. Tribunal it is then! I've expected it alll along so I don't take it personally. It'ss about cash not children after all. It is what it is!

Agnes, our EP does not specify mainstream or specialist provision. She was of the view that DS would need specialist provision but she has not put this in the report because we have not said that is what we want for him. However, the level of provision she has included (not just full-time specialist 1:1 for unstructured and structured times but specialist teaching too) indicates something beyond the mainstream.

I suppose our view, at present, is that we want to see our son included in m/s if possible. I feel he has a right to be there.

I don't know if we are being naive but we would like to try and see what happens with better provision (he basically gets nothing at the moment) and a school with a more caring and child-centred attitude. We'd like to give him a fighting chance of giving it a go at present.

So, I suppose I am suggestion that we stay in mainstream for now but if I am not sure that I can identiify an appropriate school for both my boys before the statement is finalised. An additional complication is that we would have to move house and pprobably change LAs

If we put our current school down, I suppose this at least makes them feell they are going to be responsible for him. Although I think Wet has a good point that placements should follow the proper assessment of need and provision really.

I wouldn't name the current school unless you were sure it could provide the required level of support.

Your current school will probably be the LA's choice anyway so let them make the choice and keep your options open to look elsewhere.

Any chance of your EP being available for the Hearing. That was one thing I definitely wanted R to attend had we actually gone that far?

In some cases, the private EP report comes after appeal to tribunal has started so you might find it difficult to name a place. For example,. the place we thought would be suitable for ds, the private EP made some other suggestions and because we wanted to get the appeal in and 'reserve' our date, we described the placement and will now look for something described by EP.

Current school - how keen are they to keep your ds? Ours is extremely keen and very open to suggestions to help ds. However, this very recent conversion followed my attempts to move ds - before that, every suggestion I made was resisted. Do you think your current school will 'tie' his TA to him or use it for the teacher's benefit?