Complaining to LGO again about lack of provision and refusal to finalise Statement...am I naive?

[avoidthelightsiftheyreatrain]

After being royally shafted by LGO last time (LA told to apologise about one very small thing but some big things brushed aside), I am complaining again - LA have failed to provide something that's been in the Statement forever for the last 2.5 years - I just assumed it was happening and it hasn't been. So that's number one.

Number 2: the same thing that they were told to apologise for last time - crap administrative process for amending Statement

Number 3: February 15th has come and gone and we have no finalised Statement, despite the fac that they have to amend by 15th February as ds is going to secondary.

So, optimistic me says that I'm within the year, the breaches are clear and there's no excuse for not dealing with it; it deals with a lack of provision and an urgent issue as we can't appeal to SENDIST until we have finalised Statement.

But cynical, experienced me says that I shouldn't expect LGO to do anything other than make more excuses for LA, like last time.

Plus, what if I get the same investigator - can I ask for another one, especially as I complained about her and got her 'verdict' changed?

What a big mess.

appropriatelytrained, wet, tiredof, any thoughts?

(I am the one who wanted sleep, btw)

Go for it - Is my short answer. I will try and expand after some sleep.

If you can manage it you should. It's crap but it is the only system. It also shows you haven't disappeared with tail between your legs.

And hopefully it won't take so much time and effort as you've done it once before.

I know the system is unfair, but that doesn't mean you shouldn't use it if you have the energy.

That is part of my reason - showing they can't keep me down!

I think Star is right. We have to keep plugging on.

I am preparing legal submissions (supported by independent lawyers) on the LGO's decision-making.

I will send you a copy when drafted!

You need to differentiate between the statutory failings and failure to follow the SEN COP, which is just guidance.

On the failure to deliver what's stated IPSEA says, complain to school and the Director of / Chief Education Officer in the LA. I would expect that the LGO would expect you to have done so before hearing your complaint.

DS's Statement didn't have placement named at all in the year of transition as LA would not name a post-16 placement, which became of our our complaints to the LGO.

As they've failed to imrpve their administrative processes then it's probably worth complaining and referring to earlier complaint. I included a chronology showing date by date, their failure to arrange meetings, broken promises etc. It's easy for an investigator to see the sequence of events when you lay it out in this way.

AT - could I have a copy too please?

Yes, indeed. I shall make it publicly available once it is all in order and been approved by various peeps!

And that is important Avoid. Looking resolved and unbeaten. Otherwise it is like giving permission for them to shit on you over and over again.

I think the hardest thing for me has been when the system has failed us and the LA has taken this to mean that they were right, or I was wrong, - and for me in face of that (and their deliberate and repeated taunting about it) to keep going and focus on the future without whining about the unfairness of the past.

This is my strength actually (I have learned) and actually appears to be one of the most frightening things to the LA. Probbably because in their unconscious they know that they got away with it by the skin of their teeth and they are not as comfortable in their convictions that I am wrong and insane as they would like to be, - as I haven't just melted away in shame etc.

AT - what's the objective with your submission? Is it to demonstrate that the LGO is not deciding complaints fairly and is biased towards LAs?

No, it's to set out the legal framework within which the LGO is obliged to act. This means that it has to comply with public law duties in its decision-making to avoid being judicially reviewable. This means, amongst other things, that its decisions must be reasoned and rational, it should act within the law, it should take into account only relevant information and should not focus on legally irrelevant information.

For example, in a case where a local authority breaks the law (in terms of failing to perform a strict legal duty and not just in terms of deciding whether or not exercise a power), it cannot be right, as a matter of law, that LGO judgments have the effect of excusing or justifying illegality on the grounds that it is 'reasonable'. This leads it to a peverse finding of justifiable unlawful action which is an ultra vires act on behalf of a regulatory body whose job it is to protect the public against such unlawfulness.

There should be a prima facie finding of maladministration as the LGO has acknowledged in its guidance that 'complicity with the law is a basic necessity'. Maladministration can be found even where a LA acts lawfully but it against reason to suggest it should not be found where a LA acts unlawfully.

The LGO should then consider injustice arising from the maladministration. Part of this should be a consideration, in the case of failing to provide, of the systems a LA has in place to fulfil its recognised statutory duty to arrange the provision in a statement. There is no 'surprise' element here. The courts have long held that the law is very clear. The LA is under a duty to arrange provision from the moment a statement is issued and there is no 'best endeavours' defence. A failure to do so constitutes a unilateral variation of the statement and is unlawful.

A key focus should be the effect on the child. Not just 'did the child make progress despite provision not being in place' but 'was the child caused injustice'? This can include being discriminated against because of the absence of provision to support a child's disabilities. The Equality Act comes into place here.

Injustice must not be articulated from the perspective of the LA (i..e did they do their best) but from the view of the deprivation of a child's legal entitlements (whatever the justification/excuse).

I will submit that deprivation of support to a disabled child is an act of discrimination under the Equality Act in addition to a failure of his/her SEN entitlements and in itself must, by law, be seen to cause an injustice.

or something along those lines but with lots of cases etc

AT, I wish I was in a better situation right now to help you loads with this. My heart is in it but I am simply in the most complicated scenario imaginable which I can finally see an end to but isn't going to be any time soon.

Please don't write me off. I am unable to imagine a time when I won't be angry about the same things you are, whatever happens in the future.

Star don't worry I understand!

I feel much more comfortable dealing with a legal challenge than the messy 'facts' which change with lies so often and can be dismissed so easily!

In our case DS had a Statement. However the LA refused to name a suitable post-16 placement, preferring to pass the costs of the independant specialist placement that they recognised would be required post-16 to the L&SC. This effectively forced DS to leave 'school' against his wishes.

The LA could (and should in my view) named a specialist 'school' as the post-16 placement as DS had a Statement and statements continue post-16 if the child remains in school (not FE). The L&SC guidance at that time clearky stated that if a child had a Statement then it was for the LA to arrange post-16 placement. The SEN COP is vague about this and just states that if a Statement is to be ceased the Ed Pysch should assure themselves that the post-16 education (FE) is a suitable placement - which ours didn't.

When visiting the FE placement I met other parents whose children had Statements and whose LAs were offering them the choice of specialsit school or specialise FE College. They chose schools in order to maintain the child's statement post-16. We were denied that option.

I appreciate that maintennace of statements post-16 is a bit of a grey area (IPSEA told us so) but the LA did fail in it's duty to provide suitable education post-16 to a child with a Statement.

I kept my bundle of LGO documents - a few inches thick. Our case is probably not a good example because of the 'grey' areas. I'd be happy to give it to you if you thought it could be of use.

The LGO will argue that they have several conflicts of duty. Number one must be compliance with primary legisation but they'll also quote the need to ensure that public money is spent appropraitely. I suppose this is what you are trying to highlight - that 'reasonableness' does not negate statutoty duties and that if they do so they are acting ultra viries.

Yes. Wet and I would be interested to know how they could say any duty to ensure public money is spent appropriately can defeat a LA's obligations to a disabled child.

Clearly, if LAs arrange their systems properly and appropriately to ensure compliance with legal obligations, they will not be wasting people's money!

In my case, there was no attempt to even investigate whether such a system was in place. Despite TWO provisional judgments being issued, the LGO never asked the LA what its system for statementing provision was and never considered whether it could be improved to prevent unlawful delays.

This seems to be a key function of the LGO - looking at systemic problems and addressing them.

Sorry Wet, I meant to say, your case sounds very stressful. It would be very helpful to see examples of their reasoning.

The LGO do not seem to have issued any guidance in this area at all so it all risks being very inconsistent particularly when non-lawyers are trying to apply caselaw!

One of my complaints was that DS obtained his Statement in Year 11 and the LA refused to draw up a Transition Plan for him. (As the LA were refusing to name a school post-16 in the actual statement a Transition Plan was my back door way to force them into stating what post-16 educational placement would be)

LGO response:

A key part of Mrs X's complaint is that the Council was required to prepare a Transition Plan and failed to do so. The SEN COP and Toolkit deals with teh question of a Transition Plan, stating that it is a requirement to draw one up in Year 9. DS did not have a Statement in Year 9 so there was no requiremnet to draw up a Transition Plan.

Duh!!!!

The whole point is that DS received his statement so late (Year 11) that a post-16 placement for him was a very urgent need. That placement should have been determined via the dame multi-agency planning leadiing to a formal Transition Plan naming post-16 placemnet, that happens when a Transition Plan is drawn up in Year 9.

So because he didn't actually receive his Statement until after Year 9 the LGO condoned the LA's failure to provide one at the earliest opportunity thereafter - i.e. as soon as he obtained a statement in Year 11.

Now I think that's bloody twisted logic!

Yes you should complain again - go for it

Be very careful that you follow all procedures etc. The first contact I had (with the helpline) checked that the LA was notified of the breach of statement etc and then said they will look into it but surprise, surprise, their conclusion is that because I did not write directly to the LA, they were not 'notified' - even thought the LA did email and tell the HT that she acting unlawfully.

Good luck.

It really does seem that they use any excuse not to deal with these issues.

I must say again that my experience with the LGO in a non-education context was actually very positive. My disabled brother had his care package reinstated and was reimbursed for having to pay for it himself and this was FAR less clear cut.

There must be either some real misunderstanding of the law in this area (to be benevolent) and/or a real unwillingness to rule on these cases unless the prejudice is very, very bad because there are so many of them and there is a 'floodgates' argument.

It is interesting. I have just asked for the file which they copied to me without a problem before their first provisional judgment but they have refused information of it this time as it might be 'prejudice their ongoing investigation'. I have to say - what investigation?? Surely, after two decisions and nearly 12 months, they consider their investigation to be at an end. I suspect it's their internal discussion about how to get rid of the case - I know it had to go through an Asst Ombudsman.

The fact is it is much easier to tell the complainant to get lost than to upset a local authority (particularly when they have messed up the investigation and had to start it again). All the complainant can do is make further representations or apply for judicial review. They can freeze you out if they want to, very easily.

Yep, frozen out last time by a fuckwit very nice lady who just kept telling me that we're not in a perfect world and money is short. Garrghgghg.

appropriatelytrained, I will happily send you my case details from last time; very very long, complicated and boring though and a pointless judgement at the end of it!

wet, I don't think that I need to go through all the local complaints stuff with this because 2 things are urgent: non-issuing of amended Statement by February 15th deadline and lack of provision. Both seem to exempt from usual complaints procedure under LGO rules.

I will refer to earlier complaint but don't want the crap judgement to go against me. Also a little worried that I will get same investigator and we did NOT part on good terms...

star I hope that they fear you!

trying thank you