Tribunal: how close did you get to a breakdown?

[mariamariam]

Approaching deadline to appeal 'failure to assess'. Namechanged now for obvious reasons, but still recognisable to regulars. The charities have given good advice but say they wont be offering more than that since we seem to know what we're doing and they need to concentrate on parents who havent a clue (i paraphrase)

School will be opposing the application (partly genuine difference of opinion, partly sheer ignorance, partly because in cahoots with the LEA) so i need ro make sure the case is spot on. And i have s tendsncy to obscess and waste hours in projects like this, but we can't afford an advocate. Definitely cant afford a solicitor/ barrister.

My main fear though, is that I can't personally afford a breakdown as 1. my job wd probably not be there on recovery; 2. the dc would lose more than we'd gain in getting DS an adequate education; 3. Ds1 really won't get a workable education without a statement.

Advice please!!!

Tribunals can only order wasted costs - which means legal or expert fees incurred during the proceedings - and then only if the tribunal decide the LA behaved unreasonably in bringing it to tribunal. LAs will always find some minor issue to say this was a genuine difference of opinion and needed to go to tribunal. Tribunals will rarely say you should not have defended an appeal at all.
I have only ever seen tribunals order wasted costs if for e.g. the LA produced new evidence at the last minute which meant that previous expenses had been unnecessary or extra last minute duplicate work was needed. Its very very rare. You cannot get compensation from a tribunal i.e. for the cost and stress to you or the private therapy costs you have paid out waiting for tribunal, the most you can get is legal and expert fees used for the tribunal process. At least that is my understanding of it. To get compensation you have to sue for negligence which is impossible now as legal aid does not cover it anymore and there have been so few successful cases with enough damages you can't find a lawyer to do it on CFA.
Thats what annoys me tbh that LAs know even if they lose and lose big they will never have to pay back the cost you had to pay out for private education while you waited for tribunal.
LGO can look at it in theory but in practice because they cannot look at anything which had a right of appeal or which the tribunal had decided, they can't look at very much of it. LGO also can't award costs if the tribunal didn't as they can't overrule the tribunal...so you are back at square 1

Found the solution:

The Financial Services Ombudsman charges financial institution £500 for every case that they fail to settle, so has to be adjudicated by the FSO.

So why can't SENDIST charge LAs say £1000 for every case that they fail to settle and has to be heard by SENDIST (obviously if the appeal was vexatious the LA would be absolved from the payment).

But at £1K a pop - it may make LAs more disposed to trying hard to resolve matters pre-SENDIST, espcially refusals to assess.

Leonie its because they go through the reports and deliberately select only the bits that fit the provision they want to make. My LA cherry picked info shamelessly. So the paed had written 'DS will need statementing in future'. The LA told us this was evidence DS did not need statementing now etc etc. They deliberately ignored every single thing in every report which did not suit them even the EP saying DS needed ABA or as a minimum SS, they went right ahead and wrote a statement for mainstream and got it through their supposedly independent panel. My LA wrote the statement to the provision they wanted to pay for, not for need. They could not care less if if met need, in fact 3 professionals told them it would not meet need and they went ahead anyway

6 days to go to tribunal hearing here, and I had an e-mail tonight saying that since the LEA had agreed to the changes we gave them after our meeting they want us to withdraw the tribunal - they have sent the document and a request to tribunal and apparently we need to OK it. I have had a quick look at the document - obviously it will need a closer look - but I think that they have agreed everything that was outstanding so we can cancel. Phew!

Wow alison!!

Good luck!

Fantastic news! Really hope they have included all the changes!

Excellent - proves what fighting can do. Well done Alison. But make sure they issue it as a Final Statement with all your changes in it - even if they have to deliver you a copy on the steps of the Tribunal entrance

The LEA have sent a form to the tribunal asking them to rule that the court order the LEA to issue statement identical to the one attached - It has all the amendments agreed in it. Apparently I have to contact the tribunal to say that I agree with this. There are no dates on it so I will be adding dates to it and a bit to remove footnotes where they were about the LEA arguing with our amendemnts - even though they have now marked them as agreed.
Anyway it shows the value of hanging on in there.

It also is due to some valuable advice from people here, from the fantastic advice from an independent ed Phyc who never even met DS and a great independent OT report at the last minute that we had done.
DH was great in the LEA meeting - he kept saying things like " so if you don't agree with our wording and we don't agree with yours then we need to find a form of wording that is acceptable to both of us" and " So, have you agreed this point then?"
My saying " this statement has to work in any school "- and that I wasn't doubting what the SENCO from the high school he starts in Sept was telling me repeatedly meant that they didn't disagree with the wording, and the SENCO from the current school added weight to a lot of my arguments.
Being able to site the SEN cop and the DoE guidance for writing statements helped too - so thanks to all the points in the right direction.

Well done Allison - I'd be interested to hear who you used as an OT if you can PM me.

appropriately have PM'd you