Do the school get 6 weeks grace to implement a new statement?

[moosemama]

I'm sure I read this somewhere, but can't find it now.

Three weeks into term and ds's statement still hasn't been implemented - in fact last time his teacher and I spoke she hadn't even seen a copy.

I am trying not to go in all guns blazing at the start of a new year, so have just gently prodded a couple of times so far, but things are starting to happen that simply wouldn't/couldn't if the support in his statement was in place.

Do they get a 6 week period of grace - or do I need to dust off my steel-capped butt kicking boots?

Spoken to LEA. I was right - they allowed the bloody school to make those changes to the statement AFTER I had signed to approve the content of the Final Statement. Statement Officer didn't see anything wrong in this and said it was reasonable. Also said I was deliberately reading the new wording the wrong way, as it could be taken either way - I pointed out it shouldn't be able to be taken either way - it should be specific, ffs!

Basically she told me the statement stands and if I want the wording taken out - it can be done at AR (NEXT SPRING!) if it's been proven inappropriate!

She said it sounds like I don't trust the school - she's not bloody wrong there - and that's my problem that I have to deal with via the meeting with school and PP.

I pointed out that his statement hasn't been implemented - her comment? "Well it's still very early in the term".

I am now shaking with anger.

OK;

1. How far out of time are? You have two months from the date of the letter

1. The case of IPSEA -v- Secretary of State [2003] EWCA Civ 07 makes it very clear that wording which provides flexibility for the benefit of the school and not the child is unlawful

1. This approach to failing to arrange is unacceptable. Forget the LGO - contact a major law firm like Maxwelll Gillots or Levenes and instruct them to start JR proceedings. They will advise on the issue of the unlawfully worded statement too. A letter from lawyers about it all might sort it.

You have to show them you will not be messed about.

Is it two months? I thought it was one? In that case we have a couple more weeks. We have access to a very good local advocate who has been very successful with our LEA, we have legal support via his legal advisor. Dh is calling them this afternoon.

The SO insists that the wording is to benefit ds, not the school and that I am just 'reading it wrong'.

Bearing in mind that previously the statement said "to ensure worries or upset can be identified as early as possible" and this is a totally new sentence that we never agreed should be in the statement, How would you read:

"They will listen to X's concerns if they arise at times that would be arranged between staff and X without impacting on his learning."

I read it as he will have to wait to address any anxieties until it's convenient for staff to see him at pre-arranged times.

SO said it just means that the mentor will deal with concerns as they arise without impacting on his learning. I said I felt it gave them the freedom to only deal with issues at scheduled appointments, rather than as and when they arise and that that has been done to make it easier for them to resource the mentor's availablity and not for ds's benefit.

Why else would they feel the need to add that sentence, if they fully intend to address his anxieties as and when they arise? They told the SO that they could only meet his needs if that sentence was added - so clearly they mean to use it to their benefit - not ds's.

When I spoke to the EP she said she put the following wording in her report:

"Access to the mentor should be offered on a regular and consistent basis"
and
"In order for X to be ready to learn, his emotional difficulties need to be carefully managed and addressed. He requires access to trusted mentor figure on a regular basis in order to explore any worries ..."

.. because he needs to be able to access his mentor as soon as an issue arises or he will be unable to access learning for the remainder of the day - or until such time as his anxiety/problem has been addressed. She was clear that he should be able to access his mentor as often as possible to ensure his anxiety levels are kept under control, by dealing with problems as they arise.

(By the way, I got them to change 'should' to will in the first sentence and "He will therefore be provided with access to a trusted mentor figure ...")

You still have time and you should lodge an appeal to get this wording changed. It is far too vague and uncertain and it is, therefore, unenforceable. An appeal might be the only thing that gets the LA mind focussed.

"They will listen to X's concerns if they arise at times that would be arranged between staff and X without impacting on his learning."

You could change to: " a named member of staff (or named members of staff) will be trained and available to deal with concerns when they arise so that they does not impact of X's learning. X must know who he can go to with concerns"

That sounds good AE, I'm waiting for dh to call me back once he's got hold of the advocate. Advocate was very keen for us to appeal even before we agreed to finalise, but I had had enough of fighting at the time and caved in. Hopefully we will make a better job of things this time with him on board. He's local and really experienced in dealing with our LEA and their 'methods', so hopefully will have seen this type of thing happen before and be able to walk us through where we need to go from here.

I am so down though. I really thought we were over the hump and might, perhaps, be able to grab a tiny piece of semi-normal life for a while before the whole secondary transition rears it's ugly head. I knew the statement wasn't perfect, but felt I'd got it tightly worded to get ds what he needs to get him through the AR prior to secondary. I should've known better, but it felt too nice to have my head in the sand for a while.

NONE of this is your fault. It should not be this way. It really shouldn't. But it is, and you sound like you have a good advocate and you have the law on our side.....and us!

Thanks AE. It's hard not to blame myself, when it was my health issues that meant we didn't get to tribunal when they messed us about not releasing the amendments though. I just didn't have any fight left.

Trying to look at it more positively, at least I have had some time to rest over the summer, so I should be in a better position to give them a good fight this time.

I'd also email the LA case officer to confirm your conversation with her, esp the bit they allowed the bloody school to make those changes to the statement AFTER I had signed to approve the content of the Final Statement. Statement Officer didn't see anything wrong in this and said it was reasonable. Also said I was deliberately reading the new wording the wrong way, as it could be taken either way - I pointed out it shouldn't be able to be taken either way - it should be specific

You should get this in down writing.

Hadn't thought of that bialy. That's a really good idea. Can't email them, as we aren't given their addresses, but you're right, I should confirm it in writing.

I do have evidence though, I have the second proposed with the original wording, plus a scan of the form I signed to approve the final amendments with the final, minor amendments I wanted done attached.

good to hear you still have good time in responding and appealing the final statement.
Making these changes after your signatory is
I hope you can get this resolved without too much heartache and battle...

Thank you.

Moose I don't have much to contribute except anger that they are messing you around in such an underhand way. DO NOT blame yourself for not pursuing things to tribunal earlier. Your health issues are a real factor and you are not going to do your dcs any good by wearing yourself out physically and mentally. You should not have to fight for this. It sounds like quite a lot of it should be just good practice anyway.

Thank you NoHaudin. Just had a long talk with dh about it all and we've agreed that we need to assess what the possible gain/outcome for us/ds1 would be if we push either tribunal or judicial review. (I'm still a bit [confused and not totally clear on what would be needed for what or if we would need to do both.)

We would love to go after them just to stop them or at least make them think twice about doing it to someone else, but if we are going to end up with little gain for ds1 then we would have to think long and hard about how it's likely to affect my health and the family in general.

The added complication is the secondary applications just going in. We really want ds to go to the local school and he is starting (with a lot of encouragement) to accept leaving primary and going there, as it's where his best friend and most of his current peer group will be going. I'm really scared of screwing up his chances by doing the wrong thing here. Local schools are all pretty incestuous round here and I'm already concerned about the school he's at putting the boot in over the provision in his statement.

We have arranged to meet with the advocate early this week and he has access to a SEN legal bod who can tell us if/where/when and how they've crossed the legal line and what's the best way of tackling it.

Moose - is the legal bod a solicitor?

Basically, you go to a Tribunal to challenge the provision in the statement. If this provision is going to cost, the LA are likely to fight you. If what you are after is better and more enforceable wording, they would be mad not to negotiate lawful wording with you.

You apply for judicial review (with legal aid available in your child's name) to enforce the provision currently set out in the statement. If you instruct a solicitor (and you would need to for a JR), they will simply write to the LA setting out the elements of the statement which are not in place and asking the LA to put them in place in 14 days or they will be taking to court. The remedy at court is that the court will enforce the provision.

Legal bod is a SEN solicitor (apparently a very well respected one) yes.

Thanks for explaining that. In that case I had got it right. JR depends on outcome of meeting with school - if indeed I get a reply with an urgent date on Monday - if they don't implement the provision asap next week, given that the LA said it's OK "because it's still early in the term" I would have no choice but to instruct a solicitor.

Tribunal would be for negotiating wording only, none of the provision will cost the LA, it's more about effort and organisation on the school's part - hence them not wanting to do it all. LA stated categorically to me that they wouldn't make any of my amendments unless they could be taken directly from SA reports - they then let the school add two sentences of provision, one of which actually has evidence against it in the EP report, the other contradicts what the EP wants and makes clear in her report. Both are more for the convenience of the school than for the benefit of ds.

What I want to know is:

a) is it legal for them to add provision to a statement AFTER I have signed to say I agree with the second proposed and am happy to finalise that version

and

b) if it's not legal, what benefit is there to be had in pursuing the LA for it, other than making sure they don't try the same trick on other people.

oh and

c) if we are to pursue them for it, how?

Advocate has worked on cases involving our LA for years and says he's never come across this before.

I'm now wondering if they had the school's amendments all along, but deliberately held them back for the final statement until after I'd agreed to finalise, because they knew I'd object to them. I can't see how they did it other wise, seeing as the final amendments were made in August, when the schools were on holiday. At no point did I see or approve the amendments/insertions that the school have put in. They were placed within paragraphs that should have remained unchanged from the second amended proposed as far as I was concerned, so I had no reason to check them.

LA officer stated that the school said they needed the two insertions to ensure they could meet his needs. (I already knew that they had balked at my earlier amendments and told the LEA that they wouldn't take/keep ds if those amendments were made, as they wouldn't be able to meet his needs.) To me, them stating that they needed to change the provision drawn from the SA reports in order to be able to meet his needs is a clear indication that the changes are for their benefit, rather than his.

What did you sign? The LA can decide to put what it likes in the statement but it must do so on the basis of the evidence submitted to it which it should share with you.

This means that it does not need a parent's signature or agreement to the provision it intends to put in a statement. In fact, LAs frequently ignore what the parents want/say.

The usual process is:

1. Issue proposed statement
2. Parent makes representations and can ask for a meeting
3. LA issues final statement which may or may not contain what you want in it

LAs may delay finalising the statement so they can try and reach agreement with the parent but they are subject to an overall time limit. Often, they use this 'negotiating' to drag things out and postpone the issue of the statement.

This is clearly not good practice but the way to challenge it is either a complaint to the LA about the practices or, more effectively, challenge what you don't like in this statement by an appeal to Tribunal.

We had to sign a form that said:

I accept the amended proposed statement

I accept the amended proposed statement subject to some minor amendments (Please detail these below or attach a copy of the statement with the amendments written onto it)

I do not accept the amended proposed statement and wish to discuss it further with the named officer

We then had to name the school we wanted on the same form and sign it at the bottom.

We ticked and signed against the middle option and sent off the final 'weasel word amendments' as agreed with the SO over the phone. She then ignored my minor amendments. If the LA can do what they want and put what they want in even after we've signed it, it makes a mockery of the whole system and the form irrelevant/pointless. Not that that surprises me.

Been stewing on it all night. The officer didn't make my minor weasel word changes that I detailed as 'minor amendments' and we had actually agreed she would over the phone - but she was happy to make two significant changes to the provision that the school wanted, which are contra-indicated in the SA reports/evidence, without sharing them with me until they had been included in the Final Statement and even then they weren't pointed out and had been slotted into the middle of points that I had already accepted, so weren't immediately obvious when skim reading.

I have realised this morning that the places she hasn't changed the weasel words are the places that the school wouldn't like it eg, it now says:

"ds needs additional time to finish assessments ....." whereas we had agreed "ds will be provided with additional time to finish assessments ...."

The school has a bee in it's bonnet about this one and there was a meeting at the end last year with the HT about it because I complained that he hadn't been getting it, as agreed with the EP. Last year's teachers wanted him to have the extra time and the SENCO/Head didn't. I was told they had agreed that it was necessary and he would get the time. The EP stated in her report that he has a significant weakness in his process speed (this has been formally tested and the results were included in SA) and therefore needs additional time for assessments and exams. Yet the SO obviously thinks she knows better.

So far this year, ds has been kept in at breaktime to complete work they were using to assess where the pupils are after the holiday. When I raised it with his teacher, she stated that he had the same amount of time as everyone else and it was sufficient, I told her extra time was a requirement of his statement (which of course she hadn't seen) and now I find they haven't tied up the language the way I wanted anyay so it's not enforceable. His confidence has already taken a knock this year because of this.

"Longer pieces of writing can be completed using ICT" whereas what we agreed was "Longer pieces of writing will be completed using ICT".

"X is likely to struggle with less concrete/fact based aspects of the curriculum that require him to draw inferences from text or understand alternative perspectives and that he will require extra support with these elements of the curriculum. Whereas what we agreed was "X is likely to struggle ......... or understand alternative perspecitves. The school will provide him with extra support with these elements of the curriculum.

They ignored my request to clarify what organisational help ds would get in the morning meet and greet, when all it stated was the meet and greet was to help sort out any changes to the timetable/structure of the day and what was recommended was that they would help sort his bag, equipment homework etc for the day. I suggested

"The mentor will provide a 'meet and greet' in the morning in order to sort out any letters and/or homework, prepare and organise his equipment and discuss any changes to the timetable/structure of the day.

Instead they completely ignored my wording and yet allowed the school to add sentence to the same point about using a checklist at the end of the day - something that has been tried and failed several times, most recently by his autism teacher and which was detailed as a failure in the EP's SA report.

I have teeth ache from grinding my jaw all night.

Oh and they did indeed delay negotiating and agreeing the final statement. We were chasing them with no response for week with them refusing to respond, until we threatened them with legal action. Then they issued the second proposed and dragged that out until after the end of term. Odd how the school managed to contribute changes weeks after the end of term.

only seen this thread recently, v v sorry that school and LEA have shafted you, my instinct is to fight this dishonesty hard, but lets see what the more expert battlers on this board reckon!

out of interest, can I ask why the end of day checklist didn't work? was it too much for your DS, or did school not bother?

Hi TLP

They developed a wipe-board style checklist for him to complete daily, as obviously what he needed to bring home and do homework-wise is different every day, despite some regular timetabled stuff. It had a few standard items on it, but the rest needed to be filled in daily.

Basically he needed a checklist to remind him what to do with the checklist and then another checklist to remind him to use the checklist - and then he would probably need another checklist to remind him do that one! He explained the problems he had with this to the EP when they met for her to do her SA report and we had also mentioned it, plus it was listed as a 'tried strategy' by the outreach team. The EP included it in her report as a failed strategy and to support the fact that what he needs is not lists and checklists, but proper adult 1:1 support at strategic points of the day, plus as and when needed to deal with anxiety.

We've also used checklists at home at various times eg getting ready for school and after-school homework etc. They do help him to understand the process, but he needs us to take him to the list and check off each item as he does them. If he doesn't have adult guidance throughout the process he simply doesn't manage it on his own. As soon as we try to ease off and encourage him to use the checklist independently it all goes belly up.

We trialled it, but essentially he needed an adult to work through the checklist with him. The school want to develop a checklist for him to avoid the fact that the statement has them providing a member of staff to support him at the end of every day. This has other implications, as he is also supposed to complete a feelings diary with the same person at the end of the day, so needs an adult present anyway.

It's all about how the school resource and facilitate staff to support ds. Way back when the first proposed statement came out they told us that they wouldn't be able to meet his needs if we persisted with the level of contact we (and the EP) want him to have every day, 'as it's impossible to facilitate and we won't be employing anyone to support him'.

What has happened is that the school now has other children who have ASD, lower down the school. They are not statemented, but have higher needs than ds in terms of 1:1 supervision. Therefore all the school's TA resource is being used by them. Fair enough, I don't begrudge them the support that they need, but at the same time, my ds has been at that school since he was 3 years old. He was failed by them for refusing to recognise his ASD earlier, despite us raising the possibility over and over to his teachers. We have fought hard to get him a statement and now the school are quibbling about the support the professionals who have worked with and dxd him state that he needs because they would find it hard to manage in terms of staffing. It's just wrong. I do know that at least a couple of the other children are now being put forward for SA. I wonder what will happen to them if their statements don't stipulate full-time 1:1.

oh lord, so it's all for their convenience rather than DS's then

There is no legal requirement that parents' consent has to be obtained to a proposed statement before a final statement is issued. So, even if the LA sought to obtain your consent, there is nothing to stop them from then seeking further information elsewhere and incorporating that into the statement. As a matter of law, it is their decision to take, based on all the evidence. Parental evidence is part of that, but only one part.

However, SEN COP sets out clear duties to work in partnership with parents and this is a clear erosion of that duty.

I would raise this as a concern and say you require an explanation. But you may need to appeal the statement to make the changes you want.

Thanks AE. I was afraid that was the case.

What I''m most confused about is how they managed to get changes from the school in the middle of the summer holidays. As I said before, I suspect they already had the school's changes, but chose to hold them back rather than disclosing them to us. Doesn't exactly sound like they were 'working in partnership with us', but I don't really feel like there's much point in pursuing it, as they've told me 'tough' before and they will just do it again.

I also don't understand how the school can make changes that aren't supported by the SA reports/evidence and yet the LA openly refused to make changes for us that I felt the evidence was there for. (By categorically refused they said, without even hearing what I wanted to change, "We refuse to make any more changes and that's that - you can take us to tribunal if you want, but we are simply not changing another word and you won't win.')

Then weeks and weeks later, well after the 26 week period and after we'd written asking them to finalise so we could appeal and they'd ignored us, we'd followed up by phone and been ignored again and finally we wrote to them threatening legal action, they suddenly agreed to make some of the more controversial changes that we wanted, plus spent almost an hour on the phone changing weasel words with me.

At that point we had had enough and agreed to finalise the statement as it was after the changes we'd just agreed, plus a few more weasel words, we missed on the phone. SO said she would leave instructions for those extra weasel word changes to be made and the statement finalised while she was on holiday. BUT the failed to make minor 'weasel word' amendments as agreed, and this again leaves flexibility in important parts of the statement that benefit the school rather than ds.

I have since found out that the statement wasn't finalised in her absence either - she did it herself.

SO keeps saying that the LA, school and parents should be working as a team to support ds and implying that my lack of trust in the school to implement the statement in the right way (where ambiguity remains in the text) is the problem. She also told me that she trusted the school to judge what needed to be changed in or added to the statement, because they know my son's needs better than I do! She had no answers for why - if the school are so knowledgeable about ds's needs - the school didn't know that checklists are a failed strategy for him. [him]

I'm tempted to request a copy of ds's file from them just so I have a clear view of just how underhanded they've been (not that I can do much about it). How do I go about doing that?

hi, have a look on your councils website for a subject access data request - i printed that form off and completed it then took it down to the council - it takes up to 40 days to process and costs £10. otherwise ask for his school record file - makes sure you ask for all emails and details of telephone calls as well. that letter needs to be addressed to the chair of the governors and takes 15 working days - think they can charge for copying but its not much. may be worth getting both so then you can compare the two but rememeber time for tribunal is running out. you could wait until mid feb when they have to re issue the statement naming the secondary school and appeal then agianst the either part 2 3 or 4 or indeed all parts. its a mess for you and horrible that these games are played. i have used judical review myself in the past and it worked a treat - the mere threat and then getting the letter made the lea finally do something and i got a grovelling apologu. now going to tribinal over my younger son - saw my MP last firday who is also a govt minister and a letter has gone to the lea asking about their ridiculous practices that is making us go to tribunal - he was also phoning the chief executive after we left. we are taking bets on how long the lea contact us after getting the letter on monday mornings - so far they have ignored us since july!!!! and the lies - you will become used to the lies buts it horrible to know that it goes on. i was promised the lea officer would visit our school choice 1st week of term in sept - my current head told me on friday that lea havent visited it yet and cannot yet say when they will as they have not even made an appointment - head is furious as the same officer assured here that our son would be moving in the next 3 weeks - thats clearly not going to happen but hopefully the letter from the MP will focus their minds more quickly