Crafty LEA declines statement

[amumtothree]

After calling my lea yesterday to find out whether we were on track to get a decision on statement or notice in lieu next week, after much wrangling I have found out that they are to issue a NIL.

I stated I was suprised as their EP had said she would be suprised if he didn't get a statement and the OT was very supportive.

At this stage she said they didn't receive the OT report in time, it's not up to them to chase the report and a decision had to be made (not until next week though).

She also made a comment on the fact that my son has made some progress (well school (and us as a family)have been giving extra help, but the gap is getting bigger even if DS makes progress).

Where do I stand? I've done the tears now I'm on to the practical.

My DS is 7, with dyspraxia, dyslexia and autistic traits.

Is there any merit going to my MP, local couciller. Do I fight?

Do I leave it 6 months and reapply for the statement, his teacher has already said that without more help he will be falling further behind (which will probably help with a statement).

Sorry it's a long one.

Well, firstly, wait for the Note in Lieu. They aren't as straightforward as a 'no to a statement', if done properly.

A statement is only declined if the LA concludes that the child's SEN can be met from within the school's own resources +/- support from outside agencies.

In order to justify that conclusion, the LA will send you a document - the Note in Lieu. That will do two things:

-It will define your DS's SEN, as a Statement does.
-It will set a benchmark for his current attainment and progress.
-It will set out what the school could and should be doing from within their own resources to support your DS.

So the steps you can take are:

-Look through the Note in Lieu. Make sure that you agree with any defined SEN stated. Look through the reports which formed their decision, make sure nothing is missing which would have swayed the LA if taken into account.

-Look through the Note in Lieu for any statements about his current attainment, progress, and reasons for lack of progress. Again, check it's accurate and nothing is missing.

-Look at the provision that the LA states the school should be making. Is the school currently making this provision? If not, you should make sure the SENCO is going to implement the suggestions.

-Look at the resources that the LA states the school should be using - are they?

-Look at any outside agencies the LA suggests being in contact with - are they?

Then, you have two choices:

1. Accept the NIL, keep records for the next 6 months. If you are unhappy with progress after that time, re-request SA.

2. Submit an appeal to the First Tier Tribunal (formerly SEND). If you choose to do this, make sure you know the time limit and stick to it.

MP and local Councillor can't do anything - it's a legal process and you'd need to formally appeal to Tribunal.

Thanks Lougle, I wasn't sure what a NIL contained.

The issue I have is that his main issues are OT related and they don't have an OT report. Normally they make the decisions at the latest possible panel date and mine has been made at least a week early.

My hope was that the MP could maybe shake things up to get things looked at in the next week before a NIL is issued. They have the option to wait for the OT report. But in my opinion have chosen not to as then they would struggle not to issue a statement. We also sent in our last OT report which they have failed to use (she said that was used in agreeing to assess, but we also sent it in with the 2nd pack).

School are already very supportive, but feel he needs more.

Apologies I'm new to this. I come from an HR background were things seem to be much more set in stone. This process just seems so biased to the LEA.

It's really not biased. It's simply that the LA are responsible for making the decisions. Parents have the right to appeal that decision.

If you haven't got the NIL then you can't know that they haven't used the OT report in their NIL. Having said that, if your last OT report is convincing, then you can launch an appeal based on the fact that they haven't used all the information available to them and that if they did so they would have concluded that a Statement was necessary.

Appeals can take around 6 months to be heard.

Lougle, you are the voice of reason. It just feels very biased at the moment. I have to wait 3 weeks to appeal as that's when my NIL is due (even though the decision is made).

The lady I spoke to on the phone told me no OT report was used to make the decision (she was very clear on this - it is not their responsibility to chase it, but they are required to make a decision by law within the timescales).

His SALT has signed him of as she feels his communication problems are related to his dyspraxia.

His OT and consultant are both aware of his learning barriers and neither have been approached. So to me I struggle to understand how they can make a decision (and why they felt the need to make it so early). Our last decision was made on the last day possible.

Hello there, just popping my head up, long time lurker here. The system can seem really confusing but the charity IPSEA (www.ipsea.org.uk) has some very useful online resources setting out the whole process (including what to do when you get a note in lieu: lougle summed it up already for you) and they also have a tribunal helpline should you end up going down that route.

I don't know what others think but might it be worthwhile, as you are now waiting for the NIL, and the LA are unlikely to go back to the drawing board at this stage with a week to go, emailing the statementing officer to confirm in writing you conversation: very matter of fact letter (don't express surprise or concern). E.g. Just writing to confirm our conversation: LA did not receive the OT report and could not not postpone the decision making deadline, LA has not relied upon independent OT report, LA will be issuing a NIL, look forward to receiving it etc. I just wonder if that might help should you need to challenge missing OT down the line?

"His OT and consultant are both aware of his learning barriers and neither have been approached."

The SEN Code of Practice says:

"7:82 For the purpose of making a statutory assessment, the LEA must seek written:
A. Parental advice
B. Educational advice
C. Medical advice
D. Psychological advice
E. Social services advice
F. Any other advice (such as the ascertainable wishes of the child) which the LEA or any other body from whom advice is sought, consider desirable. In particular, advice from Service Children?s Education (SCE) (see Glossary) must be sought where the child?s parent is a serving member of the armed forces." SEN Code of Practice, page 92

They must seek medical advice. Did he not have an assessment with a Paediatrician as part of his SA?

How detailed was your Parental Advice? Did you go into the specifics of his difficulties there?

Thanks for the reply loulou, I will try IPSEA on monday and have had a little look at the website.

To be honest the lady I spoke to did not seem keen to give me anything in writing. They are very cagey (they didn't want to give me the decision and I think accidently let it slip about OT and then defended the situation). To date I've been very easy and have gone with the flow.

I know they could (and in my opinion should) have got an extension of time if the OTs report was not in. It just feels like everything is about making the process as long and as hard as possible.

i think they maybe slightly fobbing you off re the OT and lougle has given some very good advice. i have just come out of the other side of tribunal and my LA argument was that noone had ever suggested my son needed OT so they never got a report. now they had the reports they tried to still ignore it but then on the morning of the tribunal conceded all of the OT provision.

You only have their word they dont have the OT report. Do you have any proof that it was sent to them? During the process I always hand delivered any documents or sent them so i got a signature. My LA tried a few times to deny they had got reports until I threatened to produce the signed for receipt for the documents and then they backed down immeadiately.

the biggest advice i can give you is - evidence. you need to evidence everything so the advice re now backing up your phone call with an email is very very good advice because things will be denied. i think if you do get a NIL then it owuld be worth an appeal especially as what lougle has highlighted above from the code of practice.

Sorry lougle cross posted.

We did not go to a paediatrician during the assessment period, and they had not contacted DS's as far as I was aware.

The only medical advice would be SALT? who have signed him off.

As you say I need NIL to be sure.

Their EP said he had complex needs and should (altough not her decision) get a statement. In our previous OT report (of which they had a copy) it stated DS need 1:1 to stay on track and to help with reading and writing. DS alos possible ADD.

Parental advice detailed all his problems and also self esteem issues which are only getting worse. He works so hard and doesn't see the results.

Oh yes, absolutely, bjkmummy. My parental advice was huge and I backed up my views with quotes from each report, saying 'see Paed report dated xx/yy/zz, page 2', etc. The last page was a list of the reports from each professional with their specialism and the date.

I sent the whole thing next day delivery, so that I had proof that they'd received it.

Cynical, moi?

Thanks bjk. Ii have emailed my OT as I'm quite sure she would have responded, if the request got to her.

I will email the lea and see if anything comes back. I just fail to understand why, unless it's for sinister reasons, they would make the decision without OT.

re the OT and sinister reasons - i hate to be cyncial but if your OT reports is the thing that will swing it to you getting a statement, it seems very strange that suddenly now they havent received it. if he needs OT provision in the statement, taht is going to cost them to provide the OT therapy. It does feel like a game and i know it shouldnt be like this. but see what happens and then if necessary appeal, sounds like you have a very good case for an appeal and when they see that you are determined they may well back down.

re the paedatrician - i find that also odd that you havent seen one. everyone on here will tell you that as part of the statutory assessment we all were seen by a paed. the appointment quite basic but we all went through it. that would have been an opportunity to talk about the OT as well. this is also a question you need to ask, why you have not had a pead appointment as part of the statutory assessment

Thanks lougle, for taking the time to make things a bit clearer. There's so much info and you've helped pick out the relevent bits.

thanks bjk it does feel like a game. But with our DCs educations and futures.

I had a similar situation as ds ot advice was late too. However he did get a statement without it. The ot assessment and report was not done until after we got the proposed statement. I was told the ot advice would be included in the final statement but it wasn't. I contacted the la and they said there would be a second final statement but didn't come until I had appealed. They were dragging their feet. I was still not happy so didn't withdraw appeal and still in the progress. Good luck.

They are breaking the SEN Code of Practice if they didn't get medical advice.

I would look at Chapter 7&8 of the SEN Code of Practice (you can download it from the link I gave you) and look at the process laid out there. Compare it with the process you've had, then write an email to the Statementing Officer raising the points that:

-Medical Advice does not seem to have been sought
-OT advice has been ignored

Say that you will be taking this to tribunal if they don't rectify this.

sorry bjk cross posted. We defo did not see paediatrician for statement, he is under a consultant paediatrician at the hospital but I don't think they contacted her.

Without wanting to sound parinoid I feel they are really trying to stitch us up. I also feel if they had all this info then a statement would be issued, despite the little bit of progress he has made. That was why I wondered if it was worth getting my mp involved before the NIL was issued as it seems they have failed to follow their own procedures and the law (sorry I'm grasping at straws again).

Cheese, it seems I should resign myslef to a battle. Good luck to you too.

Sorry lougle another cross post. I guess I need to wait for the NIL to do this. It just seems unfair that they have not done their job properly and now DS has to wait (again) for an appeals process.

Amumtothree, no advice to offer, but just wanted to say I think the process is biased towards the LA, they have all the power and as others have said have selective memories and are very very crafty. I wanted to wish you luck and hope that you get the outcome your child needs.

thanks 2tired. It's just sad what we have to through to get DCs what they need and deserve.

I know amumtothree, I feel the same and just wanted to let know that you aren't alone feeling disempowered by the system. Though I think that some of the people who work within the system make choices which exploit their power base and then sit back and blame processes and systemic difficulties when actually a different attitude, compassion and commitment to those who have no choice but to approach them would make a massive difference. Public sector folk just ain't what they used to be, I fear.

Good luck

Just thought i'd share my experience. As others have said I think a pead report is mandatory, DS has no medical issues at all but still had to be seen. DS is deaf and our LEA issued a NIL having done the assessment without the teacher of the deaf report! They changed their mind before we even lodged the appeal (had taken independant advice and were waiting for some independant assessments to take place). I don't know what caused them to change their mind we just got a statement through the post out of the blue, so you never know you may get lucky too.

thanks 2tired - it made me feel a little less paranoid

thanks geo good to hear a good news story