Got my refusal for SA for DD - confused by their reasoning

[pannetone]

I applied for SA for 8 year old DD with HFA and selective mutism who is already noted by the LA EP and CAMHS as 'complex'.

So the Moderating Group (who I am delighted to hear had 'the opportunity to read the paperwork prior to their meeting'!) had a 'detailed discussion' and acknowledge DD 'is experiencing some difficulties' but 'feel at this time SA may not be the most appropriate way forward to support her needs.' [my emphasis].

This is because 'funding for SEN has changed.' It then goes on to talk about how money that was held centrally by LAs 'will' be delegated to schools. So SEN can be supported to 'a considerably higher level than before'. And schools can get 'top up funding' from LA for 'higher level needs'. Crux point is 'it will no longer be necessary to carry out a SA in order to provide an appropriate level of resources to address a student's difficulties within a mainstream school.' [my emphasis].

So on the one hand I seem to be being told I have 'missed the boat' for SA! There again why tell me SA may not appropriate 'at this time' - it won't be around after Sep 14! And I'm told SA 'may' not be appropriate - I thought they were meant to make a conclusive decision at this point! And all the stuff about new funding arrangements is phrased as what 'will' happen. I want DD's needs met now.

I am then offered a meeting with the LA rep to 'share the Moderating group's recommendations'.

I intend to appeal - and I don't wait for that meeting do I?

If SA, MAY NOT be appropriate, by definition it MAY.

If it MAY be appropriate then by law, it is.

Yes, appeal, no don't wait for meeting though you can agree to it if you like, just with a lodged appeal.

Actually, thinking about it more, you aren't asking for provision, you're asking for an assessment.

How the feck will they be able to provide support from their delegated funds if they haven't got a clue what the child's needs are, just that they are complex?

It's a silly argument but you probably only got a cut and paste standard letter which goes out to everyone now in prep for Sept.

I am in a very similar position pannetone my LA have refused to assess Dd3 who has also been described as having "complex needs" They wrote in the letter "We acknowledge that Dd3 has SEN but dont feel that she requires a SA at this time"

Completely bonkers IMHO if they are acknowledging that she has SEN but think her needs can be met in mainstream surely the school and us need to know exactly what her needs are and this can only be done properly with an assessment of her needs!!

We have our meeting after the hols and our appeal was posted last week!

I agree with Starlight ours was definitely a standard letter, I know 3 other parents locally who received pretty much the same letter within a 2 week period!

I like your thinking starlight - you put into words what I was thinking in your first post - 'may not' be appropriate = 'may be' appropriate! But then I can't get my head round whether 'may' needing SA means that the LA 'should' undertake SA. Isn't the test that LA should carry out SA where a statement is 'probably' needed?

Then again I don't really see the logic of that test for SA anyway - surely the point of SA is to decide if a statement is needed - and, particularly in DD's case where her needs are 'complex' until that assessment is done it is hard to 'pre-judge' the level and type of support she needs. Which seems to be what you are saying Ineedtinsel. I'm not going to be mollified by an assurance that mainstream schools now have the resources to meet 'higher level needs' when my DD's needs haven't been fully assessed!

Sometimes I worry that the tribunal will go for the LA's argument that the system is changing anyway in Sep, so why give a statement, or at this stage, tell the LA to assess. By the time I get a tribunal date it will be May/June (if the LA don't concede). The Tribunal still have to go by the existing SEN Code and procedure don't they?

That is pretty much what I was saying it is what I have been advised by an advocate. I feel the same about the assurance that Dd3 will have her needs met at SA+ and this will continue under the new system but I dont think this will be the case when she moves to secondary in September.

I have already been told by the secondary that she wont get any one to one support on SA+ !!

You know more about your dc than anyone else. So a panel reading some paperwork is more likely to err than you.

It's pretty simple . If the school can meet her needs, don't bother appealling. If they can't, then do appeal.

I think what they are saying is that they have made the judgement that any child who attends mainstream school will have their needs met from within delegated/enhanced resources and therefore, by definition, will not require a Statement.

This is because the current threshold for a Statement is that the child has SEN to a degree that the nature of provision necessary is beyond the resources of MS schools in the area:

"8:1 Once all the advice requested for the statutory assessment has been received, as described in Chapter Seven, the LEA must decide whether to draw up a statement. The LEA may decide that the degree of the child’s learning difficulty and the nature of the provision necessary to meet the child’s special educational needs is such as to require the LEA to determine the child’s special educational provision through a statement."

8:2 The LEA will make this decision when it considers that the special educational provision necessary to meet the child’s needs cannot reasonably be provided within the resources normally available to mainstream schools and early education settings in the area. "

It's often overlooked, but this is a contextual condition. In other words, the same child may need a Statement in one area, but not need one in another area, because different areas have different provisions available as 'standard' and different funding agreements:

"8:14 The decision as to whether to make a statement should be determined by the child’s identifiable special educational needs in the context of arrangements for funding schools in the area."

Working backwards, from Statements to Statutory Assessments, an LA should not carry out SA if they believe that a Statement is not 'probably' necessary:

"7:4 An assessment under section 323 of the Education Act 1996 should only be undertaken if the LEA believe that the child probably has special educational needs and that the LEA needs or probably needs to determine the child’s special educational provision itself by making a statement."

Your LA, from the sound of it, have decided that the needs presented to them in requesting a SA are needs that can be met by the resources available to (that is, not necessarily already held by the school, but obtainable by following a process to get extra funds) the MS school your DD attends.

I suppose an analogy may go like this:

It's 2009 and you are diagnosed with a medical condition known to respond to a particular medication. Due to funding constraints and red tape, you can only get that medication from a specialist. So, your GP, knowing you need this particular medication, has to refer to the specialist, who will then see you and say 'she needs this medication'.

Now, roll on a few years (in our case, we're rolling on to the new funding system in SEN):

It's 2013 and you are diagnosed with a medical condition known to respond to a particular medication. Everyone tells you that you're going to need to see a specialist. But, when you go to the GP, they say 'oh it's alright, I know what medication you need, here it is.' Since 2009 they've changed the system and you no longer need a specialist referral to get the right medication.

So the situation has changed.

I'm not saying that your DD doesn't need SA. It's your right to appeal. I'm just saying that if the judgement they have made is that she doesn't need support beyond that available to her school, then they have made the right decision.

We as parents like the accountability and legality of Statements, but they aren't the criteria for assessment. The criteria is a strict needs based analysis. If the school can access the necessary support for your DD through SA+ then she doesn't need a Statement.

What you could do, is have a think about what support she gets now, what support you think she needs, then see how much of that support you think is beyond the available resources of her school. That might sharpen up any appeal you make.

The problem is that if school thinks they can meet needs (or if the panel thinks school ought to think they can) then no assessment gets made.

This matters because sometimes the very process of assessment is needed to work out what the needs are, how they might be met, and how much that will cost. If the SA is done well, it can sometimes identify a need for very specific, useful interventions that don't actually cost much

But if school (or panel) are mistaken about whether they can meet the needs unaided, then no-one official will find out. You'll know, but that doesn't really count.

What lougle says is right. It's how things should be done. And with a school that listens, it works quite well. If it doesn't, a statement is usually sod-all use anyway.

Thank you lougle and maria. I entirely get what you call the 'contextual condition' lougle. I don't find it at all easy to know whether the school should be able to meet DD's needs through their existing resources and top up funds. I don't know if it is the complexity of DD's needs (not fully assessed and not helped by the difficulties caused by her selective mutism in assessments so far), or a failure by the school to put in enough or appropriate support.

Sometimes I think DD's lack of progress is the School's 'fault' - they haven't reviewed DD's support effectively enough, given her enough TA support, put in place ASD strategies etc (and the recent OFSTED the school got 'requires improvement' and support for SEN was specifically mentioned). Then I think they have tried - DD has had SALT from an independent therapist employed by the school, she had a course of art therapy, and she has had some TA support, they got the EP to see her.

It turned out that the independent SALT wasn't experienced enough to deal with DD's complex selective mutism, and I managed to get a NHS SALT 'on board' again. DD is now getting 16 sessions of NHS SALT - hour sessions split between time with the SALT and the SALT advising staff on a school support programme. I still wonder if that is sufficient - there have been issues with the TA not following the programme (demanding speech) and causing a set back for DD.

I don't see how I am meant to know how much SALT and TA support the school can meet from its budget and top up funds. I'd like DD to have a properly trained TA working with her but I am going to get that in mainstream? After the 16 hours of SALT the school have to 'buy in' further therapy - what do I do if they tell me she doesn't need it and her needs can be met just by the TA? What is the point of me getting an independent EP to set out DD's needs, when really what I need for an appeal are arguments to show that DD's support needs can't be met by the resources available to MS schools?

DD is in Y4 now - I really don't know if her needs can be met in a mainstream secondary if her selective mutism persists at the level it is now.

Sorry this is becoming a rant/ramble now. Yes, I want the legal accountability of a statement because I have had the scenario where my DS2's school failed to meet his needs and we ended up taking out a disability discrimination case for lack of reasonable adjustments which we won. There seems to be such a gulf between saying DD 's needs can be met by the school at SA+, and actually getting the school to provide that support. The school have what seems to be a disincentive to apply for top up funds because they will have to meet the first £6000 of support for DD. And they might prefer to minimise DD's needs so that that money can go elsewhere...

I like your anology lougle of the GP and the specialist providing medication. In the 2013 current scenario you wrote 'when you go to the GP, they say 'oh it's alright, I know what medication you need, here it is.'. The crucial bit is that the GP knows the medication you need - schools may not know (or perhaps may chose not to recognise) the 'medication' that is needed.

I realised that when I wrote it. The issue is, though, that the LA is only obliged to make a judgement on the evidence provided to them by education, health, social services and parents. If the school is reasonably seen to be implementing a graduated response to your DD's needs and progress is being made at a reasonable rate (which is not the same as a 'normal' rate) given her difficulties, and the school says they are doing fine, working through x, y, z., have plans to do a, b, c should there be no progress, etc., then the LA can only conclude that SA+ meets her needs.

The LA can judge whether they think a child with HFA and selective mutism will make enough progress with the interventions listed.

If you disagree, you have the right to appeal and they'll have to convince the Tribunal that the steps taken are enough.

Feeling a bit calmer day after rejection letter for SA - thank you for wise words yesterday.

I am still feeling a bit that the 'goalposts have moved' though... If I accept that DD's needs can be met at SA+ through the resources available to the school (including top up funding), how do I go about getting the school to actually put in place the support DD needs? (Realistically, that is a big reason I applied for SA - I want the school to put in place a proper support programme with SALT and TA support as the ed psych recommended in his report.)

BUT the school carried on using the inexperienced SALT when it was clear DD was not making progress. (School said newish therapist should be 'given a chance'.) I had to get specialist support from the NHS in place. I am still struggling to get the School to 'take ownership' of DD's support - they seem to rely on external agencies like SALT and CAMHS and aren't pro-active themselves. (Which may be fair enough as regards the selective mutism but not for ASD strategies).

So in a sense I have been given 'good news' that the school can get funding to meet DD's support needs! But my difficulty all along has been getting the school to recognise those needs, maybe because DD is academically able and has made progress in NC levels overall.

Who has overall responsibility for meeting DD's SEN? I know that the school governing body have to use their 'best endeavours' to meet SEN. Is the LA responsible - or is that only when a child has a statement?

I think on school action plus it rests with the school not the LA when I had issues re one of my sons, I wrote to the LA to complain and the LA passed it back on the school - the LA expectation at school action plus is that a school would write an IEP and that's all they expected

Thanks bjkmummy. I seem to be going in circles. The school isn't meeting DD's needs. The LA are refusing SA because they say that the school can get enough resources to support DD at SA+. The School isn't recognising the extent of DD's needs ( partly because of the 'disincentive' of having to provide the first £6000 of support?). The LA can't/don't need to force the school to put provision in place and to use their existing and top up funding because DD is not their responsibility as she doesn't have a statement.

So should I be going down the disability discrimination route against the school for a failure to make reasonable adjustments (as I did for DS2 at his school)?

Another point I have been wondering - does a school have to provide info on how it spends its budget generally - and specifically on SEN provision? Never heard of anyone getting those figures.

It kind of keeps going back to what I have been told Pannetone That if the school nor the LA actually know what your Dds needs are how do they know what support she needs and the only way to find out exactly what her needs are is to formally assess her!!

I am still going to give it a whirl and see what happens, I have nothing to lose and everything to gain. It is my belief and that of the indie ED Psych that DD3 needs to at least be assessed!!

I think you need to get that appeal in, and get your own independent educational psychology report. The reality is that the school will never get top up funding without a statement, and the very fact that the LA suggests it will be needed demonstrates why a statement is needed. But you need that independent EP report so that you are no longer floundering around in the dark. Phone SOS SEN to get the names of EPs who are used to tribunal appeals.

for me my child is in a tiny school and their sen budget is 5k for the year - they've just had a child statemented for 15 hours and as a bystander the school have done nothing more than what they were doing pre statement - theres no more extra TA support in place than there was before - my daughter will tip the budget over the edge but she needs specialist dyslexia teaching - im expecting a no as well - will be a little club of us over the next few months appealing refusual to assess - I think what I need more tinsel is saying is absolutely accurate and I would get the appeal in.

Thanks for replies.

I am going to get an independent ed psych report. Nothing is straightforward with DD though - it is going to be hard (not possible?) for the EP to assess her cognitive profile because it is very unlikely that she will co operate with any tests that require her to interact, let alone speak. BTW does the school have to agree to allow my independent EP into school? Most of the info the EP can get will be through observing DD at school.

I think that the fact that DD's difficulties mean that she is hard to assess, is a prime reason to do a SA! I know as lougle said above that the LA have to make their decision whether to undertake SA on the evidence provided to them - but I think the fact that DD's needs are noted as 'complex' (which seems to really mean 'not fully understood') should be enough. And as Ineedmoretinsel says, how can you determine if a child needs a statement to meet their SEN, if you haven't even established the full picture of those SEN to start with!

I suppose you may well get to be part of our 2014 challenging-refusal-to-assess club bjkmummy! I would have liked a 'yes' to my SA request, but having got a 'no', it is good to have the experiences and support of others on the same journey - and those that have already trodden the well worn path....

There are assessments that an EP can use with SM for example - there is a non verbal WISC assessment - a good independent PYsch, chat to a few if you can before engaging them will tell you how they can assess and with what tests.

Oh and send should be getting my refusal to assess tribunal papers in the morning too.

The school doesn't have to let your DP in. However, if you appeal to the tribunal you can ask them to make an order requiring the school to co-operate.

Sorry, EP, not DP.

Well I've done a tribunal already this year for my other son, a judicial review the year before for the other son and next year maybe an appeal against refusual to assess for my daughter so may as well go for the hat trick! Who needs a year off from fighting anyway :-) won both my other cases so hoping will be 3rd time lucky as well.

SEND got my refusal to assess papers last Monday for DS! Got tribunal for DD on 14th Feb for parts 2,3 and 4 after annual review and we are requesting an ASC independent placement! I think our LA are gonna hate us even more!