Best way of ensuring OT & SALT are put in part 3 of Statement

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Got 4 weeks until Tribunal and just starting on the Working Document (only just got specialist reports back). The reports show that DS has many needs in these areas and will require a lot of therapy that will need to go in part 3. However, LA just shoves it in part 6 (or ignores completely). Does anyone know the best way to go about this?

For every provision you have in part 3, you must have a diagnosis (or wording to the same effect as a dx if you don't have anything "official") in part 2. Part 2 is of equal importance to part 3. In fact part 2 is probably of more importance because part 3 will not stand up to scrutiny if there's not its equivalent in part 2.

My solicitor says its a bit like going to the doctors and getting a prescription. Part 2 is where the doctor has give the "diagnosis" and Part 3 is the prescription to each diagnosis.

Get part 2 correct before working on part 3. If possible - refer all the dx back to any reports you have.

Then Part 3 should follow naturally from Part 2. Again, in part 3, refer back to any reports.

Part 6 is non educational needs, prove it is an educational need.

Have you been on the IPSEA website and looked at the case law section? In terms of SALT look at the Lancashire judgment. Our LA tried putting SALT in part 6 but we pointed out that judgement and said we would go to tribunal if need be and they put it in part 3. Terrifyingly they told us that our child was the only child in the local authority to have SALT in part 3!!!

www.ipsea.org.uk/apps/content/html/?fid=50

my La put in part 3 and refused to move it all - on the morning of the tribunal they conceded the salt and ot and moved it all into part 3 - his needs were clearly educational and no barrister was going to try and argue that it wasn't - I think the LA were trying it on to see how much of the law the I knew.

whoops meant to say my LA put it all into part 6

All great advice, thank you. I am trying to keep in mind that part 2 is like the diagnosis and part 3 the prescription.

I've printed out some of the case law cited by ipsea, but would feel a bit shaky quoting it if the LA or tribunal panel tried to probe my legal knowledge!

The OT has diagnosed DS with SPD and dyspraxia (already been diagnosed with ASD) which will have a profound impact on his ability to access the curriculum, so they are very much educational needs.

Just feel bogged down with it all, being interrupted by the kids all the time and trying to put a case together.

Booby, of the hundreds of statements I have seen, 95% have SALT in Part 6. It makes me very angry and is a deliberate ploy to pass the responsibility to the NHS who in turn, will plead lack of staff and capacity.
SALT should not ever be considered a medical need unless it is to do with something like swallowing. It is overwhelmingly an educational need. (I'm a SALT by the way.)

At Tribunal (without expert witnesses) I did quote case Law in my appeal papers, I wasn't questioned about my knowledge of Law, just why I felt it was an educational need and how ds would benefit from receiving these therapies.

You might find it helpful to just read up on the argument via case Law, even if you don't want to quote Law, just to ensure your argument is focussing on the correct points iyswim.

Fingers crossed it wont even come to a Tribunal situation.

Any provision in Part 6 is not legally enforceable. So the NHS will plead lack of staff/capacity, and in turn, the LA will say "not our problem"

If you intend to quote case law at the Tribunal, do you have to submit that you will be relying on it beforehand? I mean do you have to declare that you will be relying on certain case law when you submit 'any other evidence' (my deadline for this is tomorrow)?

I didn't as such. In my case statement I mentiond that it shouldn't be in part 6 as was clearly educational and that was about it really. A tribunal panel know the law and it's a very brave LA who go before a tribunal to argue otherwise. I bet you they will concede the lot at some point. My la didn't even get a salt report so my report stood. In the dying hours they tried to get the tribunal to adjourn it so they could get one but the tribunal told them to poke off! After the final date passes someone from the tribunal will contact you to make sure you are ready and what the issues are so you could mention it then as well

Oh I didn't realise that someone from the tribunal would contact me - thanks for letting me know that bjk. I don't feel at all prepared tbh

Both my solicitor and the LA's solicitor (you know who!!) quoted all the case law in the documentation they submitted to the Tribunal prior to Evidence Deadline. But I don't think that either of them had to do it - the LA's solicitor was, as we know, showing off and using pointless irrelevant case law!

Whilst I agree that the Tribunal do know the law, personally I would put it in writing anyway, for a couple of reasons. Firstly, the Tribunal (Judge/Panel) do read every single piece of paper that is submitted to them - they will thoroughly read it all before the Hearing. So I don't think it hurts to tell them the aspects of case law you are relying on, if only to gently "remind" them the law. Also, if you do get to Tribunal, I found that my mind totally froze at a couple of stages - I had to give hours of oral evidence - at one point if someone asked me my name, I wouldn't have had a clue! When that happened, I relied heavily on the case bundle sitting before me to give me prompts about what I wanted to say. If you have already submitted the case law you are relying on before the Hearing, then this will become part of the case bundle so will be sitting in front of you.

My lawyers told me that tribunals hate surprises, and whilst case law shouldn't be a surprise to a Judge(!!), I don't think it hurts to let them know in advance what you are relying on.

Just to add that it is very well-established law that speech therapy should be treated as educational (i.e. Part 3) unless there are “exceptional reasons for not doing so”: SEN Code para 8.49; X&X –v- Caerphilly BC[2004] EWHC 2140, [2005] ELR 78. The Bercow Report described communication as a life skill and a fundamental right. See here

You could spell this all out in your own statement if you are filing one with final evidence or just do a list of cases you will be relying on with a one line summary of what they say. A Panel should be very familiar with this issue

Ok, thanks Towie and inappropriately. I will try and make a list of cases tonight.

The tribunal contacting you post final submissions was a new thing. For me was very helpful as my la was playing games so we had a telephone hearing with a judge who put the la in their place. I agree that it won't hurt to mention it at this stage - best to mention it for the reasons given above. I was quite worried that I would need to start quoting the case law but I didn't have to but it helped that I was prepared for it just in case. The panel do indeed read absolutely everything that you submit

The tribunal don't automatically contact people before the hearing in every case, so don't rely on it.