We lost our tribunal case against LEA

[micku5]

So what happens next?

dd2 has SEN and a statement and we felt she wasn't making enough progress in mainstream school so took her out at the end of yr2 and enrolled her at an independent specialist school. She has come on in leaps and bounds.

I took the LEA to tribunal over parts 2,3 and 4 of her statement. These were discussed at tribunal and the tribunal have decided that she was making progress albeit slowly at mainstream school and therefore it should remain as part4.

However the order states that we can appeal part 2 and 3 but not 4!!!

I obviously disagree with it but is there anyway i can challenge it?

My solicitor is going to be looking into it in finer details but i would like some points/questions to ask her and see if i can take it further.

Any help and advice is very much appreciated.

What order?

I'm so sorry. I lost a tribunal and that was worse for me than ds getting a dx.

Are parts 2 and 3 accurate now?

I'm gutted to hear that, sorry. I've lost a tribunal too - it leaves a nasty taste in your mouth, that's for sure, particularly when you know you've made the right decision for your DC.

Is the "order" the SENDIST Decision Notice? You can apply for permission to appeal the decision, but it's not easy to get permission and win - AFAIK, you have to be able to demonstrate that the First-Tier Tribunal made an error in law, rather than an error in interpreting evidence.

One thing that struck me reading your OP was this - I'm presuming that the Tribunal decision defined DD2's progress in school as "adequate" - what sort of progress was she making, and what was the evidence base they drew on to make this call?

You said she was making slow progress - the SEN Code of Practice has various definitions of "adequate" progress that would give the panel members conniptions if ever applied to their own darling offspring . It might be worth looking at this, particularly if the evidence is based on mainstream school assessment of NC Levels, which is notoriously dodgy.

How did the Tribunal consider the evidence from your indie school? Presumably that showed at least adequate progress - was this seen as excessive?

I am a bit confused, perhaps it's just me but how can they determine what is an appropriate setting before first determining an appeal against parts 2 and 3 to determine needs and provision to be provided to meet need. Surely it's somewhat illogical to look at placement before need and provision?

I am so sorry

There is case law that each part of the statement has to be done in strict order. Part 2, then Part 3. Only when part 2 and 3 are done, can part 4 be done too

I have no idea if this helps you, but it seems ridiculous that you cant appeal part 4 if you can 2 and 3.

The case law is specified here (it's a PDF so will download if you click the link)

davidwolfe.org.uk/SEN%20Noddy%20Guide%20November%202012.pdf

I don't follow what you mean about saying you could appeal re parts 2 and 3 but not 4. Do you mean that the tribunal ordered amendments to parts 2 and 3 but wouldn't amend part 4?

If you do have a valid appeal, it's an absolute right - the original tribunal can't limit it in any way.

So far as your solicitor is concerned, as indicated above she can only appeal if she can show that the tribunal has made an error in law, and she will presumably be best fitted to advise on that. Did she represent you at the original hearing? If you had a barrister it would be sensible to get his/her views also.

Sorry to hear this

Very sorry to hear this micku5 - I hope there is a way you can appeal.

So put in a REALLY strong part 2, 3 appeal and let part 4 flow. This is a significant delay, not an outright loss.

Children change as they get older and the gaps get more obvious. Exploit those gaps for part 3. You may not end up with your current indie, but you may even find a better one by the time you are done. It's OK to measure mainstream against the progress rate of the indie if you are forced to send her for a while.

e.g

1. What's wrong - sensory issues too severe for mainstream environment
2. How to sort it - quiet environment
3. School that can sort it - tiny class sizes, small school of no more than 50 pupils total

ohhh - look the ONLY school can be named in part 4 is now that lil indie down the road thats so tiny.

I loathe and despise this myth that mainstream can provide a fully inclusive education, and that children have to be deliberately set up to fail time, after time in order to access the NC.

Mainstreams are hardening in their anti SN attitudes as time goes on, not getting more inclusive. Kids are getting managed out of state education at younger and younger ages, it makes the old complaints about the 11+ seem a joke.

bochead, I don't see how she can put in a new parts 2 and 3 appeal to the First-tier Tribunal - they must have been dealt with in the appeal she has just lost. We need clarification from op.

It sounds as though the Tribunal have stated in their formal Decision (post-Hearing) that the OP can apply for leave to appeal against Part 2 and Part 3. But this can only be on a basis of an error in the Tribunal's application of the law, not the actual decision itself.

This really does need the OP to go back to her lawyer/barrister to determine what, if anything, can be done about part 4.

Thanks for the replies. The way I read it is as TOWIE2014 said, I can apply for leave to appeal against part 2 and 3. The judge did say in the tribunal that we could only appeal if there was an error in the law.

They viewed the fact that dd2 was able to sit the spring SAT's and scored as progress, whereas she wouldnt sit them in Nov (mocks). She scored the lowest in her class but when the moderators checked the work and the teacher assessments she was marked down to a level 1, the school and teacher disagreed so it was moderatored again and the Level 1 stood.

The irony is that DD1 is still at the mainstream school but thankfully in year 6 so she will be leaving in July.

The school cannot deal with children with statements who have underlying medical issues as dd2 and 2 others have left.

The ONE child is the school that has a statement has no medical underlying issues.

The school also couldn't provide any evidence of differentiated work that they said dd2 did! I have all her books and the homework, spellings and timestables were certainly not differentiated for her so she would get 0/10 and 1/10 for spellings and maths on a weekly basis and they tell me that she was making progress?????

solicitor is looking into the decision to see if we have any grounds of appeal. DM is also a barrister (but doesn't practice in this country) but I have sent her the details and maybe she can let me know if there is another option.

It really isn't up to a tribunal judge to say what you can and cannot appeal. If they've made a legal error and it affects the decision on part 4, then of course you can appeal in relation to part 4.

My apologies, gone through it again and I may have read it wrong. I think the judge was referring to the original appeal. There was so much to take in and I read the last bit without taking it in properly.

The last page says

Order
The appeal is allowed is respect of part 2 and 3 but not part 4.
The LA is Ordered to make Amendments to part 2 and Part 3 of dd2 Statement as set out in appendix
Part 4 should continue to name xxxx school (a mainstream school)

I will read the articles recommended and make notes before I speak with my solicitor.

It came down to cost, and the annual cost of dd2 attending mainstream is £2727 (she gets 20 hours 1:1) but her attending the independent school will cost approx £11,000 and that is unreasonable public expenditure as both school can meet her needs.

Whether you can appeal is likely to come down to whether there were any errors in relation to the decision that both schools could meet dd's needs - did they consider all the evidence, did they interpret it properly, were there any errors of law etc. Unfortunately the Upper Tribunal is always going to be reluctant to overturn a finding based solely on the evidence as the original panel had the benefit of seeing and hearing the witnesses.