Notts not allowing an application for a SA under current SEN law

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I'm trying to help a friend of mine who lives in Notts. She is applying for a Statement on behalf of her grandchild who was diagnosed with ASD aged 4. Her DGC is now in year 6, in mainstream and still on p scales. He has made virtually NO progress since reception - it is truly shocking. School are not supportive in applying for a Statement. He is on SA+ and has a TA in the mornings. In the afternoon, he is left to his own devices.

She would like him to attend a special school in September as there is no way at all he will cope in MS secondary. I advised her to apply for SA and she rang up the LA who sent her back a form for an EHCP. She rang them to query this and stated she wanted him to be assessed for a Statement of SEN, not a EHCP. They said they no longer do this and have sent her a letter stating:

^In Nottinghamshire, the previous statutory assessment process relating to statements of special educational needs has now been replaced by the Education Health and Care Plan (EHC pathway). Details about the new pathway are provided in the enclosed leaflet which will guide you through the process step by step and explain how long each part will take.

...Not all children and young people will benefit from having an EHC plan, so your request for an assessment will be considered by a group of professionals from Education, Health and Social Care who will discuss whether to go ahead with the Plan, or whether your child's needs can best be met in other ways.^

I have offered to phone up the relevant person at Notts to discuss with them why they have this policy when the new legislation has yet to receive royal assent. However, I really want to be sure of what I am saying so that I have hard facts to demonstrate why what they are doing is not legal. The 'professionals' involved in her DGC's life so far have badly let him down. He was discharged from SALT and OT at 5 because of his 'failure to cooperate', when he clearly badly needs the input of these services.

Don't use their forms at all, use the IPSEA model letter and give them 6 weeks to give a decision about whether to assess. Expect a refusal so as soon as it is sent download the appeal forms to send the day you get the refusal.

Thanks. That is pretty much what I've told her. She didn't use an IPSEA model letter but she did her own letter (EHCP form was a bloody joke), making sure she mentioned that she wanted a SA.

I've just looked at the leaflet and it says,

From September 2013, we are offering all families who have requested a statutory assessment the opportunity to be considered for an EHC Plan instead of a statement of SEN.

It sounds like the letter must have been badly worded, and they are not "forcing" parents down the EHCP route.

Well, she received two letters, one after she phoned requesting a form for SA and one acknowledging her letter applying for SA. Both were explicit in their wording that Statements had been superseded by EHCPs. She didn't get a leaflet at all. If the leaflet you have seen says "from Sept 2013 we are offering..." there is an implication that it might have been written several months ago. As I said, she did ring them to clarify that she wanted a SA and they said they no longer operate this policy.

I don't doubt for a nanosecond your friend's account, but thought I would point out their official published guidelines, which she could use against them if they persist with their line!

"Whilst it is expected that the legislation will not be implemented in England until September 2014, a condition on all Pathfinder areas is that they will introduce their new arrangements a year earlier. Therefore, from September 2013 Nottinghamshire will, for all new statutory assessment requests, be offering the new EHC plan pathway with the exception of those young people in their final year at school where Section 139a Learning Difficulty Assessment will be undertaken to support their transition to further education.

During this transitional period, parents will still have the option to request a statement of SEN should they wish to do so."

Notts EHC Pathway Guidance Document

parent leaflet

Thanks NoRunAround. After my last post, I did find the leaflet on their website. I will talk to her about it tomorrow and see if she wants to bring it up with them . I might ring them on her behalf as she is really in the dark as regards to what the process is.

Ring IPSEA they are on the look out for this happening - they have written a letter to my LA when this was suggested as a policy and so have a letter quoting the law etc. Even if she writes her own letter send IPSEA a copy of the letter and leaflet. By all means ring but follow up in writing and make a formal complaint through council website. Make a paper trail.

This is from IPSEA website:

it is important that parents realise that their LA cannot divest themselves of their duty to assess a child by virtue of having a ‘pathfinder’ assessment scheme in place and that they can still request statutory assessment under the existing legal framework and appeal if the LA refuse.
The Education Act (EA) 1996 says that local authorities must
• identify children whose special educational provision needs, or probably needs, to be determined by the authority [section 321 of the EA 1996],
• and that they must assess the needs of such children [section 323 of the EA 1996].
Parents could also make a formal complaint against an LA which used as a reason for refusing statutory assessment the fact that they had an alternative (‘Pathfinder’) Scheme in place.

Also attach this letter from Stephen Kingdom of DFE (scroll down to Sept 2013) which makes it clear parents can choose to apply under the existing system.

The original Pathfinder info also made it very clear the pilot is voluntary

So she can write back in these terms, or complain, or threaten JR. Tell the LA to contact DFE for advice if they are unclear as to their duties (I would complain to DFE too)

I would be tempted to write back in strong terms and say if do not agree to use SA system within 5 working days and backdate the start of SA to the date they received her letter she will apply for JR claiming her costs

I think the chances of any mainstream secondary taking a child on P scales without a fully funded statement must be pretty much zero so the LA is being stupid here. They are going to be left with a child with no school place if they don't get a move on as the special schools will be full.

I would also ring the EP and explain what is going on and insist the EP come and see the child now, SA or no SA, to make sure suitable education is put in place. Again document the call and follow up in writing.

Has she got copies of recent P scale scores, home school book etc??? You know how these scores suddenly improve / docs disappear when SA educational negligence is on the horizon

I would cc the Chief Exec to any letter or complaint. The trouble with SEN officers is they only get trained on LA policy, never the law in my experience, so there is no point speaking to them - they won't know. You need to go to the Head of SEN and Chief Exec and Legal team.

If they don't back down on the phone tell them you believe their position is unlawful and ask them to get their legal adviser to ring you back to discuss it urgently - Solicitors (including in house ones) can't make up the law as they are bound by professional conduct rules.

I would think the DFE letter and IPSEA wording above should do the trick. Any legal adviser should quickly be able to look it up and tell the SEN team they can't refuse SA on this basis.

That is great advice, thank you Agnes. I've been trying to find a relevant letter on IPSEA's website, but couldn't get through to them on the helpline yesterday. I'll be trying again today! I didn't realise her DGC might be left without any placement.

She's asked for copies of his school record but the school have yet to provide them. It's a difficult situation as her own DD (DGC's mother) has LDs and is not in a position to advocate for her DC, yet my friend is not in loco parentis so all correspondence etc is still going to her DD who has difficulty understanding it all.

Wouldn't that letter count as a 'refusal to assess'? Bung in a quick appeal, they'll presumably back down, and she's then gained 6 weeks

Good point Maria! However I had a lengthy conversation with one of the powers that be at the LA today and they informed me that they are going to assess (they have known this since Monday but had yet to inform the DC's mother!)I asked whether they were going to assess for an EHCP or a Statement. She replied "EHCP". I was then able to use the info up thread to point out that the family wished for an assessment under current legislation for a Statement. Eventually she acknowledged that the child could receive an assessment under the 'old system' but pointed out to me that no child in Notts has been assessed for a Statement since September (apparently they've all elected for EHCPs). Anyway, the upshot is she is now coming out to meet my friend and her Dd next week to try to convince her discuss it with her.

Think your friend will find they suggest she is wielding undue influence. Which would help them in successfully bully the mum into agreeing (esp if she has LD herself, they might well start discussing capacity and safeguarding)

Parent partnership might well be in the LA pocket to some degree but from what I've seen, overt dirty tactics and nastiness are much less frequent if they (or some other advocacy service) attend this sort of meeting.

This is a red herring: no reason they couldn't offer to do the two assessments together. They really aren't very different: if anything, SA is easier than an EHCP.

And they still need reports from education, health and social care for stat assessment (albeit they could be one liners that say 'dc had no contact with SS' or whatever)

If your friends dd changes her mind after SA, the statement could slot nicely in the 'education' section of the EHCP

In fairness to the LA, they might have belatedly realised that all three of SS, education, and the NHS have failed this dc, and be trying to put things right in one fell swoop.

Nevertheless, a statement is still worth having, as the enforcement arrangements for EHCPs are not yet watertight. And there's nothing to stop your friend's daughter approaching SS for respite etc.

These guys might help your friends daughter to be heard, if her need for her mum's help isn't respected.

Just a slightly different view point. My DS is currently being assessed and we've opted for an EHC. While I wouldn't trust any initiative of current govt as far as I could kick it, I've been pleasantly surprised - the EHC format in our LA has been more focused on DS overall needs at home and school, and more on outcomes (although of course this is only good if the provision to achieve outcomes is clearly set out, remains to be seen!)

If you wish to appeal an EHC you have the legal right to have it converted to a statement to go to tribunal. EHCs also binding as of sept 14 and having one now avoids having it changed over later (with opp to reduce provision says cynical me )

My DH is a lawyer and no fan of doing what he's told but thinks this is OK!

Obviously your friend does have all the legal rights described above but I might encourage her to think about whether they would do better by accepting EHC.

I'm so sorry they have had such a tough time - my son is at school with a child with a fully funded statement and LDs who is above p scales in Y4. So your friends DS clearly direly needs the provision.

Good luck whatever route they choose!

Thanks Maria and poodoctor. Her main objective is to get him into a local state special secondary school. She has been fobbed off so badly in the past being told that he is making progress on SA+. I am just worried that the EHCP won't allow her DGC to access this school ( he's due to start secondary in Sept), being as specialist provision in her area is few and far between (this school is several miles away). When she last put in for SA 2 years ago, she was turned down and the LA wrote her a letter quoting their EP who was apparently 'confident' the DC would 'start making progress in the future' and denying he has complex needs. It was shocking. Her DGS is very similar to my DS, who has had a Statement since he started school (we live in different parts of the country) and would not cope in MS without it.

That is indeed awful.

My understanding of the two processes is that having an EHC shouldn't make it any less likely that he can access the specialist school. In our LA there is a lot of stuff in the front pages about education, health and care outcomes etc, and then there's a section at the back which quantifies the educational provision that will be made. My understanding is that that part is legally binding just as the old statements are, so one way of looking at an EHC is as a legally binding statement of educational needs with a lot of variably useful waffle surrounding it

I wonder if they might do better to go down the EHCP route and put their energies into fighting to ensure the specialist school is named as part of the legally binding bit?

You definitely have the right to appeal to tribunal if you are unhappy with the provision: don't know if all LAs are up front about this but if you want to appeal they must convert it to a statement so that you can.

Anyway, best of luck!