tribunal, LA and non educational provision

[oramum]

I am appealing dds statement (part 2&3) through sendist. the hearing is now less than a month away and the LA are gathering evidence against our case.
the LA are trying to argue that SALT and OT are medical needs and not educational, hence them not being specified in part 3.
However the LA EP has had the nerve to recomended we attend a parenting course. this is written in her assessment report and is now included within the working document.
do you think it would be appropriate to ask how they can justify this as being an educational need? it just seems crazy that they will fund a parenting course but not dds therapy!

lol

SALT and OT as a medical need is an easy peasy win (to some extent. The tribunal will have little time for it provided you can show that the SALT and OT is required in order to enable dd to access her learning).

If they are funding training to support the child then they should look to spend that money where it will make most impact i.e. a TA!?

LAs all over the place are forcing parents to tribunal with nonsense arguments simply to try and head them off or push the assessments etc into the new law.

From the SENCOP
8:49 Case law has established that speech and language therapy can be regarded as either
educational or non-educational provision, or both, depending upon the health or
developmental history of each child. It could therefore appear in either Part 3 or Part 6 of
the statement or in both. However, since communication is so fundamental in learning
and progression, addressing speech and language impairment should normally be
recorded as educational provision unless there are exceptional reasons for not doing so.59

I have indie reports from both salt and ot stating that they are educational needs and specifing and quantifying the therapy needed.
Even the LA salt report states that dd needs direct therapy ffs!
plus if the salt was not an educational need than why have the school referred dd to salt 3 times and why is her ta working with her on phonology?
The LAs defence is that dd is progressing without salt intervention and is fulfilling her potential (from EP report). Although she is the same NC level in reading that she was at the end of yr 1 and she is now in yr3.

Speech therapy is an educational need
www.ipsea.org.uk/apps/content/HTML/?id=123

Are they trying to put the parenting course into part 3 of the working document? If so, that's utterly ludicrous. But it could be quite fun to look for the most expensive parenting course going, make them pay for it, and then pull a sickie.

How about an MSc in ABA?

yes they have specified 'the incredible years programme' in part 3 of the working document!
I wonder how they are going to justify this as being an educational need, yet they are trying to claim salt/ ot arent.
the reason for me needing to attend this parenting course is because my dd meltsdown at home due to frustrations regarding her learning (have this in writing from pead) but apparently I am not setting firm boundaries. despite explaining to the EP that dd does not respond to this kind of deterrent and by doing this I am basically setting her up to fail, as the meltdowns will carry on regardless. (again this is documented by pead).
and if this were the case why not recommend a SN parenting course? why recomended a parenting course that regards to NT toddlers ffs.

haha nenny and star I shoukd ask to attend a ABA course, would love to see their faces

Never say "no" to a stupid idea pretending to be a sensible, reasonable measure. Say "yes, but.... and.... Because...."

Sign up for an online parenting course now, then you can truthfully tell panel no thanks, you've already taken that suggestion on board.

As above about finding an expensive useful, highly-specialised parent-training provider. A SN parenting course might be useful in helping you to -swap Tribunal tips build links with similar families. Of course, you'd need school staff to come on the same courses with you, to ensure consistency of approach .

This, for example

Having recently issued tribunal proceedings against our LA our representative provided by IPSEA provided this, not sure if it's any help in your case:

The judgment of R v Lancashire, ex Parte M (1989) established the principle that only in a very small minority of cases will SaLT be accepted as non-educational provision by a Tribunal and this is reflected by the SEN Code of Practice (2001) which states:

“…since communication is so fundamental in learning and progression, addressing speech and language impairment should normally be recorded as educational provision unless there are exceptional reasons for not doing so” (SEN CoP, 2001, 8.49)

Meir I have verbally agreed to attend the parenting course. I have said that I am willing to attend on the basis that it would be beneficial for dd. I am planning to ask the EP why she thinks this course would be beneficial and why she is not happy for me to carry on with the advice from pead (including ensuring dd is safe when she melts down, reassurance afterwards, plenty of eye contact at her level, discussing feelings etc.) and also how tgey can justify it being an educational need.

thankyou sparkle

The LA cannot require parents to provide educational provision. This info from David Wolf sen guide:
PARENTS (OR ANOTHER AGENCY) CANNOT BE REQUIRED TO MAKE EDUCATIONAL PROVISION BY A STATEMENT
34. By section 324 of the 1996 Act, the LEA is under a duty to arrange the provision in a statement unless parents have made suitable alterative arrangements.
35. Accordingly, a Statement cannot lawfully specify (in Part 3 or 4) provision which is to be made by parents: A –v- Cambridgeshire [2002] EWHC 2391 Admin, [2003] ELR 464. For example, a Statement which specified a programme for autistic children which the parents required to deliver on behalf of the LEA (i.e. not simply organise with funding from the LEA) was unlawful: DM & KC –v- Essex [2003] EWHC 135 Admin.
36. On appeal, the Tribunal should look at what a statement requires of parents and ask whether it is “educational” or “special educational provision”: KW –v- Rochdale [2003] EWHC 1770 (Admin). See thus Tottman –v- Hertfordshire [2003] EWHC 1725 Admin [2003] ELR 1725 ([2003] EWCA Civ 1893) in which the Tribunal lawfully found that there was no need for educational provision out of school hours (there was merely a need for “consistency of approach”).
37. Note thus that Statement which specified a “24 hour curriculum” (or equivalent) could thus not lawfully specify only a day placement. DR –v- Sheffield [2002] EWHC 528.
38. Similarly, where it was accepted that the child required the educational provision set out in Part 3 on a out of hours basis, that could not lawfully be achieved by simply a reference in Part 6 to a social services “package of care” (especially where that was unparticularised): HW –v- Bedfordshire [2004] EWHC 560 (Admin).

Parenting courses can be suggested under a social care assessment (s17 Children Act) for a child in need (all disabled children are a child in need). But that's social care not education and would require a different assessment led by social care.

I would probably sit tight and tell the tribunal on the day you don't believe it has the power to require parents to provide educational provision.

That said we have ABA at home and it's a real help in developing parenting strategies. But that is by choice.

Sounds like they could usefully write into the statement the need for the EP to attend a course on ASD. It's so well known that children with ASD do tend to melt down at home after a day of trying to hold things together at school, and as a result of difficulty in dealing with the transition and general frustration about problems with learning and communication, sensory difficulties, difficulties in coping socially, etc. Any EP who doesn't know that and instead chooses to attribute meltdowns to parenting doesn't know what she's talking about.

Bumping this post as it has relevant case law as LA are requiring me to supervise the education of my child at home as part of eotas. Finding relevant case law as stage 2 complaint with the LA thet gave said despite taking legal advice they cant decide...

@Madthings as well as some of the case law above, there is more recent case law you might want to read. The most recent mentioning the LA’s duty and inability to compel parents to deliver provision is HJ and MM v Birmingham City Council (SEN): [2025] UKUT 323 (AAC) which states “…the legislative framework for EHC Plans places the duty on the local authority to secure the special educational provision reasonably required to meet a child’s special educational needs. An EHC Plan cannot therefore stipulate that any provision in Section F is to be made by a parent.”

JR is generally the better route. The normal timescales of the complaints mean it often isn’t a suitable remedy because it takes too long.

Thank you. I literally just got stage 2 complaint respinse and whilst they upheld all other areas of my compmsint which wrre about a child in need assessment they refused to do and they said he didnt meet the threshold for Children with Disabilities... when he clearly does... he had conplex needs fgs.

The part of my complaint about it being illegal for them to require me to supervise the Educational provision in the home they have said rhey cannot respond to because "despite a legal meeting and subsequent email exchanges no clear legal advice has been provided therefore the investigating officer does not feel able to reach a conclusion."

Which is just nonsense AND there was in independent person appointed as part of the complaint they were together overseeing and attending all meetings but they were not allowed to attend the meeting with the senior solicitor due to the 'legal standing' of the meeting.

That is such nonsense. I have tribunal in March so hopefully I can get the wording in F to say LA have to provide supervision. But my only other option is LGO. Its just exhausting. And I am unable to work as I have no support, child at home full time, hos education is currently 9 hours going up to 18 but its all in the home and must be supervised by me or a 'responsible adult' and rhey know i am the ONLY responsible adult as solo parent.

@Madthings the LGO isn’t your only other option. I would look at a pre-action letter, then JR if necessary.

Even if staffing isn’t explicit in F, it is necessary to deliver F (and for the LA to comply with their duty to ensure DS receives a suitable, full-time education under s19 of the Education Act 1996) so is still the LA’s responsibility.

The LA also can’t force you to allow provision at home if you don’t want to. See R (JSH) v Westmorland and Furness Council [2024] EWHC 3362 (Admin).

Thsnk you. Unfortunately small wouldnt be able to access providing out of the home. Section F specifies (working document agreed) 18 hours of educational tuition in home and community. The providers he has come to home with the aim at some points of taking him out but thst is a long term aim. And rhey wont consistently be put. The tuition is to be at home with trips etc once he is ablem this is covered in EP report which atates he us unlikely to consistently be able to engage or attend provision outside of the home so provision needs to be flexible to thst. And it is. I love the providers they are great. Its 2:1 in home but they LA are still saying that for any providion thst takes place in the home there needs to be a 'responsible adult' in the home at all times as well. They know thats me.. and they have said if I cant provide that they wpuld look at providers outside of the home.. but he then wouldn't be able to attend. He has already missed 18 months of education and I am reluctant to push it and they take away the provision that IS wirking, he is engaging, building relationships. Autistic, adhd, pda very complex sensory needs with verbal and motor tics, absence seizures etc he was traumatised by school and is making SO much progress.

So I do want provision at home but I think they should provide the 'responsible adult' to supervise. But finding relevant case law is tricky there is lots about parents not providing education.. technically I am not bit I still have to be here.. I think that is a breach of children and families act and of equality act as its indirect discrimination on me as I wouldnt have to supervise if his provision was not at home. And it places an undu burden on me. But I am not a lawyer. Just a late diagnosed ND single parent. Desperately juggling multiple children with needs.

Is judicial review easy to apply for i thought it was expensive?

@Madthings the agreed amendments in the WD aren’t enforceable yet. The existing finalised EHCP remains in force until another version is finalised. Although the LA should be providing a suitable full-time education under section 19 of the Education Act 1996 anyway and that can be enforced.

If another adult on top of 2:1 is required, the LA is still responsible for that. I know DC with 3:1 and one even with 4:1 outside the home. You are overthinking. If you were to be required to be present, you would be providing/facilitating provision. You can’t be forced to do that. It is the LA’s duty.

If provision at home is required, then that is what is required. I just thought I would mention you can’t be forced to accept it in case you didn’t want that. Sometimes LAs tell parents there are no other options.

JR proceedings themselves would be in DS’s name. Therefore, he can be eligible for legal aid in his own right. This doesn’t cover the pre-action letter. That is in your name, so legal aid is only possible if you yourself are eligible for legal aid. How much firms charge varies and they can be quite expensive. If you can’t afford that, you could get on SOSSEN’s list, but some LAs are sometimes ignoring letters not done by a legal aid firm because they know parents will still have to find a legal aid firm to take the case.

Ok I am going to look into it. And debate on putting in terms LGO complsint.

Tribunal is March 2026. It was meant to be sept 25 but was cancelled 3 days before because the LA didnt submit working document or case review form. We both had to resubmit. They have NO evidence. The EP reports and OT report are both LA commissioned and accepted as k documents. They came to me and offered eotas so I is now blank and we had a case management review where they agreed thst and all of section B. They told the judge at case management they wont make further changes. But they wrre told to continue to work with me and obviously start providing education hence the provision in the home.

There is no AP or school that can meet need. All have said no so they cant find anywhere for him to go.

I have quoted law, case law and just get nowhere. So I think i need to look into legal aid. I dont know how much a pre action letter would cost so need to have a look. I am solo parent, currentky signed off work (ironically I work in complex needs school) reliant on UC, dla etc.

They just say that LA policy is that all educational provision in home must be supervised... I have pointed out my child is already 2:1 and they still say a responsible adult is required to be present in the home. If they take him out I am not required to be there but an adult is required to be able to be at home if they have to return ie before the end of a session. He gets 3 3hr sessions but at moment manages about 2 hours each time. Today was less but thats in line with profile of needs and we have been building since Sept, he is doing amazingly. We add in another provider for another 3 3 hour sessions in December. But again it will build in line with his capacity.

The LA have said, and are working to agreed WD following case management review and my formal complaint. My 2nd one after the ehcp itself took 44 weeks... and he ended up out of school. I formally asked for section 19 providion using ipsea template but got nowhere. They just kept saying it was school and school just said they had no funding for AP. Which is in current section F but wooly enough to not be provided. So school said duty was on LA, correctly imo, but LA said school and he got nothing for a year. Honestly its been a nightmare they dont care about the law.

The current section F is obviously written for IN a school which he cant attend. I might look at wording and see what I can push.

They do rely on parents giving up.

Section 19 provision can be enforced via JR too.

A pre-action letter can be over £1k. Check if you are eligible for legal aid yourself. I would consider JR before complaining to the LGO.

As well as the LA EP and OT reports, do you have other evidence?

Diagnostic reports wtc. The EP report is brilliant it has formed section B along with duagnosis reports feom Help for Psychology. The OT report is good too. I was supriaed as LA commissioned but the EP had seen small 2 years previously and school and LA had not followed his advice so he was not happy at deterioration and the OT said they had 'briefed ' that they wanted a report for mainstream but she it was very clear reading reports that was not the case. They put in much of what she recommended but she specified weekly swimming lessons in a sensory friendly pool with ND pda trained teacher.. the LA put it in in then took it out.

I have got lots in re sensory supports all staff to be ODA trained and trained re declarative language. The tuition, forest school. All learning child led using PACE techniques. 6 weekly meetings with LA, providers to review and make sure are adapting to his needs. The adult ratio, that he can build up to have 3 sessions a week with 1:1 support in groups no bigger thsn 6. All directly from the EP report.

They are quibbling on wording re supervision, the swimming and EP involvement. The EP stated as he has a spiky profile and no one has been able to assess cognitive ability that he should have ongoing EP involvement to build up a relationship over at least 4 visits, to try and get a clearer picture of his cognitive functioning and ability so that we can make sure the package is meeting needs. In section B they have lut one of his needs is adjust to assessments because no assessment has been able to be made... so that provision meets a need they have agreed and put in B.

He also said also said staff supporting need fortnightly, reducing to half termly meetings with EP to discuss how the 'learning in the moment" is going and to be setting and reviewing regular targets. They tried not to put this in. Said it wasnt standard and went back to the EP over it. He stuck to it and they did then put it in. Also regular planning and involvement with me, communication. There is ongoing OT involvement regarding creating a sensory passport as his needs are so complex and a Communication passport. Its detailed all staff working with him must read them. I have detailed transition supoort and even MDY meetings are agreed in section F all as per the EP report.

They tried to put sod all in and I just went through matched to need and quoted EP report word for word.

I have been firm and consistent, requested coproduction meetings etc and consistently used the complaints procedure if necessary and when ignored. And they have gradually given in on some things.

But the supervision they are not budging on or the swimming. Swimming IS in section F already from an older OT report but again not quite soecifuc enough which was why I was going to tribunal to get F more specific and for specialist but then situation deteriorated in meantime. They then reassessed after PDA diagnosis but I bet they wished they never did.

I am hoping I can get very specific wording in section F re supervision in my evidence i have included all communication showing lack of specifity is meaning he doesn't get provision and how they are making me supervise. So am hoping tribunal can put it into F that supervision is to be provided by LA. But obviously thats not til March and I just dont know if tribunal will do that.

I know another family with eotas having the same argument with the LA. We are Norfolk.

Even if it doesn’t end up in F, if it is required for the LA to fulfil their duty to deliver F, the LA still has a responsibility to provide it. Sadly, most don’t unless forced because, as you say, LAs hope parents will give in.

You don’t mention anything about ongoing SALT or CP provision. Worth having those covered. Don’t forget professional time for things like an EOTAS/EOTIS co-ordinator, updated advice and information from all involved prior to AR, time for professionals to prepare for as well as attend ARs, etc. And any equipment, tech (and training to use any assistive tech), resources, subscriptions/memberships, budget for activities/enrichment, etc.

SOS SEN say that their letters are rarely ignored. Even if parents do have to be referred to legal aid solicitors, it is easier to find one to take on a judicial review than it is for, for instance, a tribunal, because it is paid at a better rate and also they can be dealt with by solicitors with public law legal aid contracts as well as education law contracts.