Local authority not providing what is in part 3 of statement

[Brucietheshark]

I can't get through to IPSEA.

Can anyone help, as my brain has turned to mush and I can't remember anything. I think I'm panicking.

We have ABA on the statement but LA said they were capping the amount they would reimburse us for funding it. So far, so illegal but I bided my time as the funding cap was not in part 3 and I was waiting to challenge it when/if we went over it.

Well we did go over, but only by about 15% as I am (stupidly) being reasonable, playing ball and keeping costs as low as possible. The LA person has been really fab up until now and said she would take the final figure to the high needs panel last week.

I have been waiting to hear and naively thought they would pay. I know another family in the area who kicked up a stink when their money ran out and were told to keep invoicing and they kept paying . I only found this out recently - more fool me for trying to be reasonable and keep relations good. I know their costs will be way higher as they are using an expensive provider too.

So, of course, they have just emailed saying they won't pay. I'm an idiot.

I have replied laying out my issues with this. But what I need to know is - what is the official process to challenge this failure of provision? I know and went through all the stages of stat assessment, draft statement etc etc.

But what do I do at this stage? (Apart from trying to calm down and stop imagining myself turning up at the LA offices with a muck spreader - I'm working on this).

Either go to the Local Government Ombudsman or threaten judicial review proceedings through the court. The latter would need a pre-action letter from a solicitor, but if you had to go to court your child would be entitled to legal aid for the court proceedings, though this wouldn't cover the costs of preliminary correspondence. You would however have to be sure that the terms of part 3 are pretty watertight, i.e. that they cover everything that is involved with ABA including consultants' fees.

Thank you guys.

Icimoi - I'm worried about the detail, or lack of it, in the statement. I was worried at the time, but trusted our consultant who was allowed to add what she wanted to it. Yet more proof of me being an idiot, but we'll see if it's a problem. There is possibly enough there.

Manish - thank you so much I will either give you a call or PM you for advice. We didn't need a tribunal, but also didn't agree or sign any sort of agreement to the funding cap. It might be argued that we agreed tacitly by accepting the statement.

I was happy with paying the tutors and the LA reimbursing me as it gives me much more control over things iyswim. Our consultant invoices the LA directly.

Will think some more and look at the stuff you've said about JR and phone/PM you later. Thanks again.

If the statement is unclear thats fault by the council as it should be specified and quantified e.g. case law:

"The real question ... is whether [the statement] is so specific and so clear as to leave no room for doubt as to what has been decided and what is needed in the individual case”: L –v- Clarke and Somerset [1998] ELR 129).

There is also lots of guidance on personal budgets / direct payments (in health / social care and new Act for SEN) that says the budget must be enough to cover the provision / assessed need. So if the statement says 30 hours per week the budget must be enough to buy in 30 hours per week.

You can also tell the LA if they don't like the fees to find an alternative provider and take on the contract itself. (It sounds as though yours is cheaper than the alternative so it may be worth calling their bluff on this, I do understand the desire to keep control tho)

I agree you could try make a formal complaint so you can take it to LGO.

We got a budget agreed at tribunal 4 years ago and never had anything from LA in writing since. We went over the budget in year 2 or 3. Every so often they quote this budget at us as though it is set in stone forever - and we fire back that rates have gone up since then / we have always informed them of any changes in rates and never got a reply and the budget set by tribunal was only binding until the first review. So far this has shut them up. Its well within their power to write to us each year with an agreed budget costed out, but they never do. My view is that its for the LA to make sure the paperwork is in order and a budget agreed, not for me to chase them up on it. If they don't have a written agreement with you as well as evidence they can provide the ABA for the capped rate (e.g. quotes obtained before they set the cap to show how they reached that figure) I don't really see how they can refuse to pay.

Thank you Agnes, you've helped me before but I namechange. That's all very helpful.

I forgot to add that when they sent the statement, they put in part 4 that ABA is a time-restricted intervention and the provision will be reviewed after 2 years at school, i.e. at the end of 2014/2015. I was so busy appeasing as I said before, that I just left it and assumed all the evidence of progress we would amass (and obviously there's loads) would be enough to keep it going.

They are now pretending it is 2 yrs from funding starting which is Dec 2014 on top of everything else.

I sent a very robust email in reply, stating our objections to both issues and saying we would seek legal advice and challenge this if the decisions were not reversed.

The bastards just aren't going to reply are they?

Still can't get through to IPSEA. Is it worth getting a SEN legal bod at this stage? Or can we just write to them ourselves. Tbh with my current track record of mishandling all this, I suspect legal advice may be needed. Can't afford it of course because they are refusing to fully fund the sodding programme.

Ok
Try emailing IPSEA and booking a call
SOSSEN is another charity or NAS Education line.

The LA can't remove / change a child's provision without a review / reassessment of the statement or ceasing the statement. They have to do a review of the statement with reports and have recommendations to change the provision and say what provision they will put in instead. It makes no sense to give a deadline, children don't develop skills on schedule, if they did they wouldn't need a statement in the first place. Autism isn't a time limited disability!

The only way they can change the statement is to hold a review or reassessment - look at SENCOP on annual reviews / reassessments - they would need to get advice, allow you to put views, hold a meeting, make a decision, follow a proper process etc

You could go to Local Govt Ombudsman but that might be too slow

If they pull ABA without an evidence gathering process, and without advice of what the needs are and what provision is needed instead of ABA then get legal advice for judicial review. Contact Maxwell Gillott or Irwin Mitchell etc - I think you can get legal aid for judicial review in the name of the child so it may not be assessed on your finances.

If you have a letter saying we will stop funding ABA because it is time limited but it has no advices or evidence to support it and no reasons other than ABA is time limited - if there is no professional recommendation for an alternative then get a Solicitor to do a letter to threaten to JR that decision. Thats not in line with SENCOP.

Chances are they will then call a review and cobble together evidence etc but at least that way when you get the decision after review or reassessment you get a right of appeal to the tribunal

You may be better arguing for reassessment as that is like statutory assessment a 6 month process (and you may be able to drag it out longer). They would have to fund the statement until after the review / reassessment and when they send the formal decision proposing changes to the statement which has a right of appeal. If they won't pay the fees you could ask the LA to organise the tutors direct during the review / reassessment process as the duty to organise the provision in current statement will remain until its formally changed.

If you have to pay for advice I would recommend Fiona Slomovic as much cheaper than Sols (if you can't get legal aid). She really helped us when we thought we were going to have similar situation after one AR but in fact when I threatened JR (and the LA EP backed us that ABA should continue given progress and LA inability to provide anything of similar quality) they backed down. It may be worth trying to speak to Fiona and get a quote - Advocacy and Mediation Partnership because she was great when we went to her with similar situation and she may give you some initial advice on the phone.

You do need some help though as they are clearly going to play hard ball and you need someone who has seen this all before.

I would FOI the LA now for their complete file before they start to cobble some evidence together and pretend they had this already. You want all the emails, phone calls, meetings etc they have held - everything. Hopefully this will show they have made the decision without any proper process and support any JR / complaint to Ombudsman. You can write direct to the data controller at the council or Chief Exec Office - I wouldn't tip off the SEN team you are requesting the file

The FOI advice above is the best as I believe the SEN team misjudged what they wrote in private emails. They basically put they agreed on the type of school I was asking for ( non maintained special) as they said she would need very small classes. That is not available in the mainstream they put in part 4 as it had classes of up to 90. I asked for FOI and saw their emails to each other. Get this done as late as possible without prior knowledge and you may find a gem. Good luck

Thanks everyone. I'm ill at the moment, so neither acting nor thinking straight.

The FOI thing sounds excellent.

Anyone still about?

I've JUST realised that we had DS' annual review on 13 March.

We all agreed various minor things and, on the whole, we agreed very little will change in the statement. However, I have heard nothing since. Side issue - wtf is this taking so long, is that a problem or could it work in our favour?

Could this be a good thing in that we can challenge the revised statement and have a quicker route to tribunal? Or at least the threat of that?

But then I'm not sure on what grounds we would be challenge the statement if it has hardly changed from one we agreed. Perhaps the lack of quantification that we have been made acutely aware of owing to their failure to deliver what was agreed??

Am still ill so possibly getting myself confused here.

No you are right once you get the decision after the review - whether it be a new statement or a decision not to change the statement you get a right of appeal. At that point you could challenge the wording is not specific enough by appeal to tribunal if you have to.
In my experience it always takes a long time for them to do the paperwork, probably because it's not a timescale LAs have to submit data on / get judged on, it's the work which tends to go to the bottom of the list, especially when there's little change. The sen officer will probably have had several reviews since where more urgent changes are needed. I've waited 11 months for some minor amendments to a statement after annual review!
I would suggest you write and ask the SEN officer to 1. pay the ABA costs to date in full or point out which part of the statement wording you are in breach of 2. Say if they don't pay all outstanding amounts within 7 days you will make a formal complaint, including if necessary to the ombudsman 3. Say you will be continuing to make sure the terms of the statement are met by continuing to employ the tutors at the current rate and will be submitting the invoices as usual and expecting them to be paid in full within 7 days.
Then sit back and wait. If they want to change the statement or agree a new budget they need to come to you with firm proposals showing how they intend to provide what's in the statement for less money. It's not for you to do that job for them.
It does work in your favour the longer it takes because any lack of clarity in the current statement is their fault.
It also means it's unlikely they can call another review or reassessment without that looking really dodgy given you have just one and the provision was agreed as being appropriate.
If you get a statement with provision changed / reduced which has not flowed from any evidence presented at the review / goes against what was discussed then threaten JR ( and appeal).
We had a similar situation and wrote to the most senior manager and in the end after several months correspondence it all went away - ultimately they just relied on parents not knowing their rights / being prepared to challenge.
When you get the statement I would appeal the bit that says it's time limited if that's still in there on the basis the provision has been found in March to still be appropriate, there is no alternative and it can be reviewed at the next annual review in the same way as any other child.
For what it's worth tribunals do not look favourably on abrupt changes to provision, if the LA wanted to change provision it would need to set out clearly what it was changing to and a transition plan. It's not reasonable for any child, let alone one with autism who is used to being taught in a particular way to have the rug abruptly pulled from under them. When we went to tribunal the panel asked the LA how it intended to transition DS off ABA (which at that point we were paying for) onto their own provision and the sen officer just looked blank as it hadn't occurred to her any sort of plan or transition would be required. It made it look very clearly a decision made without any thought to DS needs or welfare, but just about money.

Thank you so much Agnes, I feel we can get somewhere with this now.

Still no reply to my email but will take a little time before either writing to them or perhaps trying to contact Fiona Slomovic.

Manish - thank you so much too, I will still send a PM or call. x