Help! SENDIST Parts 2/3/4 Appeal; LA changes its school choice at the eleventh hour!! Pros and Cons of submitting Late Evidence v/s seeking a hearing postponement

[ChrisInNeed]

My apologies for the long post.
I have tried to focus on important points. The stakes are huge and so keen to make sure I dont miss something significant.
I would be very grateful for any thoughts and guidance.

Background:

Part 2/3/4 Appeal - Hearing date 16 June;
Final Evidence date was initially 16 May ; LA got an extension until 23 May to allow submission of its experts reports and also to submit a proper response to my reasons for appeal. (My reasons for appeal were detailed but until yesterday the LA never submitted its response to it!) I submitted all my indie reports (EP, SALT & OT) by the 16 May deadline

As late as 22nd May, the LA was maintaining that the existing mainstream school is able to meet DS's needs and so it is their choice. (I have this in writing)

Yesterday at evidence submission deadline, the LA have now nominated another mainstream school with an ASD unit. (Ofsted (Sep 13): Grade 3 - Requires improvement)
A teacher from this ASD unit came to observe DS in school yesterday morning and by 5 pm the LA had changed its mind!

This is definitely not the right school for DS. As mentioned his primary need is S&L not ASD. I understand the ASD unit focuses on those with severe ASD and lower cognitive ability than DS (who has "average" non verbal cognitive ability - more below).

My school choice is a non-maintained (charity) specialist S&L school where he has firm offer placement. (Ofsted: Grade 1 - Outstanding)
There is a significant difference in the costs between the LA's option and mine.

My proposed strategy is

• Visit the ASD unit with my indie EP and/or SALT asap. (As midterm next week, expect the earliest this will happen is in the first week of June. My indie EP & SALT have very busy diaries so could be in the second week of June i.e. the week before the hearing date!)

*Request the Tribunal that I be allowed to submit my Statement of Case / Parental comments/Further evidence on the hearing date.
(As the LA were granted an extension until 23 May to provide a proper response to my grounds of appeal, I in turn was allowed until 2 Jun to submit my Statement of Case. This was on the assumption that the existing school would be named. The Tribunal Judge had noted that I could seek a further extension if the LA changed its choice.)

• A possible option is to seek a postponement but I am concerned that doing so has potential risks and drawbacks.

• There is no time for a FOI request on the proposed school (I am told FOI allows school 20 working days to respond)

Questions:

1. What is the latest date I could request to be allowed submit late evidence?

In the circumstances, I hope it is reasonable that I should ask to be allowed to submit evidence on the hearing date?

1. If submission of late evidence on the hearing date is indeed allowed, is it treated seriously or tends to get brushed aside / discounted?

1. Is it in my interest to request for late evidence submission or to request for a hearing postponement?

My thoughts on the pros and cons. I would welcome views from others:

Pros of Late evidence / Cons of a hearing Postponement:
-Less risk of delay in hearing date / appeal outcome & its implementation

-If I request a postponement I potentially have no control on when the new date will be - Could be September!

-LA have less time to prepare/update their case and so possibly again change their mind re school choice.

Pros of a hearing Postponement / Cons of Late Evidence:

• I have more time to look into the LA's proposed school; Do a proper FOI request and get all the answers

• Without a postponement, in the short time, I may have only limited information on the ASD unit by the hearing date and so may not have the full facts to argue why the ASD unit will not meet DS's needs adequately

• If late evidence is not treated seriously/brushed aside, it may be better to request for the hearing to be postponed

1. Is there a different strategy I should adopt? Are there any other actions I should take?

1. Can SENDIST order a mainstream school to respond to a FOI request faster than the 20 working days allowed by law?

1. The LA have now requested another extension (until 7 Jun) to be allowed to submit their OT's evidence. (The LA's NHS OT assessed DS only on 20th May - no standardised tests, just a 1 hour observation). Can I / Should I object to the LA being granted another extension?

1. The evidence deadline was 17:00 yesterday. All of the LA's emails with their response and further evidence were sent after this (split over multiple emails between 17:05 and 17:50).

How strict is the Tribunal in enforcing the deadline? Is it worth objecting to the delayed submission? What is the best I could expect to gain by doing so?

Additional Background Info

DS(7) has severe specific S&L impairment (receptive & expressive), ASD, dyslexia.
Average nonverbal cognitive ability (43 percentile per WNV). Still on P levels in most areas:
More details here: www.mumsnet.com/Talk/special_needs/2075961-Can-P-Levels-scores-using-PIVATS-be-used-to-determine-if-academic-progress-is-adequate
DS also has significant OT needs (issues with fine and gross motor skills, sensory, VMI; Individual OT); Indie OT has recommended weekly 1 hour 1:1 direct OT

Although ASD, his S&L is the greater need (ASD is mild, behaviour very good)

My witness list: 3 indie experts (EP/SALT/OT) + Rep from nominated specialist S&L school (Tribunal has agreed to allow me 4)

The LA Have yesterday submitted a request to be allowed 4 witnesses: EP, SALT, HT of their proposed school with ASD unit plus SENCO of existing school as the fourth witness

I went to 2 tribunals last month once for Dd3 and once for a child I work with as a witness.

At both there was late evidence submitted on the day, my LA are well known for doing this so I pre-empted it and put something together that countered their evidence.

In both cases the evidence wasnt spoken about much during the hearing but it was certainly taken into account when the panel made their decision.

Sorry havent any advice for you but hope that helps a tiny bit.

Good luck

What a nightmare for you. I had a similar thing happen to me about 3 weeks before tribunal when my school choice pulled out and the LA then named a school with a u it. I was lucky that my elder son was at this school so knew the history of the school plus the son at tribunal had gone there for 6 weeks before i pulled hi out.

I submitted late evidence at my tribunal last month , I had tried before the hearing date but as the papers get sent out to the judge about 2 weeks beforehand it was sent back to em and I was advised to do it on the day.

Regarding getting an adjournment, probably now wouldn't be sept and you would have the headache of ensuring all of your witnesses were available plus gives the LA more time as well.it sounds like you LA are being quite strong in opposing our school choice. Do you know the costs of the LA unit placement? They can be quite pricey - my sons was nearly £20k a year and then he would have needed OT and salt on top. My school still way way more expensive but as tribunal ruled it was the only school that could meet his needs we won.

Wish I cold give you more advise, it's such a stressful time and you must be really feeling it at the moment. Plenty of guys on here very experienced so sure more advice will be coming.

Just to add that the LA's nominated school has had three successive "Grade 3 - Requires improvement" Ofsted ratings over the past five years - (May 09, Oct 11 and Sep 13)

Any idea if the Tribunal take this into consideration?

My nominated school has a "Grade 1 - Outstanding" rating in the most recent inspection in Mar 11. (Grade 2 - Good in the one before that in Sep 07)

In the judgement they did mention the ofsted ratings of the school but how much it actually made a difference to the outcome i don't know

Thanks bjkmummy.

Re Costs:
-the LA's document states the ASD unit's cost at £20.5K (excl. £10K EFA) + transport £4.4K (as its 2.2 miles away it appears they have included the cost of the school bus)

Its not clear if they have included the significant extras he will need here (SALT, OT, specialist dyslexia teacher, HLTA etc.), if indeed the school can meet his needs adequately.

-my nominated school costs £39.5K (excl £10K EFA) all inclusive of SALT, OT, dyslexia teacher etc. LA claim transport will cost £32K but this appears to be inflated; Its a 25 miles trip taking just under 45 minutes.

Also to clarify my statement "This is definitely not the right school for DS." This is on the basis of a quick visit I had made a year ago - just out of interest. When I observed that the pupils there had a much more severe ASD than DS it was clear to me that he will not get an appropriate peer group. I am open minded and things may have changed so keen to make another visit with the indie EP/SALT.

I would visit the school again, just so that its fresh in your mind. My school was given as in the LA choice he would have had no suitable peer group and would have been the most able child. There would only with him have been 3 kids in there full time and one was non verbal.

My school cost £42k including OT and salt - transport was 27k - LA was about £20k with no OT or salt, school local so they tried to argue no transport till the panel shot them down and told them no way he could walk to school!

As they ruled my school was only one who could meet his needs the costs didn't come into it.

With the dyslexia teacher, I know someone who sent their child to an asd school who didn't have a specialist dyslexia teacher so LA order to pay for that as well. The cost was an additional £10k so I would try and get as much of the costs as you can.

Doesn't the LA have to get permission to change its case at this stage?

I had a late naming of the LA preferred option. My DH and I visited separately, the OT visited to carry out an environmental assessment and my EP also visited for several hours and requested masses of info. Ruth (Birnbaum) has also written a book on choosing sen school which has the list of questions she asks.

Essentially it is harder to win at tribunal the more 'suitable' the LA named option. M/s is less suitable than m/s with unit and so a stronger case. You have to prove (easier if experts have evaluated and written reports) that it is unsuitable. Tribunal would give you permission to submit any extra reports on the school - including your own - on the day of the hearing as the LA ought to have named it earlier.

Many thanks Keepon.

I will refer to the book you mention.

My concern is what if the nominated school is unable or unwilling to be co-operative and provide complete & honest answers to all the (relevant) questions I raise, in time for the hearing.

Is there anything I can do to help ensure that I get full and honest answers promptly?

I don't think FOI will help as time is limited.

In the circumstances, can the Tribunal order a mainstream school to provide full answers by a certain date i.e. in time for the hearing date?

If your experts can visit in time I would be tempted to keep the date.
As the LA told you about the new placement after the deadline for evidence then you should claim wasted costs of any subsequent visits and reports by your experts because they should have told you before you had to put your final reports in on 16 May. I'm not sure whether you have to ask for costs at end tribunal or can ask the judge to make a wasted costs order now.
I would do a request for changes form asking for school info to be served by a set date eg weds after half term with your updated evidence say a week later (weds before tribunal).
Personally I wouldn't leave it until the day I think it's good form to give the panel a chance to read your / expert views before - the panel will be better prepared and you can't guarantee how much you will get to say on the day.
Given you are asking for more time I think you can refer to LA being late with evidence but there is no way the tribunal won't allow it, with OT again I think it would be seen as petty not to agree to some extra time as you are asking for more time too. However i think until 7 June is too long. I would deal with it via costs eg if your OT needs to do addendum. Also it's in your interests to know what the OT will say in advance rather than on the day. You could say you will agree extension until 1 June but 7 June is too late eg to narrow issues / agree working document. You can say that you want to leave enough time for your experts to see the OT evidence in case some points can be agreed ahead of tribunal.
Tribunals are reluctant to have 4 witnesses as it increases risk of going over a day, but as you have 4 I can't really see you can object.
I would be agreeing to their extensions on basis they agree to your requests for info / more time etc but making it clear to judge the extra costs the late change of school and late evidence has created. Get your experts to invoice this separately very clearly.
There is always a last minute scramble by LA and mostly tribunals do allow stuff later than they should, I would use lateness as way negotiating what you want.

@Agnes: Many thanks for some brilliant insights. Very helpful and much appreciated.

A few more questions please.

Re Delay in submission: Just want to check that you do believe that the 10-50 minute delay in the LA submitting their response & further evidence after the 5 pm deadline on 23rd May is significant? (To clarify, the Tribunal had previously agreed to extended the 16th May deadline to 23rd May)

Re Submission of further evidence: I concur with your view that it is preferable to submit it a few days before so that the panel can be better prepared before the hearing. However bjkmummy mentions above of her experience where she was told all papers are sent to the Judge about 2 weeks before the hearing and so the further/late evidence was returned to her and she was asked to bring it on the hearing day. I am wondering if there are any 'Tricks of the Trade' to help get the further/late evidence to the Panel, say 5 days before the hearing?

Re Witnesses: I dont have any objection to the LA's fourth witness. I am just wondering what is the motive of bringing the SENCO of the existing school, who so far has been firm in stating that the school can meet DS's needs. Now that the LA have overruled her views, I am a bit puzzled as to what role she is expected to play and the motive of bringing her.

Re OT Report: You mention ".. if your OT needs to do an addendum". Pardon my ignorance, but what reason(s) would require an indie OT to do an addendum following the NHS OT's report

I understand the NHS OT is on leave until 2nd June so the earliest she can now possibly submit is 3rd/4th June. I did meet her when she assessed DS at school on 20th May and that point she did say that she would be completing her report by the 23rd May deadline. As such surprised and disappointed that she hasn't.

This is turning out to be a nightmare.

Just heard from the indie EP and unfortunately she has a busy diary and unlikely she can visit before the hearing. (There is a light possibility of 12th Jun but cant confirm until early June. In any case looks like 12th June may be too late anyway as very little time to prepare for the hearing on 16th June.) The indie SALT also cant make it.

Which of these two is the suggested way forward:
*Going ahead with the hearing just based on my personal visit to the LA's choice and without my indie EP & SALT having visited it?
or
*Seek an adjournment (which entails a number of risks & issues noted above and probably also extra costs)

Is there any other option I am missing?

Stakes are huge for DS's future and I am desperate to get it right.

I'd go on my own and take copious notes/photos etc of the visit. When you get home map the provision against the indy ep's report. Be as honest as you can in relation to "adequate education" and "accessing the national curriculum". Mention any good points (like cheerful pictures on the walls?) as well as the many bad ones I'm sure you'll find, so that the document you produce for submission to Tribunal at least looks as if you attempted to be totally fair.

If this placement was the perfect one it would have been suggested a long time ago and Tribunal wouldn't even be on the table. You know this & so do the LA.

Delaying the hearing gives the LA time to come up with another 11th hour trick. This may not be the last you face!

The tribunal will understand from the paperwork that this has been sprung on you very late in the process and are aware of how full all experts diaries get (both LA & independent).

Do go and look at the school with unbiased eyes though - if only because I've learned it's not always the placements that look initially look best on paper that are the ones in the end that best suit our kids as staff attitudes/kindness etc are so hard to successfully document.

I suppose I was thinking your OT may want to write something about how the new school proposed is not suitable

I honestly don't know whether a tribunal would refuse to allow evidence given the deadline has been missed twice, usually will say that if prejudice can be dealt with by costs / postponement e.g. paying for costs of postponement / extra visits / reports they will do that. Tribunals do (wrongly in my opinion) seem to allow last minute changes of placements / last minute evidence to be given on the day.

Can your SLT and OT have a telephone appointment with the Head and SLT / OT at the proposed school? That plus your visit, request for docs you might need to see by x date etc may be enough

You want to find out what class your child will be in, what the peer group is like, levels those children working at, how often SLT / OT come to school and how many children at the school they see each time.

You could raise your complaint about 4th witness and suggest the LA swap witnesses - you could say you are concerned the tribunal will not be able to get through the evidence within 1 day. The tribunal may agree the current senco now has no relevance.

You could ring SENDIST on Tues and find out what the chances of pushing back just a few weeks is - sometimes they may be able to move things e.g. swap with a case that needs an urgent date. You would need to get your experts availability.

Its a few years since we went to SENDIST and it has changed but I think 5 days before is very reasonable given the curve ball just thrown at you.

You need to get request for change form in with requests / reasons and perhaps try and get tel hearing to set out dates for remaining directions. However if you kick up too much fuss the Judge may just postpone it of own accord if thinks it won't be ready to be heard.

Given the late naming you are placed at significant disadvantage and it is in the best interests of the child that Indi experts submit email requests for specific information to the school and have a subsequent telephone meeting if necessary.

I would bend over backwards to meet the original date - gives extra force to any requests (and how reasonable they are seen to be). I need this in order to make this date iyswim. Remember the court will have already deployed resources by this stage. It would be you who wasn't ready not the LA if you asked for deferral. The LA will claim that they are ready to go. You have to roll with the punches not hope to avoid them all

I doubt that the tribunal would refuse to admit evidence that had been lodged a day late. I think in this case if you applied for leave to lodge late evidence to answer the new case put forward by the LA you would get it.

Is this for a school place in September? If so, it could be worth trying to get the hearing pushed back to July, because that won't prejudice your child.

However, what do your EP and SALT say about the general principle of education in a mainstream school with a unit? It may be that they can say it is never going to be appropriate even without visiting, if you can make sure you ask all the right questions when you visit. Speak to them first to find out what to ask, but in particular you need to find out how they operate - would your dc be mostly in the unit or mostly in the mainstream classes, how would they support him in the mainstream, how do they deal with therapies etc etc.

Thanks so much to all for your constructive tips and suggestions. They have been extremely helpful and I am very much grateful.

Personally I too have a number of concerns in seeking a postponement and so its reassuring that the consensus of opinion amongst the experts here is to go ahead with the existing hearing date.

Fearing something similar was likely to happen, I had called SENDIST office last week to inquire if a short postponement was possible and was told that whilst they would take the circumstances into account and try their best to accommodate they couldn't guarantee when the new date would be. A bigger challenge is likely to be the availability of the indie experts at a short notice, as they have very busy diaries, and so I fear that any delay is likely to push the hearing to Sept.

If I win, DS expected to start at the specialist S&L school from Sep 14. Whilst the placement offer is open until Spring 2015, I am keen for a Sep 14 start.

I am quite puzzled as to why the existing SENCO is now being requested to attend as a fourth witness. Is there a hidden motive here which I am missing?
As suggested, I plan to object on the grounds of relevance.

I had previously asked the indie SALT about the suitability of a mainstream unit and she strongly believes that DS's needs are so severe that a unit would not be adequate. (She has 20+ years experience working for a number of LA's and schools).

I am going in with an open mind when I visit the unit and will seek answers on the various points suggested. Ruth Birnbaum's book ("Choosing a School for a Child with Special Needs") suggested by Keepon is also quite helpful with its lists of questions to raise.

Thanks again.

Their EP/ your EP
Their SLT/ your SLT
Their HT/ your HT
Their SENCO/ your OT

Equal & opposite experts. Plus she'll be there cos she knows your dc so very well after such a long time in the school. Doesn't even really need the unit place, you know, but how very kind and reasonable the LA are to take parental concerns and preference into account. Plus a bit of irrelevant (or questionable) evidence to tip the balance against your EP, HT and SLT

Do you think your proposed new school does enough OT for their HT to be able to properly answer questions about it?

Does your EP think the OT needs are linked to the EP needs? Would they talk about them? Can s/he speak to your OT by phone first?

I wonder if their 4th witness is a big enough threat for you to offer to sacrifice one of your own witnesses. Any ASD unit will be able to (or pretend to) offer some OT type activities. Their offer of 30h/week integrated, everyone's sensory trained here stuff may look better than the S&L school's bought-in hour a week of direct OT. Sometimes it really is.

Our LA wanted a fourth witness and was not allowed to have them, but likewise the same for us.
We postponed our hearing to look at placement after Ed Psych and SALT reports were in - her placement had really been breaking down since we had started the process anyway so it confirmed many of my fears. At the time I was so torn as to whether to delay or just go ahead, but we did delay and I am so glad I did. We got it right in doing so and despite the stress and delay it worked so much better than if we had gone earlier.

This smells of BS!!!