We lost

[NoHaudinMaWheest]

We had a tribunal hearing for refusal to assess at the end of January. Written decision is now in. We lost.
Tribunal agreed with LA that her needs were well known to the school and as support in place there was no need to assess.

This is in spite of the fact that the support that is in place is only there because the school applied for top-up funding as her needs were greater than could be met from school's own resources. LA granted this so surely that meets criterion for needs 'greater than and additional too'.

She is actually well enough supported at the moment but because it is non-statutory it is insecure. What happens when LA budget is squeezed (as it will be)? When school has a new principal (they are interviewing at the moment)? When she moves school (as she will in a year and a half as no 6th form at current school)?

I am unsure whether to think about appealing or just wait and see if any of these problems do arise.

So sorry.

Look after yourself

Really sorry to hear that. I can't imagine how you feel. and for you.

Sorry to hear this. If I was you I would tighten up my diary and note keeping.

If any provision stops, email to confirm that with school, if scores start flatlining or going down. Them you can appeal again it's no longer working.

School argued ds made amazing progress but indi reports showed this wasn't true.

A good school who care and are on the ball is a good thing to have. Just don't let anything miss your eye now

So sorry to hear NH

When you've had chance to catch your breath, this is possibly a good reason to appeal - disclaimer I don't know about the appeal process, please obtain advice from people who do before proceeding.
"This is in spite of the fact that the support that is in place is only there because the school applied for top-up funding as her needs were greater than could be met from school's own resources. LA granted this so surely that meets criterion for needs 'greater than and additional too'."

Oh no, not another one .
So sorry .

you need to appeal. They always do this. Having to appeal is super common.
They make it as difficult as possible.

My ds 1 was originally refused an asessment. we appealed. He got that, then refused the statement, we appealed, we got that. Hes currently in a SEN school after a big fight for that.

If youre not a fighter now, you will be by the end of it

You can only appeal a Tribunal hearing if they have erred in law. That is, you can't appeal because you disagree with the decision. However, in my lay-man's eyes (and it really is lay-man's eyes!!) surely they have erred in law because your child does not have any legal protection to make sure the provision is in place - it is just on a whim and can be withdrawn at a moment's notice.

Could you put a call into IPSEA to ask them?

Although, it would be another fight (and all that entails inc money - you'll need a solicitor) to appeal a hearing. You would have to go up to the next level of hearing. It might be less soul destroying to wait for the inevitable (them withdrawing the help) and then stick in a new request for a ECHP.

I'm sorry - this "system" stinks and once again a child and their family has been caught up in "statutory" crap

I agree that you are right on the law, and the Tribunal is not. (assuming Statement)

You could try appealing to the upper tribunal but I would get IPSEA or NAS on board as soon as possible to help you.

I have a vague idea that there were some high court cases on this when one LA started doing 'apply for top up funding' and the Tribunal asked what difference it would make. I do not get where in the Act or regs they found that as being a legal test.

I'll let you know if I see happen across any cases on this

Good Luck

ps you could do UT on your own with help from IPSEA/NAS
Solicitor is good, or try bar pro bono unit maybe

Our LA does this (top up without a statement / plan). It's lawful. The govt £6000 is strong guidance but nothing to stop LAs giving schools more money to avoid having to give out statements. Here the threshold is £9500.
Of course it's not just about funding a school might not meet needs if it lacks expertise etc.
Our LA met dept of educ and complained about £6000 limit saying it would have write 100s extra statements that's when DFE came out with the strong guidance line. It doesn't say anywhere that £6000 is trigger for a statement, trust me I've looked!

If you appeal and win, the case will probably be remitted back to the first tier for a new hearing, so you are probably looking at several months' delay. It may be simplest to wait 6 months (keeping detailed records as 2boys says) and maybe apply again. If you haven't already done this. I suggest you get copies of your daughter's school records.

Book

SOS:SEN help sheet

decisions database

Parent who won

From a purely Machiavellian viewpoint, having an upper tier appeal pending will probably assist in keeping the provision going.

So sorry
Big hugs

In my very recent experience all provision stopped as soon as tribunal was done. I had a meeting this week to confirm provision normally stops and it's then "wait and see how they cope" before intervention is talked about again.

If that happens, you then have a very strong case to win a new appeal. Things said at parents evening - take notes and dig. Photo school books at parents Eve. I was handed some work of my sons at appeal. Did not tie up with what's in his school books.

Just keep on gathering up like a little squirrel. It's not fair at all but if it all comes falling down, the power will revert back in your favour.

Call ipsea defiantly.

This most certainly does not have to be the final say.

I hope your school come good and you never need that statement. But if you do, you know the drill now

weird thing is 'cope' does not feature in either Act....

The question is whether a statement is likely ie
"LEAs must identify and make a statutory assessment of those children for
whom they are responsible who have special educational needs and who
probably need a statement.
See Sections 321 and 323, Education Act 1996. "

COP 7.35 LA's should take account of "evidence that where some progress has been made, it has only been as the result of much additional effort and instruction at a sustained level not usually commensurate with provision through Action Plus."

COP 8:2 "The LEA will make this decision [to statement] when it considers that the special educational provision necessary to meet the child’s needs cannot reasonably be provided within the resources normally available to mainstream schools and early education settings in the area."

So I am with you that the extra needs funding requested for meeting the needs of dc is NOT "resources normally available to mainstream schools in the area" - it is available when the school make out a case for a particular child with additional difficulties.

If the Tribunal said that they were not issuing the order requiring assessment because it would make no difference to the provision, I am pretty sure that they were misdirecting themselves.

I am still concerned about some case law in the back of my mind,

I'll try and check

Thanks all.

Senvet those bits of the Act were exactly the ones I used in the appeal.

I have called IPSEA and their legal team are looking at it.

We had a TAC at school yesterday and the school obviously has no intention of withdrawing support. In fact following our GOSH appointment a fairly intensive programme is being arranged and SENCO's first reaction was "What can we do to help?"
She also said she would apply for further funding if this programme made it necessary. I actually don't have any problems with the school. There have been some difficulties but they have always done their best to overcome them.
The problem is that they actually do need funding to support her properly. I feel it is not fair on school either.

If I did win an upper tier tribunal would that have any effect on other children in our LA. It is pretty clear to me that they are trying to use the new legislation as an excuse to only do ECHPs for children in special school.

If I did win an upper tier tribunal would that have any effect on other children in our LA

I believe that a "win" in the upper tier would become case law and would able to be used by all children. First tier tribunal "wins" do not become case law.

So, if you did appeal and win, then it could be used for all children nationwide in England (and Wales?). BUT, it would be at tremendous emotional and financial cost to yourself, and as Ici, says, you'd have a fresh first tier hearing. However, it would be fantastic if IPSEA took it on on your behalf.

I think someone on the board has done an upper tier appeal - not sure who it was tho.

Yes it is the emotional overload I am worried about as we are about to start this intensive programme for dd. Ds is also about to sit AS levels and then we have all the looking at universities and getting him through his A levels. He also has complex additional needs.
So I am swithering but I also feel that we are better placed than some to fight this and don't want the LA to get away with it. There are children in less supportive schools who will really suffer.

see what ipsea come back with - hopefully they would take the case on for you as its quite an important legal issue involved.

whichever parent fought on to UT in the Manchester case I would kiss them if I ever met them because of them fighting on set a legal precedent and is what helped me to win my case with my dd. and yet they will never know how their fight has gone on to help other children/parents win their case.

I was told if I won my first level it would set a a new boundary hence my la getting dirty. I could only see my need for doing it.

I hear a lot of " but little x in ds class is worse than ds"

My rebute - that's two kids being failed.

So hard as you want to fight for those less able to, you have to fight your battle as well

NH Sorry - didn't mean to teach grandma to suck eggs.

I have a concern that the test for ECHP is woollier compared with the Statement.
There is a whole chunk about putting the before-and-after provision side by side and seeing what needs to be done differently. (9.55 or thereabouts of the SENCOP)

So just by converting you over to ECHP I think they might be able to turn this illegal victory into a legal one.

But IPSEA will know, so fine. If they run it, I hope they will take the strain off.

SO glad you have a supportive school. We don't hear that nearly often enough on these boards.

This was DFE view see also
'Local authorities are not expected to operate a financial threshold for deciding when a
needs assessment is appropriate. That is why the department agreed with a proposal from xxx County Council that they could pay top-up funding for pupils with SEN
without needing to put in place an EHC plan.'

The Govt clearly intended that £6000 would be trigger when it introduced sen funding changes but it backed off when LAs who delegated more than this already refused to reissue statements for children receiving say 10-20 hrs 1:1. There is nothing I have found in law that says a financial trigger of £6k is threshold for a Statement or Plan and LAs cannot raise the bar for Statements by delegating more money.

All Councils and Schools have to do is say transparently in their local offer that £X is the amount of funds normally avail to a mainstream school without a Statement in their area.

Yes it's lovely your school is good. One great school might be better than a crappy one with a statement