tribunal number 3 here we come.....

[bjkmummy]

as you know we won the NIL appeal 3 weeks ago. the judge issued a consent order where the LA would issue a 'holding' statement then LA would assess for EHCP and issue by may naming secondary school.

statement came today - they've reissued the NIL as the statement so all OT provision in parts 5/6, all the reports for tribunal with her new dx on asd are ignored so the statement is her needs from last year not what they are today.

and to finally insult us - the school were providing 17/18 hours on school action plus - on the statement they have awarded her 11 hours!

so no SALT OT or specialist teaching. all indie reports ignored and less provision now than when we started.

I could wait for the EHCP to be done and then appeal and hope in the EHCP they will use the reports but given the statement is only 11 hours then we run the risk that the LA will assess her and not issue a EHCP.

I need to appeal this statement now don't I????? if I appeal it now its a year 6 appeal so will be fast tracked - I run the risk of the tribunal being critical of me for not waiting for the EHCP but my dd is now worse off than she was before - how can that be right? its a finalised statement as well.

to put it simply its just a huge huge mess............

ive emailed the sen officer for an explaination of the 11 hours which aren't even 1:1 and how they decided on the sum of 11 hours - no response as of yet and doubt there ever will be. we been well and truly stitched up and with the tribunals help as well

To be honest, I'd expect nothing less from your LA because they have been so spectacularly awful.

Did the Tribunal issue an order for the Statement to be immediately converted to an EHCP? Or is it just the LA's whim?

If it's the LA's whim, I would immediately appeal the Statement and not wait for the EHCP. Hopefully you'll get fast tracked because of secondary transition so you get a place sorted by September. After all, all year 6's should have been finalised by 15th Feb, so your appeal should go through in time.

So that the Tribunal is not critical about you not waiting for an EHCP, you can be very very clear in your appeal that she is worse off than before and you need it sorted by September. You could also state that you no longer have confidence in the LA working in your child's interest and you want it to go through on the old Statement system. Somewhere on some document from the government (or new SEN CoP??) it does state that there is an exception for this year's year 6s that they can only be converted to a EHCP if the parent agrees. You could use this and state that you don't want it converted because it has to be resolved now.

the order states:- the LA to issue a statement naming present primary school in part 4 and no secondary school or type of provision

the LA to undertake an EHC assessment which it to be completed by 1 may.

that's the actual order part.

then earlier it talks about the LA issuing a holding statement. la committed to issuing a EHC plan following an EHC assessment and parents will have the right of appeal. agreed that the LA cannot be ordered to issue a EHCP so parents would then have the right to appeal the statement. that appeal could then be late so then we would be allowed to appeal out of time.

but don't think even the judge thought that the LA would issue something as dire as this. in the sen officers written submissions to the last tribunal she wrote herself about dd getting 18 hours of support and then she simply issues a statement for 11 hours???? and of course its not 1:1 either

I'm in a similar situation, DS (Yr6) received his finalised statement last month, all Yr6's in our county are supposed to be being converted to EHCPs this year, but no mention of this in either our statement or covering letter. I lodged an appeal ASAP stating that it is to be treated as a secondary transfer appeal against parts 2,3 and 4, my solicitor says we will aim to get it converted as part of the same process, no idea if this will work or not, I don't want to get it finalised as a statement and then find myself having to appeal the EHC conversion again in 6 months time.

Is the statement you have received a finalised one or still a draft? I would get the appeal in anyway, you can always withdraw it if a miracle happens. Have you got a solicitor or access to other legal advice?

So the tribunal ordered to issue a statement? Isn't that contempt of court?

they have issued a statement choc so have complied with that part but for 11 hours - all of the reports submitted for the tribunal state she needs a specialist school for secondary.

year 6 this year - parents can opt out to convert if they wish - how I wish now I had just said statement only please but had no idea the LA would issue a holding statement with even less support on it.

it is a finalised one so that I guess they can move to start the transfer over. no access to a solicitor due to money but dd has a trial at a specialist school next week so need to speak to them and await to see what the LA say to my email today asking how they have come up with 11 hours - ive given myself a 2 week thinking window time rather than rushing out now and also buying a bit of time as I need another OT report - so far its all coming together if I decide to lodge an appeal now with my witnesses etc so I am working behind the scenes at this. am also going to try and contact ipsea /NAS and see if we can get some help as this will be tribunal number 3 in the space of a year so financially we are in a difficult place potentially but on the plus side my reports are all up to date

How old is the order?
I recall something about correcting an error or review or something - are you past that deadline?
If not ask for the Tribunal to correct the order to define holding statement to reflect the provision stated in the NIL seeing as that was implied
No idea if it will work

Otherwise the LA have 2 obligations

1. to comply with the terms of the order
2. to meet dc's needs

If only a short while ago they were saying 17/18 hours to meet needs then, absent a sudden change in dc, they should still be providing the same. That one is for legal aid and Maxwell G.

On the bright side, they have shown themselves up to be the disengenuous plonkers they are, which will not assist them at the EHCP appeal

Good Luck

Yep
This is a long shot, but if you are 10 working days ie two weeks from the order you can ask for review
Tribunal Regs:-
*Application or proposal for review of tribunal’s decision

37.—(1) A party may apply to the Secretary of the Tribunal for the decision of the tribunal to be reviewed on the grounds that—

(a)its decision was wrongly made as a result of an error on the part of the tribunal staff;
(b)a party, who was entitled to be heard at the hearing but failed to appear or to be represented, had good and sufficient reason for failing to appear;
(c)there was an obvious error in the decision; or
(d)the interests of justice require.

(2) An application that a decision of the tribunal be reviewed shall—

(a)be made not later than 10 working days after the date on which the decision was sent to the parties;
(b)be in writing stating the grounds in full.*

So I would say ground (d)

the NIL was dire and specified nothing senvet so they have converted it to a statement which is still dire and specifies nothing = part 4 completely unlawfull in the wording

the problem I have is that the asd dx came after the NIL was issued then we got further reports as well which all say specialist school so LA issue a holding statement of 11 hours.

more frustrating is that the judge on the day went on and on at the LA barrister how they could not just ignore her needs or pretend they don't exist and the LA have done exactly that again but none of those comments have ended up in the consent order.

I will give them a couple of weeks to see if they start to the transfer over to EHCP - they have only a 10 week window and 3 weeks already gone and so far they have done nothing - I know they were probably awaiting to finalise the statement but they could have done that the day after the tribunal rather than waiting to the very last day again. so any ehcp is going to be rushed and do I honestly think they will put in any of the recommendations from out reports ? no - which means I end up appealing in may and then have to get the mediation certificate and the appeal may not get lodged until the end of june and so it will go on and on and the older my reports get.

I don't think for one second the judge at the appeal had any idea the LA would behave like this at all nor did we otherwise would have gone through a full hearing - definitely had our fingers burnt over this one

damn it = it was 2 weeks yesterday :-(

Judicial review?
Ring a lawyer eg Irwin Mitchell
Grounds that the decision is irrational?

I would think even a Sols letter would put a bullet up them

Your child should be able to get legal aid in their own right

You are supposed to use rights of appeal etc but can argue that would take too long and JR needed to put in place suitable provision (as intended by SEND) pending EHCP

The school may take a similar view to you and make their own comments + the school may pay the extra hours itself??

Am I right in thinking that the LA did an assessment previously? If so there should be no question of issuing a "holding" statement and in fact there is no such concept in law: the tribunal should simply have ordered the LA to issue a full and valid statement that properly provides for all your child's needs. Then if they wanted to do an EHC transfer, fine, but it should be done properly following a transfer review, and in fact I don't really see why the tribunal had to concern itself with that - I strongly suspect it was outside their jurisdiction.

I really can't see why they've ordered a fresh assessment - an update, maybe, but not an entire new assessment. There's all that emphasis in the Code of Practice about a "do it once" approach, i.e. not to keep subjecting the child to assessments unless it's absolutely necessary. Somewhere in there there is a paragraph that says on transfer to an EHCP it should not be necessary to get fresh reports if the LA, parent and original expert agree that a previous report is still valid. And that includes reports that you obtained, bjk.

So I think it's a mad order but it's probably not worth your while to appeal against it. I think you should get an appeal in, treating this as a full appeal against a full statement. I think it's entirely valid to do that and, if the tribunal did get annoyed about it they have no right to do so, because it was always a stupid idea to order a new assessment for a child who has just been assessed. You can point out that you certainly need the right provision to be in place now, without waiting for an EHCP, and none of this will be wasted because putting in place a proper statement now will give decent foundations for any eventual EHCP.

yes icimoi - we won a refusual to assess appeal so the LA assessed her then issued the NIL!!!

im going to need a solicitor here I think as I have no doubt that the LA will instruct a barrister from the beginning. the LA barrister has misled us as well. the judge was quite critical of the LA last time but of course none of that has gone into the consent order - when it came my heart sunk as it looked like we were all Bessie mates when clearly the LA had a plan all along. I think they wanted to find a way to EHCP rather than issuing a statement as an appeal against a statement in year 6 is fast tracked and I guess everything has been done now to cause the maximum delay possible but to then not even given her what she had before and to just pluck a number of hours of the air is so so poor and I am furious but ive sent the email to the LA - I expect they will not respond - I will leave it a couple of weeks and then I will lodge the appeal

What a nightmare bjk . I have no words!!

If we win part 2 of our tribunal this is exactly what will happen to us!!

So sorry you are having to do this yet again!

Without the benefit of legal advice, I would be tempted to put in an appeal now against the Statement. In the appeal, state that the LA is no longer working in your child's best interests because of xyz in the new Statement, and because of the poorness of the Statement, you are now using your right as a current year 6 parent to NOT be converted to an EHCP. Quote wherever it says in the new regulations/SEN CoP that for this current year 6s, parental permission must be sought before converting to a EHCP. Make it absolutely clear that you are withdrawing your previous permission because of the poorness of the Statement along with the EHCP timescales would mean that a secondary placement would not be ready by September.

Will PM you later

You could draft the ECHP yourself....

I have phoned ipsea and they are perplexed as well and passing it to their legal team - my worry now is that today in the post the letter stating they are transferring over is going to land in my post box and that then blocks any appeal against a statement but I think you are right towie and I think if this goes back to the judge he will not be happy the LA have behaved like this.

the ehcp issue is now even more woolly as the consent order says assessment by 1st may - so the LA could then drag it on past then as they issue drafts and then finalise. I do have the transition arrangements already printed out and in a folder so can go and get that and read it.

think im going to have to move asap over this before that notice is served on my but then again knowing my LA they wont think to do it. who knows!

the statement and how it is written is even more dire on closer reading - it refers to things being done daily then the hours given are for 3 times a week??? where did the other 2 days disappear to? the specifiying of the things to be done is misleading and open to speculation but given it says in big bold letters its 11 hours theres no escaping that is their true intention

I probably could senvet as I have a EHCP in relation to my older son so know the format they are using.

Tbh, I would appeal immediately (unless IPSEA can get back to you asap with advice?). I think (but do not know for sure) that even if the LA serve notice that they are converting to EHCP, you are still within your rights to withdraw your permission because of the crap statement.

Sorry xposted. I think the problem with converting to EHCP is the timescales with secondary school placement being only a few months away. If they played ball (which they haven't done so far) and you get a crap EHCP plan on 1st May, you probably wouldn't get a hearing for September or, if you do, they'll get it adjourned because of "staffing" and the summer hols.

no that's right and if im appealing a EHCP I have the stupid mediation certificate to get as well. ipseas concern was that the LA have complied with the consent order as in they have issued a statement. the judge made no ruling on what that statement would say but I don't think the judge expected for one minute that she would be left with even less support than before - I know the school will probably do the right thing to be honest but that's not the point and leaves us legally vulnerable.

the judge said the 1 may so we could appeal if needed but the way the judge talked it was as though the LA would now accept all of the reports and write an EHCP with all her needs that had been identified in it and that 1st may will be fine as there wont be another appeal. the LA have only in reality consented to undertaking the EHCP assessment - they haven't commited to more than that although the barrister indicated that the LA would likely issue one but they LA were not in court when the discussions took place nor are they documented anywhere and the consent order only orders them to do an assessment not order an actual plan so they could indeed not issue a plan and given as the statement is only for 11 hours - what does that equate money wise - certainly less than 6K isn't it!!

im up the creek without a paddle is the reality

Does the covering letter say that you have right of appeal to SENDIST and give the time deadline?

You can appeal a final statement within two months of the date of the covering letter. Put your appeal in asap. Then whilst your appeal slot is booked you simply amend the appeal accordingly if the document is converted (I don't understand why assessment for an EHCP was ordered for a DC with a statement unless I have missed something and there is now a mass reassessment of all DC with a statement).

Finals are always crap and unspecified with as few hours access to support (definitely not 1:1) as can be got away with. LAs seem to like to start the bargaining low but I would like to bet that they will increase the offer by the time of hearing - even if it is just coming to the hearing offering more than was in the original final. DS1's draft was for 10 hours and the final for 15 hours. The LA came to hearing with a new draft WD stating 25 hours and then conceded ooc indi ss.

I sent my LA the reports written by MS and DK with my 15 day response to the draft and they were still ignored. In fact my EP comments in her report that it is astonishing that the only recommendations that made it into the statement were those made by the LA EP.

Just approach it as an appeal against parts 2, 3 and 4 of a crap statement.

The appeal hearing of the NIL is not an appeal of the content of the document but is asking the tribunal to rule on its legal status. The LA is still the sole author at this point though and can write/ignore whatever they like. The only way that they cannot ignore parental and expert comments is through recourse to tribunal for parts 2, 3 and 4.

okay letter received with statement says:

a consent order was issued on xx date

the LA has agreed to issue a final statement naming current primary in part 4

the LA also agreed to undertake a EHC assessment to be completed by 1 may

The consent order recognises the right of appeal against the content of the statement. Any such appeal necessarily be late if the LA should decide not to issue a EHC plan. if asked to register the appeal late the tribunal should be provided with a copy of the consent order

they advise me then in accordance with the education act that I have a formal right of appeal if I am dissatisfied with part 2 3 and 4 of the statement and to contact sendist if I need to.

then the usual contact PP and mediation details.

the it ends:

in conclusion you may find it helpful to contact me in the future if you require any further info or advice about the implementation of the statement.

It seems to me like the existence of and contents of the consent order do not supersede your right of appeal of the final statement. The rest of it really does not make sense to me - how can you appeal the contents of the statement if the LA decide not to issue an EHCP? It seems like they are hoping that you will not appeal the final statement (waive your legal right) but will wait and see if the ECHP is any good (if the LA issue one).

Why wait? Ignore the order and the complexities that its adds now that you have a legal document which gives you the right of appeal right here, right now.

what they were saying is that the LA issue the statement now in feb then do the EHCP which takes us into may - my concern was what if the LA then don't issue a EHCP ( it was being muted to not issue a statement and just the EHCP assessment) I would then have done 2 tribunal and still no statement /EHCP so the statement was issued as security as you like so if the LA further down the line didn't issue a EHCP we could appeal the statement.

I guess the LA will argue the statement is a holding statement but tehn why not give her full support? why give her 11 hours and have therefore reduced her support when she has so many more difficulties. the LA are still seeing her as the child they assessed in may and issued a NIL for - they have still not recognised her ASD dx despite the warning from the judge so im still no further forward am I.

okay - im going to appeal the statement - its the only way forward isn't it.

LA assessment for an ECHP may include assessment to try and counter your indi reports but it might not be that thorough with no appeal looming. On the other hand, if you are heading to tribunal, the LA will need to gather evidence to try and counter your evidence. Focus on what you want. I don't think you will get what you want without appealing 2, 3 and 4 in time for DD to start at her new placement in September. Any delay, for whatever reason, is too great a risk and seems to involve trusting the LA to act lawfully in future despite not having done so in the past. Do you think they have learned the error of their ways? If not, appeal quick smart before they can get any proposed alternative off the ground. You don't have to volunteer the info to the tribunal that the statement is a 'holding' one (nonsense anyway as there is no difference in law) or give detailed info of previous appeals. It is up to tribunal, not the LA, to grant right of appeal and you only have to give sufficient info of how part 2 does not describe ALL needs and so part 3 logically can't meet them.