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

dare I ask who the LA's barrister was? Don't say if you don't want to

If I appeal keep the covering letter from the LA will show the reference to the consent order so will let the cat out of the bag so to speak and then I guess it is down to the tribunal if they allow the appeal in or not. the statement is her needs in the past not currently and she continues to sit at school with so many of her needs being left unmet

I'm sure someone can correct me if I am wrong, but I think you can mentally place brackets around the bit of the letter referring to the previous order because this does not affect your rights under the education act. The fact that you have a legal document confers right of appeal. The criteria for appeal relate to the adequacy of an existing legal document. Side issues do not impact on criteria for appeal. Like you say, the statement does not reflect all needs as identified by most recent assessment. Therefore, you meet the criteria to appeal, end of.

it doesn't help me I guess that the consent order says for the LA to issue the statement to name her current primary and naming no secondary or type of provision - so when I say I want to appeal part 4 I need to word it to read im not appealing the primary but the school for secondary, honestly this has got so confusing - the judge should have just ordered them to issue a statement but the feeling was that the LA would then work with us to do a decent EHCP and I would have gone along with that if they had just done a half decent statement but they've made their intentions clear. still no response back from the LA - surprise surprise

That just strengthens your appeal. The very issue of secondary provision is being deferred when all other year 6 statemented DC are supposed to be sorted out by February for a September start. Assessment would not even be completed til the summer term - too late for properly managed transition to secondary placement.

You don't have to specify a school in your appeal, just the type of school you think might be necessary depending on the outcome of assessment. The detail can be changed later - just appeal part 4 on any grounds for now.

I will do that = she has an assessment at a school next week so will defer the name/type of school until that is done and if the school offer her a place which fingers crossed they will.

Because of delay DS1 did not get adequate transition - he was supposed to have staff from the secondary visiting in primary and introducing him to the secondary throughout the summer term. This was because everyone was saying transition was really important. Never happened. This was one of the key reasons that secondary transition failed.

Delay may mean no placement is formally named by September so by default she would end up in LA preference of local m/s whilst awaiting tribunal ruling. Otherwise, transition fails. You don't want to go there.

I have no intention if it rolls into sept sending her anywhere near a mainstream school - I will keep her out whilst the tribunal rules and I have a feeling this is part of the game = to delay knowing I will be forced to either appeal the statement as they don't issue an EHCP or they issue a dire one so will drag it out to me not lodging an appeal to june - no way am I going down that route!

I can't see why you think issuing a proposed EHCP stops you appealing against the statement? If anything it's the other way round, isn't it? Isn't there something about not issuing a new EHCP whilst an appeal is ongoing?

no that's not mentioned at all. I need to pull my big girl pants on and get on with it - im in a denial state as I cant believe that after 3 weeks im facing it all again and im tired - if I appeal now it means I will just fit in 3 tribunals in the space of a year - the financial cost, the emotional stress, im drained BUT I know I have no option - I do know that and I need tomorrow to get on and just do it and I will do it

1. A crap statement in the hand is worth 20 EHCPs in the bush.
   So file appeal on sections re 2/3/4 right now.

2. As well as the criteria above, y ou can also ask for a review of the decision under the change of circumstances rule. The change being they've cut her provision only 3w after the hearing. Or you may get it set-aside on the basis of error of law. Were the decision & consent order rolled up together? Or separate Documents? If so, did they come at same time? Promptly?

3. I don't know if first tier actually had jurisdiction to waive your dd's right for secondary to be named by 15 feb. Ipsea legal might find answer.

4)The fact you consented may be irrelevant if you weren't aware you had a choice. And if important information was withheld by your LA your consent is possibly void- think payment protection mis-selling.

5. again, I have some doubt whether first tier could insist you give up your dd's right to stick with statement this year, rather than go for EHCP. And even if you did, you might be able to change your mind.

6. these jokers are taking the p**s in using statement to cut current offer. Ignoring all the evidence is par for the course. But actively sticking 2 fingers up at SENDIST- who may not be impressed- is not usual behaviour

7. I think appeal related JRs might get routed to SENDIST - ask ipsea. If so, you basically get to go back, but with legal aid

the consent order/decision all came under the consent order - we got it 6 days after tribunal so pretty quickly is the answer so its was all one document.

ive spoken to ipsea and awaiting their legal team to contact me but I know they can take time so I may just have to get on with it - if I di it wrong I can always withdraw the appeal

the statement is just the dire NIL rewrote as a statement - we asked for the statement to be specified and quanitifed so they just gone down the dire list of the EP wooly recommendations and added in 15 mins here and 15 mins there - doesn't specify who will do, how it will be monitored etc etc

the LA EP who nicked the scores of one our reports and then changed how many months behind she was has in the statement changed it to read from 'at least 30 months behind' to now 'more than 30 months behind' the report they used actually placed her further behind than that and the new indie EP report we had before the tribunal has shown the gap is now even wider than when we first started.

I guess I just wish I knew what the game plan they have is - I know its staring me in the face but im being blind to it for the moment for some reason.

letter arrived from LA this morning and my heart sank -= the letter is about my dd twin who is also year 6 informing me that they will be transferring him over in 2016/17 so that's the plan for the year 6 kids so none have been transferred over yet so really doesn't make sense why they are rushing dd over.

anyway - time to continue with getting the appeal ready

Plan A is probably to issue a nil instead of an EHCP.

Plan B will be to issue a dire EHCP naming the local mainstream with 'access to regular plan do review cycles' and perhaps a laptop.

This is in your dd's favour though. Sendist won't like being mocked.

You're putting in 2 appeals, right? (Unless ipsea say different, obv.)

Appeal 1 is 2/3/4 of crap statement.

Apoeal 2 is the silly consent order with (a)request for review on change of circs grounds and/ or (b)permission to appeal to UT re crap consent order.

Ipsea might say appeal 2 is better done via JR

at this stage ive just lodged an appeal against part 2 3 and 4 - the consent order im leaving for now until ipsea come back - I can always withdraw the appeal ive lodged if needs be - will now wait and see what sendist come back and say and if they allow the appeal in.

they cant issue a NIL now as they don't exist - its either a ehcp or nothing.

im hoping that I can go around the consent order as I have the ultimate right of appeal against the statement - its just that im appealing sooner rather than waiting for the EHCP which I guess is what the LA wanted to drag it out

I think review on 'change of circumstances' grounds and/or appeal regarding a decision can be filed up to 28days following decision? The LA slashing existing provision just 3 weeks after tribunal would surely count as a 'change'

I hate to say it, but it's sounding a bit as if you were stitched up by the LA lawyer. There simply cannot be any sense in the LA agreeing to issue a statement but three months later deciding not to issue an EHCP: the criteria are the same. But the order seems to contemplate that that could happen. And if they decide not to issue an EHCP, what is the status of the statement? Would they have to issue a formal decision to cease to maintain it? I can see exactly why IPSEA are concerned about the legalities of this.

I'd be tempted to ask for a review - say something to the effect that you relied on the LA lawyer, you now realise that legally this situation is a mess and the order the tribunal made wasn't within their jurisdiction; the only order they could have made was for the issue of a statement. If the LA wants to do a transfer review later, that's fine, but there is no point in a whole new EHC assessment.

thats why the judge ordered that a statement be issued so that if 3 months down the line the LA said no to an EHCP which was our concern then we would have this holding statement and we could use the statement to appeal. in reality they should have just been told to issue a statement end of , then they would have had to taken on board in the statement all of the new reports and the dx and then it would have been much more straightforward. the 'holding' statement then does hold full legal status but is so dire it is also pointless hence the immediate appeal against it.

its going to be interesting as I have gone for costs as well and the top judge herself is dealing with that one - will she as part of that come across what the judge has done in my case I wonder?

Correct me if I am wrong, but I think that the criteria for right to request assessment an EHCP is the same as requesting assessment for a statement but the wording of the order would make sense if the criteria for issuing an EHCP were different from the criteria for issuing a statement. The right to request is not the same thing as the right to receive. I just don't see how EHCPs can be delivered for longer, without increasing the budget, if as many EHCPs as there were statements are issued.

BJK - even if the tribunal had ruled just to issue a statement, the evidence that you provided after the assessment had been completed, would not make it into the current statement without an appeal of parts 2, 3 and 4. The recent hearing was not of the contents of a statement and logically couldn't have been because one did not exist at that point. Now that it does you can appeal the contents.

If the tribunal was for contents the LA would have to have done further assessment to find out if their experts agreed with yours. The final statement would contain both if there were agreement or if there were disagreement the tribunal would have to justify a ruling which backed one side.

I don't think that the LA can add anything to the statement that was not identified in the evidence it sought at assessment. The LA can't change the appendices submitted and can't ignore the fact that ASD was not mentioned in the medical evidence might suggest disagreement.

So to incorporate the new reports DD would need to undergo further LA testing. It would be cheapest and fastest to carry out another formal assessment so that your reports can be considered. If statements still existed perhaps the order would have been essentially the same. But, just in case the LA can't be trusted and don't issue an EHCP (triggering your right of appeal of the contents), the deadline of 2 months to appeal the contents of the statement will be extended so that you do not lose right of appeal of contents.

so have I then made a huge mistake in already lodging an appeal against the statement?

my issue is that under the NIL the school were informally giving her 17 hours of support and now the statement gives her only 11.

also taking out the EHCP issue - if it had been a NIL appeal and the LA conceded then a statement would have been issued within 5 weeks I think it used to be so the reality is that the statement then would have dire as well.

the assessment now of an EHCP assumes that the LA will accept all of the reports and dx but this process could drag on for many months - the 1st may is assessment - it doesn't mention a finalised one. to date, the LA have been silent re the EHCP so they haven't even started the transfer over - okay I guess we could argue that they had to wait for a statement to be able to transfer over.

it just feels so far everything has been pointless - the judge made it clear that the LA were not to ignore her needs and the LA barrister said there was no disagreement about the ASD dx - its like they have by the back door got a second crack at the assessment - they did a dire first one, they sought no reports despite now having had our SALt reports since august - its just delay delay delay BUT I need to be reasonable so now im thinking have I made a mistake in lodging the appeal given she in year 6

Simplify it. The best but realistic outcome would be a crap ECHP. You would then have to appeal the contents because you want and believe, with evidence, that DD needs Indi ss. I think that tribunal is saying that you can wait without it impacting on your rights to appeal contents of the existing final statement whatever happens following assessments.

I think appeal now of the final is the right thing to do and is your legal right. You can amend it from appeal is statement contents to an appeal of ECHP contents but you can fully argue that you need to do it now, without further delay, because of looming transition. To do otherwise would not be in her best interests. This way shaves off months if you assume that the EHCP would be crap.

thanks keep. having a bit of a wobble today. time for big girl pants on again.

they had indie OT reports as part of the original stat assessment and still placed all the OT in part 5/6 - they could have easily have put that in parts 2 and 3 but have chosen not to which again says it all

There can be no harm in the appeal for the statement at this time. If they step up and give a decent EHCP then you can cancel the appeal against the statement. If they don't issue an EHCP then you have the statement appeal to fall back against. If you find the EHCP is issued but not adequate then you can probably ask for the appeal re the statement to be converted to an appeal about the EHCP instead anyway as this kind of supercedes the statement, and in getting a date set re the statement you are probably saving yourself some time in getting the hearing held.

The LA are playing games by the sounds of it - you may feel like you can't face this again and no doubt they are hopeful, but take a deep breath, gather your thoughts and stand up stronger than before and know you have the moral high ground here. This really should not be about LA and them doing their best to avoid giving provision but is about a very real child who has a right to an acceptable education with appropriate support in place for this to be possible.