Another question about transfer from statement to EHCP

[KOKOagainandagain]

I have a letter dated June 2015 from DS1's case worker at the LA.

They were aware that he had been out of school totally since February 2015.

She says that they have received a Transfer Review Report dated January 2015.

She says that the LA are drafting the EHCP but 'need' our input using the enclosed form (Family Advice). I assume this form is relevant to an application to assess - it states that the information provided "is a valuable part of the EHCP assessment process [and] ... will help us decide whether an EHCP is required" and not transfer from Statement. Does it say this anywhere? Is transfer process the same as application to assess process?

Parents had 15 days to return the form but didn't No draft EHCP has been issued.

In any case, AR was due for January 2016 and we were told in the same letter that we would be invited to a meeting before this date. This did not happen. On chasing, the LA caseworker said the lead EOTAS tutor would have to hold the AR (and then draft EHCP would be produced according to NAS).

The tutor duly visited but said 'this' was not the AR. The LA (via EOTAS) are suggesting further assessment, particularly EP. DS1 will not even meet his tutor and so there would have to be clear reason why assessment was necessary as no 'school' observation is possible and he has been objectively assessed to death. DH said 'He is still dyslexic and he is still autistic'

The official AR meeting is set for after half-term and I have said I want to invite SENDIASS (PP) and autism outreach to attend.

The EOTAS tutor has delusions of power but is really just an arse - he actually said 'we are all on the spectrum' and wanted to bracket 'ASD and everything else' and treat DS1 just like everybody else. He then told us a very lovely, but irrelevant, story of an ex-young offender with no sense of purpose "for different reasons" who had found meaning via the same young offender provisions pushed by his usual tutor. ffs.

Have they breached the statutory timelines? Is this really the correct process for transfer?

This all sounds odd, but par for the course as a large number of LAs seem to have no idea how to manage the transfer process. They should have given you two weeks' notice that they were about to start the transfer process, and they should complete it within 18 weeks after that. It sounds as if the "Transfer Review Report" might be the report that they receive after a transfer review meeting, which is often done at the same time as an annual review meeting - did you have an annual review around May? But in any event, if they didn't give you formal notice in advance of the meeting that that is what it would be, then it wasn't. Further, I would assume that if you had had a transfer review meeting you would have been told, and there would have been a discussion about EHCPs and the whole EHC process.

Once notice has been given, the LA has to carry out a complete reassessment unless everyone, including you and the original experts, agree that the reports currently available are suitable. I'm afraid therefore that if the LA consider that reassesment is necessary, you can't object. However, if the current reports are reasonably up to date and the original experts agree, it would be reasonable for you to ask whether they really need to assess yet again, and to point out that repeated assessments are harmful to your DS.

Equally the January 2016 AR couldn't be part of the transfer process unless the LA gave you formal notice in advance.

EOTAS tutor does indeed sound an arse. I would suggest asking for one that actually knows something about autism: check whether he meets the requirements of the statement, which remains in force till the EHCP is issued.

I think this letter is the notice. It is headed 'Response to the Transfer Review Report'. The last AR DS1 had whilst attending school in January 2015 was a TR. The letter says that the recommendations of the meeting are noted and that the LA will be transferring the statement to an EHCP. They say that once they have drafted the Plan they will contact us and arrange a meeting to discuss the draft if we wish. A copy of the Response was sent to his old HT and that in the meantime he would continue to receive provision in his statement.

Then nothing happened.

It doesn't sound like that can be the notice. A letter giving notice should specifically be telling you that the process of transfer is going to start in two weeks' time. If the last annual review was a transfer review, did you have specific notice two weeks beforehand that that was what it would be?

If they contend that it did begin in June 2015, they are way, way overdue, because at that time the time limit was 14 weeks - it only changed to 20 weeks in September.

I'd suggest you get back to them on Monday and ask them to clarify what the hell is going on because you've never been given notice that a transfer review was starting.

Gruntled - the LA are truly crap. We had 2 AR meetings whilst DS1 was at school, the last being a TR (we were told this by the school) but neither have resulted in the LA actually carrying out the AR and therefore reissuing/amending/ceasing to maintain/transfer to EHCP. The last Statement issued was dated May 2013.

The LA don't do notices and never have - hell they don't even reissue the actual Statement.

We have had one letter from them dated June 2015 which says that they are drafting the Plan and giving us 15 days to provide additional information.

The EOTAS lead has now emailed to confirm another "Annual/Transfer Review" meeting after half-term.

Provision in his statement has not been delivered since February 2015 - including weekly SALT and OT.

Should I go to education solicitors? If so, what should I be asking them to do? SEN Legal have had extensive dealings with my LA as they are the most local but they seem to assume a SENDIST route.

To be clear, the letter states that the LA will be transferring the Statement to EHCP and specifies 15 days to give additional information.

They have merely added an extra sentence in-between which seeks to make it parental responsibility that they actually do what they have said they are going to do.

I can't find anything in the documentation that says that the LA only has a duty to complete the transfer IF the parents provide additional information BEFORE they issue a draft.

The LA must invite parents to a meeting to discuss the draft but the guidance does not say that parents must provide additional information before the LA can issue a draft.

Don't go to SEN Legal, they're phenomenally expensive.

Have a look at article 14 of the Transition Regulations and section 5 of the Transition Guidance.
The 14 week transition period in the 2014 regulations was extended to 20 weeks in September 2015.

If they wrote to you saying they would be transferring the Statement to an EHCP, then that might have been the two weeks' notice that they were supposed to give. They should then move to the full reassessment, which includes asking for your views and it would be normal to ask you to respond within 15 days so as to give them time to incorporate them in the draft EHC Plan. However, getting parental views isn't a prerequisite for drafting an EHCP, and if they don't get them that certainly isn't an excuse just to stop and do nothing further. Their primary duty is to meet you child's needs, and it doesn't take Einstein to work out that if, for example, they had a parent who was simply bloody minded and never responded to them, or was incapable of doing so through illness, for example, that would not give them an excuse simply to ignore the child. In your case, I assume that anyway they have an excellent idea of what your views are as a result of their meetings with you.

That said, it would make every kind of sense for you to give them your views in writing ASAP. Part A of the EHCP is supposed to include your views aspirations and those of your child, and if you don't provide them then they will make up any sort of crap.

They're way beyond the deadlines if this started last June, and it would be worth pointing that out to them and telling them that you expect them to get a move on. How old is your DS? If he would in other circumstances be due to transfer to a new phase of education, e.g. secondary school, they should be completing the EHCP by 15th February.

In the meantime, if you want to enforce the provision in the statement, I would suggest you contact SOS SEN to see if they can do a formal letter for you threatening legal proceedings if it's not sorted out immediately.

Thanks

I will contact SOS SEN.

DS1 is now 15. He was in year 9 in the academic year 2014/15 and was scheduled to transfer last year.

you can also go to local govt ombudsman (free service) - they will usually require you to go through internal complaint but may make exception where a child is out of school.
You can't do anything legally until you get a right of appeal which you will only get once they issue the final ehcp or make a decision at AR they are not going to change the statement.
Go to LGO and complain the delay is denying your DS a right of appeal + he has lost education due to delay (is he getting any tutoring etc?) LGO may tell the LA to pay money to compensate for any education lost due to delay + will require LA to get on with it.

You can't normally go to the LGO unless you have been through the council's complaints procedure first, which will take ages; the LGO procedure itself is also slow. I suspect that when LAs receive a threat of a formal complaint they're really quite pleased because in effect it gives them a few more weeks before they have to do anything. A threat of court action with a two week (or less) deadline is much more effective. Any council that is half awake will realise that you can get legal aid in the child's name to pursue legal action and that, if they are blatantly breaking the law, they will end up having to obey and to pay your solicitors' costs as well as their own.

The JR threat is available for the failure to deliver what's in the statement. It's also applicable to the failure to meet the transfer deadlines, if you want to push them into getting on and finalising the EHCP.

I should have said, if you get what you want by threatening JR, you can still go back to the ombudsman afterwards with a formal complaint about past delay, which will open the door the possibility of a recommendation for payment of compensation.

Thanks.

I have spoken to SOSSEN and they are arranging for a 1:1 telephone meeting with a senior volunteer from MG.

You are not kidding that SEN Legal are expensive - I was quoted £1.5 to £20K for JR.

I was told on official helpline that I can't get legal aid in DS1's name as parental income is used to check eligibility and that DH earns too much.

I had deferred this issue to DH to take the lead on as DS2 had upcoming tribunal and I was battling school and LA for him but DH has clearly done sweet FA and the LA have taken full advantage. To be fair, DH has made numerous verbal and email attempts to communicate about non-delivery of provision and asked for a personal budget so that we could arrange weekly SALT, OT and counselling ourselves but has allowed the LA to fob us off over and over again.

Wow. Was it SEN Legal who gave you that information about parental income not being taken into account, or someone else? Because it is absolutely, definitely, not true in relation to court cases (though it is for tribunal cases because those are taken in the parents' names). Whilst you can't get legal aid for a pre-action letter, you definitely can get it in the child's name if you have to begin court proceedings, irrespective of parental income. Ask Maxwell Gillott or Irwin Mitchell to double check.

Whoever told you that needs to be put right, because it's quite dangerous if that sort of misinformation is doing the rounds.

Sorry, I meant the information about parental income being taken into account is not true, not "not being". IYSWIM.

It wasn't SEN Legal - it was the what I took to be the official line - Civil Legal Advice helpline (on NAS website). They asked lots of questions about income and benefits and then told me that I didn't qualify. That parental income determines eligibility and that DS1 would need to be living independently on benefits - she commiserated that 15 was a difficult age because of this (presumably for NT DC).

Ah, that's different. That's all about the delightful complications of legal aid. There are two tiers. The first is Legal Help, which is about advice and help short of court proceedings; it does include help with preparing tribunals, but only if the parents qualify. The second is full legal aid, which is available for court proceedings, but it's only available at the point when you're about to start court proceedings or if solicitors are needed to investigate whether they're appropriate. For that one, you can get legal aid in the child's name. However, that legal aid wouldn't normally cover sending a pre-action letter, which is why you either need to get someone like SOS SEN to do it or pay the solicitor.

I think in many cases the pre-action letter in itself does the trick so I suppose in practice not many JRs actually happen.