EHCP: appeal against LA refusal. Anyone been successful?

[notaflyingmonkey]

DS has had a statement since he was four when diagnosed with autism. He is now 15 and transitioning into 6th form. The annual review went badly, and the LA have refused to issue an EHCP, which means he is on his own.

I am appealing their decision, but have no clue about what that will mean. Has anyone had experience of this? Do you need legal representation? (If there are existing threads on this, sorry, I had a look and cound't find them).

zzzz in our case there was evidence, obviously, as we had an EHCP full of evidence of needs, but this still wasn't enough to convince the LA that the school couldn't meet the needs with a much smaller budget than the school said it required. So for example school says we need 2 hours of dyslexia teacher twice a week for 5 children, which costs x divided by 5, 10 hours of LSA divided by 2 (two kids sharing) and LA then says no we disagree, you should be able to get by with a dyslexia class for 10 children and you only need I hour of specialist teacher for those 10 children. And look we have made the EHCP exceedingly flexible so now we really don't have to give you any money. (again onus on parent to know just how much specialist teaching is required to get little Johnny to reach his potential - school might know, but but LA will probably not want to exaggerate just how much intervention IS required. The bare minimum will do. How does the school actually enforce the money??? They have to come back with an extraordinary wealth of "evidence" to explain that they have spent their budget already and have no more to spare for the specialist teacher (which apparently they should have anticipated they would need, before my child even entered the school with his "needs")

It was only a combination of school insisting on extra funding as a condition of giving him a place (which is not actually a legal position) and my solicitor sending a letter reminding the LA of their responsibility and I think threatening JR, that the small amount of extra funding school asked for, became available. And that was WITH AN EHCP.

But £££ are a school level issue

^^and there's the rub. Schools can't afford it. Hence the lacking of support quite often.

Look at page 4 OP. There is plenty of advice available out there ESP from Ipsea and Sossen based on law and fact. Only a EHCP or statement can be legally enforced.

www.sossen.org.uk/admin/resources/transition-to-ehc-plans-1.pdf

No, zzzzz the school could NOT meet his needs within their budget. The previous school hadn't managed with the same budget - the LA were being entirely ingenious to pretend that the second school somehow magically could make the money do something different in terms of specialist teaching and LSAs. I am just trying to explain it IS about money and wriggle room. EHCPs give slightly less wriggle room.

The finding thing is a complete red herring and used by la to absolve themselves of responsibility.

My la even explains in the blurb about Sen funding it only pays for those with EHCP that need above 6k.

Remember that the Sen notional budget is not ring fenced. Also schools aren't always willing or able to provide all,the support a child needs - often just providing what gets them through the day or making some form of progress. That doesn't match what the SENDCOP says about best possible outcome.

Also it clearly states in SENDCOP that where a level of support previously available in one setting and won't be available in another (eg post 16) then an EHCP should be written.

Plus it's the EHCP that goes through to 25 to support university. Statements ended at the end of post 16 college education.

For example when I recently went through the refusal to assess tribunal the judge asked school what sensory equipment they had, what room they had set up or could have to provide sensory activities and what availability woukd they have for staff to provide this when Ds needed it. They said they didn't have any of the equipment, could find a room but it would be double used and would have to look at timetables for staff. They did say there was a sensory room on site at the SS and ASD unit but when asked said that Ds could only access that with an EHCP and being actually placed in the school. So all the gumpf given about access to specialist support in special schools etc isn't a reality in practice in many cases.

IPSEA refusal to assess pack is very useful IMO.

But the first thing I'd do is email LA asking them why they think the support your needs in secondary will disappear when he goes to college where the expectation for independence and organisation and the social environment is greater. Then plan your appeal on what they say.

Oh and kids do have to fail before action is taken in many cases. Even when I attended tribunal with a child who had no secure school place the la were adamant they weren't changing their stance.
Even the judge thought they should and called us up before the tribunal to ask them!

Unless a child has very obvious learning difficulties it's usually wait until their MH and behaviour hit the point they are being excluded before any action is taken. Sad but true fact.

The EHCP and Sen notional budget do not work in that it's used to provide what the majority need in a MS school. It's used to provide umbrella support that doesn't always work for every child.
Mines been doing reading and spelling support for 4 years using the same programme. He's gone up a few months - but apparently that's progress! Never mind the fact a child who is cognitively able to do GCSE will at this rate have a reading comprehension age of 9.2 years when he does them. That will disadvantage him.

Thanks again all for your help.

Where on earth are you getting your information from, zzzz?

Many (most?) children with statements won't require an EHCP

Absolutely not true. The DfE issued directives when the law came out to say that this should not be used as an excuse to get rid of statements and the expectation is that most children with statements will transfer to an EHCP.

Because the whole point of the change is that more funds are available within school without the need of a statement.

If only that were true. Schools are getting ever more cash-strapped. The point is that without an EHCP there is no guarantee that support will be put in place or retained.

My understanding is that EHCP is for a subset of the statements population. Were you under the impression they were the same thing?

No, they are not for a subset of the statement population. See the DfE directive referred to above. If you look at the criteria for issuing a statement and compare them with the criteria for an EHCP, you'll see that they are very similar. They are not identical, but the differences are not such as to justify taking away statements.

And no, they aren't the same thing, but that is because they are meant to be outcomes-focussed and to be holistic to include all the education-related health and social care support that the child needs.

Surely if more funding is already within the school budget then it follows that those with minimal financial needs will be catered for without the need for an EHCP? Here there is significantly more than the money within school too (e.g. DS had several thousand pounds in addition direct from LA to pay for his support without an EHCP).

As pointed out, funding isn't more than was available with Statements: there is a notional figure of £6K per child with SEN but that is nothing like the actual figure the school is getting in practice. If a school is allocating more than £6K to one child's support then that child would certainly meet the criteria for an EHCP, because one of those criteria are whether the support required can be provided for from the resources normally available within mainstream schools.

It would also be very dangerous for parents to sit back and assume that that funding will be available indefinitely. Schools all over the country are looking at going into deficit. And the problem is that if they pull out of funding support and the child doesn't have an EHCP, there is nothing the parents can do about it short of starting the process of applying for one. Whereas if the child does have an EHCP and the LA stops funding support, they can be forced to reinstate funding through the courts if necessary.

The idea that you don't need an EHCP if the support required costs under £6K is also a misconception. There is now quite a lot of case law that says so: the issue is whether the child is actually getting support in practice. If they aren't, which happens only too often, then an EHCP may well be appropriate.

OP, did the LA carry out a full assessment before making their decision? Many LAs are not, despite the fact that it's a legal requirement unless you agree that there is enough information already available about your child's needs. If they didn't carry out an assessment the transfer process has been unlawful, which will strengthen your appeal in a big way.

LAs are at crisis point. They can't even afford to build enough places to educate mainstream children. It's not about the most worthy. Every single child in the UK deserves a school reception place in county. Every single child with SEN deserves to have their needs met. EHCPs and statements are issued on need.

www.getsurrey.co.uk/news/local-news/schools-budget-deficit-increases-4847399

Unless your child has a ehcp or statement any provision can legally be withdrawn at any point. At which point the only option a parent will have is starting a lengthy appeal process. It took me over two years to appeal start to finish.

Surrey, for example are refusing to make more school places for its increased population. They are pushing back to central government. Which is the fundamental issue with funding. Central government cutting budgets.

wouldhave what would the full assessment have consisted of? As far as I am aware, it was essentially just the annual review meeting that they based the decision on.

82boys I am in Surrey, and I think that this situation fits with the funding issue in that link. The strategy seems to be withdraw SEN funding allocated on a 1-2-1, and risk it being reinstated if the parent pursues appeals. (DS has had no SALT support in about 10 years despite it being in his statement, as there just isn't the provision in the county).

Is it too cynical to suggest that the cuts are to the support given to the vulnerable individuals for a reason?

The assessment should have been the same as was done when the statement was first issued. Regulation 6 of the SEND Regulations 2014 sets out the advice the LA is supposed to get. They don't have to get that advice if the information already in existence is sufficient and if everyone concerned including you as parents agree that it is sufficient.

So if they based the decision on the annual review meeting, they acted completely unlawfully. I suggest you contact them immediately quoting Regulation 14 of the Transition Regulations which sets out the duty do to a full assessment and ask them to confirm that they are suspending their decision until they have complied with the law.

Surrey is notoriously bad on SEN, and rumour has it that they're not looking forward to the imminent result of their recent Ofsted inspection. In fact it might be worth reporting your experience to Ofsted.

zzzz, I was just surprised, because what you said was so much at variance with what people like the big SEN charities and lawyers say that I thought you might have read it somewhere or heard it at a conference or something. Your points that an EHCP is in no way equivalent to a statement, and that EHCPs are for a subset of children who had statements, were particularly surprising.

If however his needs CAN be met in school with the funding provided and the school are able and will do that an EHCP is demonstrably NOT needed.

Not necessarily so. As these boards demonstrate, it is often the case that a child's needs could in theory be met by the school but in practice it doesn't happen. As I said, there is now a lot of case law that says very clearly that it is not good enough to say that it is possible for the child's needs to be met without an EHCP if in practice that is not happening. Sometimes children need that EHCP just to make sure that help is put and kept in place.

My understanding was children with statements now will transfer to EHCP, however in the future that level of difficulty would not require EHCP and in the future as new cases would be managed within school.

But that is not what the DfE says, it is not what experienced people on this thread are saying, and in particular it is not what the law says.

No-one has said that a child cannot outgrow a statement. Manifestly if that were the case then there would be no procedure for ceasing to maintain a statement OR and EHCP. The point is that the majority of children with statements will continue to need an EHCP.

In OP's case, she is very clear that the only reason her child has made progress is because of the support he gained through the statement, and that in particular he has no self confidence. If he is moving to the sixth form, it is very likely indeed that he will continue to need that level of support, and there is no evidence that it would be forthcoming without an EHCP.

My LA still uses the old criteria for statutory assessment for EHCP written in 2001 under the old C and F act when statements were in force.

They claim that EHCP are only for bottom 2% of the pupil population but schools for pupils with ASD and no LD and units for S and L with no LD etc wouldn't exist if this was true.

Ds falls in bottom 2% for reading comp and spelling but they try and dismiss this despite it meeting their criteria for statutory assessment for spld and no one will even log his Sen needs as spld and will only log ASD.

zzzzz I get what you are saying about the Sen support being able to meet need then an EHCP doesn't need to be written.
I think the difficulty is that many la are saying what you are - which if the reality was true wouldn't actually be an issue. But in my case, and many others it isn't.

For example my la says school can give Ds his OT, provide his sensory stuff, give him his physio, provide a 1:1 LSA, provide social skills groups, provide ELSA support and provide reading and spelling support.

Realistically they can and are providing support with emotional literacy, reading and spelling and Ds has a key worker shared with 1 other student.

But they don't have sensory equipment, or a room to provide that, or really an LSA available to do 30minites OT and physio daily etc. Plus a 1:1 LSA is provided for Ds but they can't do all school hours within funding available.
The la refuse to tell the school to give Ds X,y and z as say it's up to me and school to arrange it with funding available - and that's where an EHCP comes into its own.
Ime it's the wording that's very ambiguous. Because can provide and can provide to the level required to meet best possible outcome are actually often at odds with each other.

But, like as you've said above I'm actually in a good position ATM. Ds last secondary school could not recognise nor meet his need and he fell apart. The school he's on trial at have more available within Sen support and Ds is managing fairly well. He isn't getting all that's written is required but on the whole he is managing OK with what we've got (ATM).

The system has many positives in helping a good variation of the population and raise standards across the board - just seems there is a very small population somewhere in the middle that it doesn't fit.

No, I'm really not trying to shut anything down, zzzz, but I'm concerned that people on this board need to have the right information. I'm also not belittling your experience, but I am setting out facts. It's a fact that the DfE announced that most statements should become EHCPs, and the criteria for EHCPs and statements are matters of fact verifiable from the respective Acts of Parliament and Codes of Practice. It's untrue to say that either charities or lawyers only deal with things when they have gone wrong - in fact the charities would and do say that they want to make sure that parents are properly informed so that they know where they are and can ensure their children get the help they're entitled to.

So the majority of children who have statements require additional funding beyond that which is available in school? That wasn't my impression but IF it is the case the smaller number who don't, won't.

Well, yes. The criteria for statements were very similar to the criteria for EHCPs, including the one about requiring support over and above what is normally available through mainstream resources. And, as I keep saying, there is loads of case law to the effect that funding is not the only criterion. For instance, Manchester City Council v JW in which the Upper Tribunal said:

"The question was not whether the necessary provision would come from one budget or another, but whether it would be provided at all without a statement, not for financial reasons but because of the failure to that time of the school or local authority, with the best will in the world, to understand what was needed and provide it. Resources are not available just because they exist if the council is unwilling to use them because, wrongly, it does not consider that they are needed. The benefit of a statement is not just that money will be available for the provision, but also that its precise terms can be the subject of an appeal procedure, and where there is disagreement between the parents and the local authority as to what is needed, and as to the source of funding, that can be resolved on appeal. ... It is not available if it is withheld."

Absolutely it shouldn't be necessary to be adversarial. But unfortunately the system often works so badly that parents have little choice but to challenge poor decisions through the tribunal, and in general experience seems to be that things have got worse since the Children and Families Act came into force. It is a ridiculous situation that around 85/90% of appeals against refusals of assessment either get conceded by local authorities or are won by parents: that doesn't happen because parents are being adversarial.

Oh dear - I had been catching up and am sad to see things have got a bit tense. I was going to say thanks to OP for posting. Your question has got lots of different views out in the open, which is far more useful when looking at all sides of the same problem.

zzzzz I think your experience maybe doesn't match with what's in the SEN COP regarding transfers etc, however your questions up-thread have focussed my mind: evidence, evidence and more evidence!

OP - it looks like this page might be useful to explain transition and what the EHC assessment should have looked like.

I welcome different experiences, and different opinions, and have found all comments to be useful so I want to thank everyone again for taking the time to comment and provide me with links, etc.

I think that life as a parent of a SN child is hard enough, and many of us struggle at some points, so it is great when we can help each other with practical tips and learn from each other's experiences.