About to head to Tribunal

[SeekingSupportasaSENmum]

Good Morning Everyone, as it says, we are about to head to tribunal. I'm fairly fragile and trying to line up my ducks so to speak but any positive guidance would really be appreciated.

Our background is that our DD is 4.5 year old with Autism, GDD and is non-verbal (probably the greatest need). We have recently left another Nursery as they were not following EHCP and admitted they were struggling. That was fine - very happy to have her at home and do what I can until September.

Here's where it's now tricky......

We received an email at the start of last week from our SEN case worker informing us that 2 settings had offered a placement. We replied asking if this meant we had a choice. Our SENCO assumed we did but ultimately we did not. The LA named a setting within a matter of days and it was the one we were concerned about. Regardless we visited and it did not go well. We have had some very challenging behaviour since from DD such as screaming in the car, presumably worried about where we are going, wet beds etc. I have never seen this level of stress in her before. We tried to speak to our SEN case worker but she has written us off now as she has "worked hard for a year trying to secure a place - be grateful".

We are and I know many would bite off our arms for this; however, I can only be grateful if this setting is best fit and my gut is telling me its not. Since the diagnosis 2 years ago, everyone seems to know what is "best" for my child and following most guidance has led to nothing but stress, sadness and anxiety on our family. DD has made the most progress at home as the setting is right and therefore can be productive.

I have spoken to SENDIASS and I was surprised how supportive of the SEN caseworker and LA considering they are meant to be unbiased. But again, what was running through the vein of conversation was I should be grateful as places are like "gold dust". I do understand this and we aren't ungrateful, but at the end of the day this is my child and I have to fight for what we feel is best as we know them best. I can't believe how many times we have had to correct SLT, Nursery, OT on things they say she can't do but actually can.

Gosh this is so long - so sorry.....

So in short, I simply don't know what "evidence" I can produce on gut feeling. I don't know whether to come out of the process and to try and repeat it next year naming just the one school - I just don't know what to do. We named schools without being allowed to visit and again we raised this with the SEN caseworker and she said "That's up to the school not me" so we really felt blind in all this. I'm really worried about this as the LA and CC seem so hard and I'm not sure I am mentally strong enough for this fight. It's also causing great stress on my marriage and my other child - but that's another thread probably.

Any thoughts (gently please) would be appreciated x

Do appeal now, waiting a year is unlikely to change anything. Tribunals are currently taking a long time, and while phase transfer appeals are prioritised there is still a long wait.

Unless your preferred school is wholly independent (is it?) the LA must name your preference unless they can prove:
-The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) of the child or young person; or
-The attendance of the child or young person would be incompatible with the provision of efficient education for others; or
-The attendance of the child or young person would be incompatible with the efficient use of resources.

One thing to note, the LA don’t have to provide the best provision, only what is appropriate and reasonably required.

To get evidence you will most likely need independent reports. You should also appeal B&F as they will be written to support the placement named in I. Submit SARs to the LA, both schools and nursery too.

If DD wasn’t receiving the provision in F and it was specified and quantified you could have enforced the provision, via judicial review if necessary. Unfortunately if it is vague and woolly with wording such as “access to” “would benefit from” “regular” “opportunities for” “as required”… it isn’t enforceable and you should try to get the wording tightened up. Now you have already removed DD you need to inform the LA you aren’t EHE and they are still required to make the provision specified and quantified in F.

Unfortunately in many areas SENDIASS aren’t helpful. They repeat the LAs unlawful policies. They receive LA funding so aren’t truly independent and will ultimately toe the party line. IPSEA and SOSSEN are better. Some areas also have a truly independent parent charity.

It’s not uncommon for DC to display different skills in different settings so if you have had to correct nursery, OT, SALT on things they say DD can’t do could it be DD isn’t demonstrating those skills in nursery/therapy sessions?

Firstly, thank you. Thank you for taking the time to write this reply as I imagine it took some time. It is much appreciated.

No the school of preference is not independent, it is of the same Trust as the one named. The named setting seemed heavily focused on OT when this isn't mentioned in our EHCP particularly. The focus is the delay and the speech.
We do have a private SLT that has been working with us at home for 18 months - would a report from her be an example of evidence? What would she need to focus on? The named setting said an SLT comes in once a week but our DD has been allocated 1:1 and we feel it would need to be greater then once a week - but right now, we need to get the setting right.

You are quite right - DD was not displaying any skills until I went into Nursery and sat her down at her table and completed an activity with her. It was the same with going to the toilet. I just don't think they knew how to go about it. I provided all the toys, some sensory bits and all the visuals including a PECS books and additional reading I had been doing which was useful. They just simply didn't or couldn't apply it.

I tried to ask SENSIASS why if 2 places had made an offer, why we did not have this option of choosing - the response was simply that the place had been filled and the LA made a decision.

We do have a logistical reason as well but I don't think it would be counted as SENDIASS said that our location doesn't matter as transport provision is offered (this is something we declined).

Our NHS OT who offers a block here and there was surprised that we had been allocated a setting and indicated that the second (our preference) would be a better fit. The response from the SEN caseworker and SENDIASS was that "the LA'S decision is not to be question by NHS colleagues as this is not their remit - I will take this up with the Senior SEN team."

Did the nursery have advice from the Area SENCO, any specialist teaching service and other professionals? Although as you have removed DD I wouldn’t dwell too much on this.

Don’t focus on saying you should have been offered a choice of the 2 as that’s not how it works. The LA must name your preference unless they can prove one of the reasons in my pp.

If there is a reason transport isn’t suitable or e.g. travelling further away isn’t suitable it may well be relevant.

Yes, an independent SALT report could help with appealing. You would need to make sure they have experience of writing SENDIST level reports. Outlining needs, provision and outcomes. Focusing on detailing, specifying and quantifying SEP.

DD must receive whatever SALT is specified and quantified in section F. If this says once a week this must be provided. The same if it says twice a week. However, many SS have weekly direct SALT and then other staff also do SALT work during the rest of the week and embedded into the curriculum.

Do you have it in writing from the OT? If not, you need to try to get it in writing. In future follow up all verbal communication with emails so you have a paper trial should you need it.

If DD is receiving OT it should be in section F even if it is provided by the NHS. Having it in F means DD will receive more therapy, over a longer time period and without sitting on waiting lists than would otherwise typically be available. It also means it is far easier to legally enforce it.

Would you mind terribly if I messaged you as it seems to be just you and I? I completely understand if not as you have given so much of your time already

Of course you can.