ASK IPSEA Legal Agony Answers


Can The LA Make Amendments To The EHCP Which Differ From The Tribunal Order?

Parent asks:

 

Are the LA allowed to make changes to the EHCP from that which was ordered by the Tribunal? What should we do if they do not reinstate the EHCP to that which was made by the First Tier Tribunal?

 

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IPSEA answers:

 

It is not entirely clear from your question whether the local authority has issued an EHC Plan which does not fully comply with the First-tier Tribunal’s decision or whether, having complied with the decision, it has, at a later date, issued another amended Plan.

 

If immediately following a Tribunal, the local authority has issued an EHC Plan that does not fully comply with the decision of the Tribunal, then the local authority is likely to be in breach of Regulation 44 of the Special Educational Needs and Disability Regulations 2014 which deals with compliance with Tribunal orders.

 

Without knowing the exact nature of your appeal to the Tribunal it is not possible to say exactly which timescale applies, but the regulations are clear that a Tribunal order must be complied with.

 

You should write to the Director of Children’s Services complaining that the local authority is in breach of its duty to comply with the Tribunal order.

If this fails you may have to apply to the Secretary of State for Education to enforce compliance.  The complaint would be about the local authority acting unlawfully (being in breach of Regulation 44) and made under section 497 of the Education Act 1996. The Secretary of State has powers to direct local authorities to take action to remedy any unlawful act. Complaints can be made online: https://www.education.gov.uk/schools/leadership/schoolperformance/schoolcomplaints-form

 

It may, alternatively, be necessary to make an application to the High Court for judicial review in order to ensure compliance. The time limit for applying for judicial review is as soon as possible but in any event within three months. It is usually necessary to show that everything possible has been tried to resolve the problem before resorting to court action.

 

You can also make a complaint to the Local Government Ombudsman (LGO). For details of the procedure see: http://www.lgo.org.uk/making-a-complaint/ There is also a helpline number to call: 0300 061 0614.

 

If on the other hand, the local authority complied with the Tribunal order by issuing an amended Plan in the form that it ordered, but has subsequently amended the Plan, it may not be acting unlawfully. The local authority is entitled to amend an EHC Plan at any time as long as it follows the process set out in the Special Educational Needs and Disability Regulations 2014.  This involves, among other things, sending you a copy of the EHC Plan together with a notice specifying the proposed amendments, giving you at least 15 days to make representations about the content of the draft Plan and the opportunity to request a meeting with an officer of the local authority.

 

If the local authority has issued an amended Plan and you are unhappy with the content you will have a fresh right of appeal to the First-tier Tribunal.

 

 

Should the family spend money on a Lawyer?
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Parent Question:

I am helping a family go through the appeal statementing process. We are collecting new evidence and collating existing. The parents are considering employing a lawyer who has so far effectively dismissed all the new assessments we have gained and wants the family to have new ones from people that he recommends. This will be very expensive and I don't think that the family will be entitled to Legal Aid. I am concerned that they will be spending money unnecessarily but want them to have the best chance they can. My gut feeling is that they don't need him but what if I am wrong? I am not in this to make a fortune. I charge a nominal rate and just want to help families who need it.

ipsea answers

IPSEA Answers:

Be very wary of people that want to dismiss existing reports out of hand and recommend that everything must be done anew – especially if it is going to cost a fortune and they are only recommending one professional to go to rather than sign posting parents to a few so they can chose.

Get them to explain clearly why they think a new report is necessary in writing and then ask the professional that originally wrote the report to look at the reasoning and comment. Professional assessment - on which a report is based - cannot be repeated too often (usually not more than once in a six month period) and so there is a timing issue. Most parents that come to IPSEA for support through the Tribunal process cannot afford to pay for independent reports. It may well be a case of getting the original professionals instructed by the LA to do them properly – i.e. specify not only the child or young person’s special educational needs but the special educational provision that they individually need to have put in place to support them as a result of those needs.

All professionals – educational psychologists, speech and language therapists, occupational therapists – will be members of a professional body/association. As part of being a member of that body they will have a duty towards the client (i.e. the child) that should always over-ride the fact they are employed by an LA. If they ignore this they run the risk of being struck off as professionals!

The LA has not submitted their evidence to the Tribunal by the due date what can we do?

Parent asks:

We have a tribunal pending and we submitted our evidence by the due date. The LA did not submit but sent email to the Tribunal and us stating technical problems and it would be sent a day later by 5 pm (so a day and a half later). Should we have received a copy when they sent it a day later as I have not received anything from them since now 2 days later? How should I deal with this should I email tribunal regarding it?

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IPSEA answers:

In circumstances such as this, the first thing to do is to contact the Tribunal Admin team and let them know that you haven’t received the evidence.

https://www.gov.uk/courts-tribunals/first-tier-tribunal-special-educational-needs-and-disability

When submitting evidence to the Tribunal, parties should always send it to the Tribunal and to the other party at the same time, so if the Tribunal has it then you should have been sent it too.

We’re sure you have done this, but it’s always worth checking the email junk or spam folders.  If your local authority uses an Egress or similar secure system, then they can’t submit information electronically to the Tribunal using such systems but they may send information to you in this way.  If you have any problems accessing such system then contact the local authority and ask them to send the information to you in an accessible way.  (Note that some of these secure systems automatically delete emails after a set period so you may need to download or copy emails and information from such secure systems.)

Evidence received after the deadline is late evidence and the local authority should be seeking permission for it to be admitted.  In circumstances such as this, where there is a technical issue, the Tribunal is likely to permit the evidence to be submitted late.

 


Negligence

A case of Educational Negligence?
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Parent Question:

I know this is for SEN needs and I currently have a legal aid solicitor dealing with my sons issued statement appeal. My question is have you any advice/ suggestions regarding an Educational Negligence Case? I am not really concerned with the cash figure of bringing a case with TORT law, but after 11 years I am sick of seeing the people with duty of care over my son letting us down and the last two odd years in secondary school have got to have been the worst, not only a challenging time for any child but my son has ADHD, DCD, severe receptive and expressive language disorder and the SENCo has called my son lazy, stated he claims not to know things they know he has been taught, refused to accept the  medical professional advice regarding DCD/dyspraxia and has fought me every step of the way in getting my son's statement.  I have paper trail evidence of everything I am saying is there any direction you could point me please

P.S I like to say that this is an amazing idea and desperately needed THANK YOU

ipsea answers

IPSEA Answers:

Cases of negligence are notoriously difficult to bring in SEN – although not impossible. You would need specialist advice to build such a case and evidence as to what action the LA took or failed to take and the result that caused.

The issues you are recounting are to do with the school directly and do not seem to be with your LA. It is your LA who are ultimately legally responsible for ensuring your son receives the special educational provision in his statement. They must hold the school to account and make sure they are doing what they are supposed too. There are two potential issues 1. That the statement is written in such a “woolly” way that it is not clear what support he should be getting or 2. The statement is clear but the school are just not doing its job. Usually it is a combination of both.

As you have an ongoing appeal over your son’s statement, however, it may be best to see if you can start to resolve things by getting his needs (such as his reading age) accurately described in the statement and then the provision to meet those needs pinned down. Once this has happened then if the school continue to fail to put in the support that is required then you and the LA can take steps to ensure they do.

When you have lots of issues, it may be a good idea to concentrate on one course of action which you know can have an effect, and taking one thing at a time. A claim of negligence – even if it was successful – would not actually ensure your son gets the support he needs now.


Skip to: A: Advocacy, Assessments, AutismE: Education, EHC Plans | H: Health | L: Legal Assistance | N: Negligence | O: Outcomes | P: Parent Participation, Placement, Post 16, Practitioner Matters, Provision | S-Z: SEND Reform, Social Care, Statement provision, Transfer to EHCP, Transport

Please note: These questions are answered by the team at IPSEA Charity, who are trained in SEND law, not by Special Needs Jungle. If your query is urgent, please contact them directly.