Frustrating LA Tribunal and EHCP Responses
- Anna and Sarah
- 12 minutes ago
- 8 min read
Why do LA Tribunal and EHCP responses make no logical sense? Whether you are at EHC NA, in Draft or in the appeal process, you will find that they can be routinely used. These are our current top examples, with our top tips on how to handle them.
Doesn’t the LA have to name my parental preference school?
The LA (and a Tribunal judge) must name the most cost-efficient school that can meet a child’s need. Meeting a child’s need means providing the provision set out in Section F. The LA (or Tribunal Judge) must name the parental preference as long as this is no more expensive than any other school(placement/provider) that can provide the provision in Section F, and this cost includes transport costs. If the parental preference schools transport costs make the placement more expensive, then the parents must agree to pay for this transport (if this is the sticking point on placement cost overall). The cheapest school may not just be dependent upon the cost of the provision in F but on the combined costs of F and transport. Should a transport run already be in place, with available spaces at a school further afield that can meet need, this will be named if it makes the total costs cheaper than closer schools. If you agreed to pay for transport so that your preference school is no more expensive than a school with cheaper transport costs, and then change your mind, the school placement can be withdrawn and the closer (cheaper) school named, meaning that your child has to move school. So, before committing to provide transport for your child, make sure you can commit to this for the whole of their time at this school.
An independent specialist /mainstream school have offered my child a place, but the LA have named a mainstream school that says it cannot meet my child’s needs.
Congratulations! It can be very difficult to get to the point of being offered a place by an independent school, especially an independent specialist school. But sadly, being offered a place doesn’t mean that this will be the school that the LA agree to name in Section I. Firstly, the LA only have to consult with the parental preference school if it is a maintained, academy or section 41 approved school, so they may not even agree to consult with your non section 41 school. Even if they cannot find a maintained, academy or section 41 school that says it can meet needs, often LAs would rather name a school that says it can’t meet need over an independent school. Be prepared to go to appeal! We do support many parents to achieve independent mainstream or specialist school placements, and this can happen without appeal; however, this requires a robust check of the draft with very high-quality evidence. But you should, always be prepared to appeal, it will be a bumpy ride. For help to lodge a BF&I appeal use our webinar here
The EP hasn’t advised on group size, the case worker won’t state group size in Section F of the EHCP, but I know that case law states that they must. How can I evidence what group size is needed?
This is always a tricky one, and one that comes up frequently in LA EP reports and therefore in EHCPs. This is where school professionals can be really helpful. In the absence of any other evidence from an EP, OT or SALT, your child’s class teacher and SENDCo can evidence the group size that your child needs in order to engage with learning or interventions. They can explain that your child only manages during lessons when at a table with the TA and 3 other children and as soon as there are 4 or 5 other children in the group, their attention and focus wanes and they can no longer engage. And that when engaging in an intervention, the maximum group size that they can manage is no more than 3 with a TA who is trained in delivering the intervention. If your LA still refuse to quantify group size in your child’s EHPC with evidence from the school, appeal. Unless there is professional evidence to counter what the school have said, it is extremely likely that the judge will add group size specification from the school’s evidence.
My case officer says I have loads of time, 15 days to send my views and requested amendments to my draft EHCP.
15 calendar days, NOT working days, so not as long as you perhaps first thought. Should you need additional time, you must request this in writing and get a response and timescale in writing – or don’t be surprised if the LA finalise on day 15, with or without your response. For help to thoroughly check and respond to a draft EHPC, use our webinar here: Session 1 Session 2
My caseworker has asked me to send amendments and opinions on the draft EHCP, and is now saying that they can’t make the changes I want to Section B and F.
The law says that Sections B and F must contain professional advice. Section A is for parental views. Whereas the LA are usually only too happy to use policy over law, when it comes to adding parental views to Section B or F, they remember that law trumps policy! Only information from appropriate professional reports will be included in B and F. Parent views must go in Section A which is not a legal section and will not impact on the provision a child receives, or the school placement named. To ensure that Sections B and F are accurate, it is imperative that all needs and specified and quantified provision to meet all needs are included in professional reports. For help to thoroughly check and respond to a draft EHPC, use our webinar here: Session 1 Session 2
I’ve put in my appeal, and the LA’s response is that they still don’t agree. How can I change their mind?
Many people are perplexed at this. It is so obvious that the LA are wrong. All of the evidence points to this. So, there is often the expectation from families that once they have appealed and the LA have the appeal in front of them, they will change their minds. Do not expect them to. Their first response will almost certainly be that their original decision was correct, and your position is wrong. This is to ‘buy them time’. They know your appeal will be lodged or at least in 12 months' time, and they are currently busy with appeal hearings that are pending in the coming week. Their initial response will be a holding response, and they are unlikely to consider the appeal fully until a month or two before the appeal hearing date. Hang in there – the appeal system does work, and you will get there eventually, but remember ‘It is a marathon not a sprint’. For support during the appeal process, book a meeting with a member of the Empowering Team here
I’ve explained in my appeal form that an updated EP assessment is needed, but the LA are not providing one. How can I make them?
As far as the LA are concerned, as outlined in their response to the appeal, their position is that the original EHCP is appropriate and no significant changes are needed. It is your position that the EHCP is not accurate, and further professional advice is needed. Therefore, why would you expect the LA to help you evidence your position which they disagree with? They know that unless you can prove otherwise, the professional advice used for the EHCP is the only evidence on the table, there is nothing to dispute it or prove is deficient. And this suits their position just fine. It is your view that Sections B and F of the EHCP are not accurate, and it is your job to find evidence of what Section B and F of the EHCP should contain. The same goes for other professional evidence that you believe is missing. It will be up to you to provide this, not the LA. For support during the appeal process, book a meeting with a member of the Empowering Team here
During the appeal, I have had an independent EP/OT/SALT assessment undertaken and now the LA want their EP/OT/SALT to assess. They refused to provide an EP/OT/SALT assessment and now I have paid a Kings ransom for one, all of a sudden, they want to do another one. Surely, I can say no?
Can you refuse? Well, a child/young person cannot be over assessed, so, the EP cannot use the same assessment tools, but they can use alternatives, they can observe or meet the child and the professional who works with the child. They can give their professional opinion. If you have allowed your child to be assessed by the professional you have commissioned and then refuse the LA’s professional to do their own assessment, it is likely to be seen as ‘obstructive’, the LA will ask the judge to order you to allow the assessment to take place and the judge will almost certainly agree to this. If the judge did not insist that both parties were able to undertake assessments, their final ruling is very likely to be questioned on a point of law, causing significant delays and major financial outlay to families.
Let’s look at a real case that Empowering Families supported a few years ago. The parents had an independent EP assessment undertaken. This EP assessment clearly demonstrated that the child required provision that was way beyond what could be provided in a mainstream school and provided clear evidence that a specialist education setting was going to be required. The LA hadn’t had an EP involved for a decade. No surprise that they pulled one out of the bag within days of receiving the independent report. They knew that the only way to counter argue this report was with their own updated evidence. The parent was not going to accept this. She wanted to say no and refuse the LA EP access to her child. We advised otherwise, explaining that this would be viewed as obstructive which is never a good look in a Tribunal. The LA EP assessment took place. The LA EP agreed with the majority of the independent EP’s advice. On the day of the hearing, the LA conceded within ten minutes. The child is now at the Specialist Independent school and thriving. For support during the appeal process, book a meeting with a member of the Empowering Team here
This list is not exhaustive and we will, undoubtably have more to add, to this over coming months. We hope that we have given you an idea of how logic routinely defies many Local Authority responses and how you might understand and therefore deal with this successfully. Please use our Facebook group to seek more advice and support when you receive a response from your LA that defies logic. The Empowering Families team is available every day of the year.
For more information about our bespoke 1:1 professional advocacy service please email admin@empoweringSENDfamilies.co.uk , find out more on our website and see our testimonials here . Supporting families to achieve the best possible outcomes for their children with SEND with over 60 years of joint education and SEND legal experience you are in safe hands with Empowering Families of Children with SEND.
We are, and always will be, Stronger Together.
