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«IPSEA Legal Briefing Date of resource: October 2014 Refusal to assess pack: Advice for parents and young people appealing to the Special Educational ...»

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IPSEA Legal Briefing

Date of resource: October 2014

Refusal to assess pack:

Advice for parents and young people

appealing to the Special Educational Needs

and Disability Tribunal

Contents

1 How to use this pack 2

Key to abbreviations and terms 2

2 The practicalities 3

2.1 What is the Tribunal? 3

2.2 What powers and duties does the Tribunal have? 3

2.3 Your right of appeal 4

2.4 Filling out the Appeal form 5

2.5 Giving your reasons for your appeal 5

2.6 What to send in with your form 6

2.7 Evidence 6

2.8 Witnesses 7

2.9 Legal help and representation 8

2.10 Preparing yourself for the hearing 8

2.11 What happens at the hearing 9

2.12 Action checklist 10

2.13 Timetable of the appeal process 11 3 Making your case 12

3.1 The law and your case 12

3.2 What if the school/institution could do more? 13

3.3 What the LA may reply 14

3.4 Your Reasons for Appeal 15

3.5 Evidence about difficulties 16

3.6 Evidence about what cannot be provided without an EHC plan 18

3.7 Witnesses 19 4 The legislation 21

4.1 Identification and assessment of children and young people with special educational needs 21

4.2 What are special educational needs and provision? 23

4.3 Schools’ and LAs’ obligations to publish SEN information 25 5 Further help 33 Copyright © IPSEA 2014 Version 3.1 IPSEA Legal Briefing Page 2 of 33 Refusal to assess pack 1 How to use this pack This pack has been written to help you take an appeal to the Special Educational Needs and Disability Tribunal against a local authority’s refusal to assess your child or, if you are a young person, yourself. This pack relates to the law in England, the Children and Families Act 2014 (C&FA 2014) Unfortunately IPSEA is not able to offer free representation to everyone who uses our services but we hope this pack will help you put together an effective case and benefit from our many years of supporting parents at Tribunal.

Many parents successfully represent themselves at the Tribunal. Its website, http://www.justice.gov.uk/tribunals/send/appeals, provides useful information on the procedures and how to submit your case.

There is no set way of using this pack – but it is probably useful to begin with section 2 The practicalities, which includes a checklist and timetable to help you remember what you must do and when.

Because this pack focuses on one kind of appeal only – against a decision not to conduct a statutory EHC needs assessment – we have been able to provide detailed advice on making your case and this forms section 3 of the pack. You will see we refer to and explain the law throughout but the actual law – quotations from the C&FA 2014 and the SEN and Disability Regulations 2014 – is left to the end so as not to overwhelm you at the start! You might want to look at this to see precisely what the law says local authorities (LAs) must do and what your rights are as a parent/young person, but you don’t need to do this to use this pack.

If you are over 19 and have been refused an EHC needs assessment, please ring IPSEA’s Tribunal helpline 0845 602 9579.

If you are unclear or unsure about anything, remember that IPSEA’s telephone advisers should be able to help: Tribunal helpline 0845 602 9579.

Finally, we want to wish you well with your appeal and hope that our pack enables you to put the best possible case.

Key to abbreviations and terms The The Special Educational Needs and Disability Code of Practice Code 2014 EP educational psychologist LA: local authority LSA learning support assistant SEN special educational needs SENCO special educational needs co-ordinator (the teacher responsible for overseeing provision for children with SEN) SEND Special Educational Needs and Disability Tribunal TA teaching assistant Copyright © IPSEA 2014 IPSEA Legal Briefing Page 3 of 33 Refusal to assess pack 2 The practicalities

2.1 What is the Tribunal?

The Special Educational Needs and Disability Tribunal is an independent national tribunal which hears parents’ and young people’s appeals against LA decisions about the special educational needs of children and young people.

It also hears claims of disability discrimination against schools.

It produces a free booklet, How to Appeal, and a DVD, Right to be Heard. The booklet includes the appeal form, which can also be downloaded separately from http://www.justice.gov.uk/forms/hmcts/send.

Booklet and DVD are available via the Tribunal helpline 01325 289350 or

from the postal address or website below:

HMCTS - Special Educational Needs & Disability Tribunal 1st Floor Darlington Magistrates Court Parkgate DL1 1RU www.justice.gov.uk/tribunals/send SENDISTQUERIES@tribunals.gsi.gov.uk

2.2 What powers and duties does the Tribunal have?

There are limits to what the Tribunal can decide. If you win your appeal it can order your LA to make an EHC needs assessment. It cannot order the LA to draw up an Education, Health and Care Plan (EHC Plan) at the same time and it cannot order a school to make provision (extra help for you or your child) if it concludes that an EHC needs assessment is not needed.

The Tribunal is governed by the law, both the Act of Parliament and its associated regulations, and has to follow the interpretation of that law by higher courts in judgments about previous SEN disputes. The Tribunal must ‘have regard’ to the SEN and Disability Code of Practice a (the Code) which advises schools and LAs on identifying and making provision for children with SEN. The Tribunal is not bound to follow the Code to the letter but it generally accepts the Code’s guidance in coming to its decisions.





The Tribunal looks at the evidence put before it and decides whether the LA decision followed the law and the Code. It will also make a decision based on what is right for the child at the date of the hearing.

The beginning of Chapter 9 of the Code is useful to read to understand how LAs make decisions about whether to assess.

a

Statutory guidance which tells LAs and others how to carry out their SEN duties:

Special educational needs and disability code of practice: 0 to 25 years, Ref. DFE-00205Download from:

https://www.gov.uk/government/publications/send-code-of-practice-0-to-25 Copyright © IPSEA 2014 IPSEA Legal Briefing Page 4 of 33 Refusal to assess pack

2.3 Your right of appeal The letter from your LA turning down a request for an EHC needs assessment

must arrive within six weeks of that request and must tell you about:

(a) your right to appeal that decision;

(b) the time limits for doing so;

(c) information about mediation;

(d) the availability of— (i) disagreement resolution services; and (ii) information and advice about matters relating to the special educational needs of children and young people.

Your LA must also tell you when it refuses a request for assessment from a school or institution, or if the LA itself has otherwise become aware that a child or young person may have SEN and has then decided not to conduct an EHC needs assessment. In both these cases it must make the decision within six weeks of the request or of becoming aware and inform you of it and that you have a right of appeal to the Tribunal.

This is an appeal under section 51(2)(a) against a decision made under section 36 of the C&FA 2014. (See section 4 The legislation.) Note: you have no right of appeal if the LA has carried out an EHC needs assessment in the past six months.

To be able to appeal, you must be a parent or a young person over the age of

16. In education law ‘parent’ means you are either a birth parent, have acquired parental responsibility or have care of the child (e.g., a foster parent or grandparent with whom the child lives).

Appeal deadlines and mediation To check your deadline for sending your appeal to the Tribunal, first, look at the date on the letter from the LA – make a note of the date two months after this. This is the deadline by which you must register your appeal with the Tribunal.

However, this deadline may be changed if you enter into mediation with your LA.

The law says you have to consider whether to enter mediation before you can register your appeal so at the very least you must ring the number the LA gives you (there should be alternatives if you cannot use a phone), talk to a mediation adviser, and get a certificate from them saying you have done so.

You do not have to engage in mediation to register your appeal, only consider it, and if you have had a lot of discussions already with your LA you may feel it would be of little use and you want to save time, get your certificate, and appeal right away. If you have never had a proper talk with the LA about why they have refused assessment, mediation may help. You might also consider it to give yourself more time to appeal as if you enter mediation, your deadline for registering an appeal changes: your deadline then becomes one month from the date a certificate is issued after the mediation session, and that session must be arranged within 30 days of the LA being informed that you Copyright © IPSEA 2014 IPSEA Legal Briefing Page 5 of 33 Refusal to assess pack want to mediate. You may well want to talk to IPSEA about things to be aware of before going into a mediation session.

In the letter refusing assessment, your LA must provide you with the following

information on your rights of appeal:

(a) your right to appeal that decision;

(b) the time limits for doing so;

(c) information about mediation;

(d) the availability of— (i) disagreement resolution services; and (ii) information and advice about matters relating to the special educational needs of children and young people.

The Tribunal may well waive the two-month deadline if all this information is not provided and you would be allowed to appeal late.

Mark any deadlines on your calendar and in your diary. (If the two months/one month ends in August you have until the first working day in September to get the form to the Tribunal.) If you have missed your deadline ring IPSEA for advice on 0845 602 9579 and/or the Tribunal on 0870 241 2555 (England);

01597 829 800 (Wales).

2.4 Filling out the Appeal form

In the boxes, fill in:

• Your child’s name and date of birth, or yours if you are a young person

• Your name and address

• Details of anyone else who has parental responsibility (if you have difficulties with this talk to IPSEA)

• The name of your LA and the date you were informed in writing that they would not carry out an EHC needs assessment

• Any special requirements to make the process accessible to you: say here if, for instance, you need documents translated, wheelchair access, a reader or a signer, or cannot manage negotiations over the phone.

• In the appropriate section of the form, say that you have asked the LA for an EHC needs assessment but it has refused

• The reasons for your appeal: it is often easier to put these on a separate sheet and write ‘See separate sheet headed Reasons for Appeal’ in the box on the form.

2.5 Giving your reasons for your appeal This is where you set out why you think the LA must assess your child, or you as a young person. Try to put in everything you need to say, your full case, at this point (Section 3.4 Your Reasons for Appeal will help you with this).

You must send in enough information for the LA to be able to respond.

Copyright © IPSEA 2014 IPSEA Legal Briefing Page 6 of 33 Refusal to assess pack DO

• Keep it short and to the point.

• Separate your points into paragraphs.

• Number your paragraphs or organise them under headings.

• Refer to any evidence that backs up your points. (You can send more evidence later and should say so, if for instance you will be getting a speech therapy report because the LA has not obtained one.)

• Refer to the legal issues.

DON’T Get bogged down on history. If there is a long history of difficulties between you and the LA let the evidence (e.g. letters between you and the LA) speak for itself.

2.6 What to send in with your form

With the completed and signed form send the Tribunal the following:

• A copy of the letter the LA sent you that told you of its decision

• Your mediation certificate

• Your evidence for your child needing assessment

• A document listing all your items of evidence Don’t send original documents, send photocopies, and keep a copy of everything you send, including the form.

2.7 Evidence It is important to obtain any written evidence as soon as you can. It is best to send in all your written evidence with your Appeal form because this means you have the main substance of the case set out with supporting evidence right from the start and you may discover more about the LA’s arguments if it is able to respond fully. If you have a good case and evidence, the LA may give in rather than fight the appeal. If you are having difficulty getting information from the LA, you can write to the Tribunal well before the hearing explaining what the document is and ask the Tribunal for a ‘direction’ to make the LA release the document: contact the Tribunal and ask for a ‘Request for Directions’ form, or download it from http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=3044 Unless the LA has a good reason for not providing the document the Tribunal will order the LA to release it.

If you think you need to send in evidence later in the process, tell the Tribunal what you expect to obtain and when and submit it by the deadline you are given.

Copyright © IPSEA 2014 IPSEA Legal Briefing Page 7 of 33 Refusal to assess pack

2.8 Witnesses Witnesses are people who can speak to the Tribunal panel at the hearing.



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