Education, Health and Care Plans Problems: Possible alternatives to challenging a Local Authority's decision in Tribunal

Jonny: Hello and welcome to the latest podcast from the Doyle Clayton Education Team. My name is Jonny Robinson and I am joined by Fachiema Menjoh, we are both Legal Advisor’s in the Education Team, and have a specific focus on Special Educational Needs. We have experience of assisting parents in and out of the SEND Tribunal.

Today, we are going to discuss whether, where issues arise with a child’s EHCP, there are any alternative ways to challenge a decision by the Local Authority, other than via the SEND Tribunal. Although the Tribunal is the primary avenue to address any issues with a child’s EHCP, it can be a costly and time consuming process, often, issues will need to be resolved quickly.

With that in mind, Fachiema, in your experience, are there any alternative methods that you suggest and/or have found to be productive.

Fachiema: Yes Jonny, there are quite a few alternatives that parents and guardians can look to. One of those is Annual Reviews, which are an opportunity for the professionals involved in delivering the provision in your child’s EHCP to meet and amend your child’s plan to ensure that it still meets that child’s needs. Local Authorities are responsible for arranging the review, however if the child is in a school or college, the placement that they’re in will often be the ones who are tasked with holding the meeting and gathering the evidence. One of the benefits of the school holding the meeting is that the school staff will know your child the best amongst the professionals working with them, and a lot of the time will already have a relationship with you.

Jonny: Do you see any drawbacks with the meeting being held at the school or college?

Fachiema: There can be some drawbacks to attending a meeting at your child’s school or college – particularly if the school are arguing that they cannot meet need and want your child to be moved to another placement. This can be quite contentious and it can place further strain on an already fractured relationship and that make for a tense atmosphere.

Post-covid, however, one practical change is that many annual reviews are held virtually, which can help to put some space, in both a physical and metaphorical sense, between you and the school.

Jonny: Ok, do you still see a benefit in attending an in-person annual review, where possible?

Yes, because it's always good to have everyone in one room face to face. It may be that in the case of some of the professionals involved in your childcare, you've actually never met them. And especially post COVID things are still opening up in terms of being able to actually attend face to face meetings, appointments, assessments, etcetera. So as a kind of first option, I would encourage parents and guardians to try and attend in person meetings where they can, if that's not going to present any kind of health risk or safety risk, or anything like that, but if that's not an issue then yes a face to face meeting can be can be very positive and advantageous and can lead to some problem solving which happens quite quickly.

Jonny: How often do annual reviews take place?

Fachiema: Generally-speaking, annual reviews actually take place every 12 months, and that’s usually following either the issue of a final EHCP or the last actual annual review. However this is the statutory minimum and plans can be reviewed a lot sooner. For example, parents have the ability to ask the Local Authority for an early statutory review at any point. You may decide to do this because:

• Your child has been or is at risk of exclusion
• The provision in the plan no longer meets your child’s education, health or social care needs (or even your own needs) or;
• The plan no longer accurately describes your child’s needs.

The annual review is therefore a key mechanism by which you can ensure that your child’s plan is kept up-to-date.

Jonny: Am I correct in saying that a child’s placement can also write to the local authority on the parents behalf to request an early review?

Yes, that's correct. So it doesn't necessarily mean that you have to be the one to request the review, the school can actually do that on your behalf.

Jonny: What benefits, if any, do you see to requesting an early review, then say, appealing to the Tribunal?

Fachiema: Unlike the tribunal process, an annual review meeting isn’t adversarial, where you have competing sides and they also have competing interests. Annual Reviews are child-centered; they’re focused on monitoring your child’s progress, crafting a plan which is reflective of your child’s needs and making sure that the child is being supported by the right therapies, training, equipment, teaching methods and also resources. As the meeting is centered on the child or young person, attention has to be paid to that child or young persons’ wishes and feelings. The local authority has a legal duty to obtain their views. This may be done by the child/young person providing written answers to questions or it could be done by asking them those questions in person and the person asking the questions writing down and recording their responses.

During the tribunal process, the working document version of the EHCP is often passed between multiple parties over a series of weeks or even months, and this can be a painstaking process. However, at an annual review, parents and professionals are able to discuss the key aspects of the plan face to face, and in real time, with reports and other written contributions to the plan being submitted ahead of that meeting.

Jonny: Other than challenging or addressing practical issues with an ongoing EHCP, are ARs important in other circumstances?

Fachiema: In cases where the Local Authority are considering ceasing a child or young person’s plan, the review meeting is an opportunity for that parent or guardian to argue why a special educational provision should continue to be made for them. For example, a Local Authority may argue that a child’s special educational needs have changed so significantly, that they no longer require the SEP set out in their plan. Where the Local Authority are seeking to cease the plan of a young person because they are over the age of 19, for example, a parent may wish to argue that the young person hasn’t met their educational or training outcomes yet, so they still have progress to make.

An example of that, that I dealt with in my own case load, was of a young person who was considered as being extremely vulnerable in terms of their susceptibility to COVID. And because of this their parents, who were actually medical doctors, decided to take him out of his college placement to protect him from contracting COVID at his college. That meant that he was only in college for about 30% of the time, when the college produced the attendance statistics and presented those to his parents.

But the other there were other issues at the college, for example, he had ASD and a couple of other medical issues such as recurrent hearing infections, and because he had ASD and was used to having routine and a specific timetable, where there were changes in the timetable because staff were often not available because they were sick with COVID, it meant that some of his lessons were not performed or it meant that he wasn't getting, what was supposed to be, the therapy that was in the plan. So there was no consistency of provision between teacher to teacher or therapist to therapist as well, which meant that it was actually better in his case for him to be home, where he did actually have some consistency, as his mum was able to provide some of the provision in the plan herself. However, because he wasn't in college, the local authority and the college argued that, he's met his outcomes, but really our argument was that he's not been in college enough to show any evidence that he actually hasn't hit outcomes, and that means that there was actually still progress to be made. So we were able to get the local authority to reverse their decision to cease his EHCP.

So that was that an example that I can think of off the top of my head of where it was actually quite important to look at the available evidence to combat the decision to cease to maintain an EHCP, because statistics like attendance figures, don't reveal the whole the whole story, really.

Jonny: Yeah, that’s really interesting, that sounds like a really good result.

Just as you were going through the other review process there Fachiema, I was seeing similarities with the mediation process. I’m aware that we get a lot of enquires from parents regarding mediation, what are your key considerations that parents should take into account, regarding mediation?

Fachiema: So one thing that’s come up in some of the enquiries that we’ve had is parents believing hat they need to agree to mediation in order to access a multi-agency meeting in regards to their child, and that’s not actually true. So being able to have a multi-agency meeting with the stakeholders in your child’s education is not contingent on your agreeing with mediation. If your mediation meeting is taking place, the only attendees is you, the parent or guardian, the mediator, and the local authority officer.

Under the tribunal rules, you can't actually lodge an EHCP appeal until you've considered mediation and you've contacted the mediation advisor within 2 months of the date of the decision letter from the local authority, as to the placement named in your child's plan or as to the decision as to your child's placement. You do not have to agree to mediation and only have to consider it, the mediation yousor has a duty to provide you with information as to what mediation is and how the process may help you. However, once they provided you of this information, you can simply tell them that you don’t wish to proceed with this route and ask them to issue you with the mediation certificate, there are no penalties or any effect on your appeal if you do not wish to accept mediation at that stage and you change your mind and consider it later in the appeals process, if you think that's appropriate.

The decision letter from a local authority should explain this to you and give contact details for a mediation advisor, who should be an independent person. Once you’ve spoken to that adviser, they’ll send you the certificate, which means that you can then use a certificate to lodge an appeal with the tribunal. However, every mediator is different and they all have their own approach to the issues, as will every local authority officer. Some parents find that they're able to come to a consensus the local authority, and so they find mediation to be an actual useful tool to reach that consensus. However, in many cases, parents choose to reject mediation and proceed with an appeal, as it’s the only way to obtain the provision that they are seeking.

Jonny: Are there any similarities that you see between an annual review process and mediation?

Fachiema: So mediation and annual reviews are similar in terms of the benefits of each mechanism, as you have some of the key stakeholders in your child's education in one room and you're able to essentially negotiate the appropriate provision for your child's EHCP plan with them in one space at the same time. Rather than being through a very contentious legal process, which is the EHCP appeal, or through correspondence which can always have room for miscommunication. So it is very similar and it's beneficial, and the fact that you're able to sit down with the people involved in your child's education and go through the EHCP plan, and your concerns about the plan and try and negotiate a package of support for your child, s o they're very similar processes and each process is worth considering before you think about pursuing an ECHPappeal, which is which is a legal process. I have found that some parents find that they are able to get some concessions through mediation from the local authority, but it may be that some of the more expensive parts of their child's provision may still have to go through the tribunal process and be agreed via that mechanism. But if you feel that mediation is worthwhile, then it is something that's worth considering

Fachiema: Jonny, have you any experiences of the different ways a parent can challenge a local authority’s decision in respect of a child or a young person’s EHCP?

Jonny: Yes, yes I have. As you noted, the Tribunal process can be a painstaking and time consuming process, and it can take a lot out of the parents. Often, the EHCP issues are pressing and in need of immediate resolution. I have found that, on occasion, clients have been able to force the changes they want via a Local Authority’s Complaints Procedure.

Every local authority will have a dedicated Complaint’s procedure which should allow its residents to raise complaints about how the LA is providing its services. In addition, the Local Government Ombudsman, which is a public body that investigates complaints about local authorities, has set out guidance on how these complaints should be investigated, and this should be followed by the local authorities.

Fachiema: What are the benefits of raising a complaint instead of appealing to the SEND Tribunal?

The local authority’s complaints procedure will have a prescribed timescale for responding to a complaint, which will vary at each stage of the procedure. For example, often a stage 1 response should be received within 10 working days of a complaint. This is significantly quicker than waiting for a decision from the Tribunal in a hearing, which could take 6-12 months, at least, from the date of submitting an appeal.

In addition, under legislation such as the Children Act 1989 and 2004, a Local Authority will have a wider duty to safeguard and promote the wellbeing of children with disabilities. Most children with an EHCP will have a disability. Therefore, as well as identifying the LAs EHCP failures, a complaint can highlight more overarching duties that they have towards a particular child and show that the LA are not adequately fulfilling these duties. Furthermore, on occasion the complaint can result in compensation being awarded to a parent, where the LA’s service failure is severe.

In addition, in terms of costs, I have found, where legal assistance is required, raising a complaint to the LA will be significantly cheaper than going through a lengthy tribunal process.

I should note here that the use of the LA complaints procedure is usually particular to the facts of the case, the primary avenue for addressing certain EHCP issues remains via the SEND Tribunal. However, where the time limit to appeal has expired or the window has been missed, often due to local authority inaction, then a complaint is an effective way of enforcing your child’s rights.

Fachiema: So, Jonny what kind of success have you achieved via pursuing a Local Authority’s complaints procedure:

Jonny: We recently assisted a parent whose child, Timmy, had been out of education for 1 year following a breakdown in his placement. Timmy had autism and EHCP maintained by the LA. Despite the parent making it clear to the LA that Timmy needed a new placement and an updated EHCP, the LA failed to act on this request. Following months of inaction, we helped Timmy’s mother raise a complaint to the LA, which set out their failures, the duties they owed to Timmy and the actions that we expected them to take in respect of these duties.

Through the complaint, we were successful in securing:

• Timmy’s preferred new placement;
• Up to date assessments of Timmy’s needs;
• An updated EHCP.

In addition, the complaint outcome acknowledged the LA’s failures, offered an apology to Timmy and his mother, which was well received, and undertook to do a range of actions to support Timmy back into full-time education. We raised the complaint in October and by that December Timmy was back in full time education and receiving the support he needed.

Fachiema: That sounds like a great result.

The Annual Review process and the Complaints Procedure are just a few of the ways that we are able to assist parents facing problems with their child’s EHCP or with their education in general.

Parents and guardians should know that there are some circumstances in which only the SEN Tribunal will have jurisdiction. However, if you're not in an appeal window or you don't have a right of appeal, then the avenues that we've discussed in this podcast episode should be ones that you should really consider pursuing. If you need any help and assistance, then we at Doyle Clayton are always here and happy to help.

Jonny: Indeed, more information on our services can be found on our website and as Fachiema says, the Team is always happy to assist, where possible. Thank you for your time Fachiema and thank you for listening.