EHC assessment tribunal

It’s been a while!

Life after our Lake District get away has picked up right where it left off, i.e. hectic! Work is crazy busy with the end of term looming and schools trying to cram events in, and life is crazy busy – again with the end of term looming and the sports days, plays, collections for teachers etc that come with three primary school aged children.

I’ve referenced in passing a couple of times that my request for Katie to have an EHC needs assessment carried out was refused by the LA so I appealed it and it went to tribunal. This process has taken up a massive amount of my time and emotional energy in terms of putting Katie’s case forward. I put the initial application in just after Christmas, so this has been going on alongside daily life over a 6 month period and it’s been horrible.

The system is not set up to support SEN children and their families. It’s designed to intimidate, delay and offer the minimum amount of help possible.

The LA rejected the initial assessment request because “The evidence clearly showed Katie’s level of need is well understood and is being appropriately met by her current school. Katie is achieving well academically and making progress. Therefore the EHC Panel is confident that an EHC assessment is not required at the present time”. I’m not sure what evidence they were looking at there. Presumably if someone’s needs are being appropriately met by their school they wouldn’t dread going in every day, wouldn’t be under CAMHS, and wouldn’t be dysregulated on a regular basis and needing recovery time after school. But what do I know.

I researched quite a bit before deciding to appeal the decision. It was hard work getting the forms together to do the request in the first place and I didn’t want to go through a whole load more paperwork for an appeal if there was no point. I contacted the autism advisors at the council (who ironically have absolutely no input or sway in the council’s decision on whether to carry out an EHC needs assessment even though they often know the child involved), SENDIASS, and SEND Family Instincts and they all said I had a case and should appeal. I’m also on support groups on social media for children who are struggling in school and the general consensus there is that LAs (seemingly across the country not just ours) reject EHC assessment requests as standard in the hope that parents will give up and go away. If a rejection is appealed a lot of the time the LA will concede before the case gets to tribunal, and if it does go to tribunal a ridiculously high proportion of them (something like 96%) go in favour of the child / family.

Why is it standard practice for the LA to reject a request for an EHC needs assessment? That in itself is shameful. No parent is going to go through the process of filling in a multitude of forms and having to highlight what their child is like in their lowest moments for the fun of it. When you’re applying for an EHC assessment it’s because you’ve run out of options and you’re recognising that your child isn’t managing in a mainstream educational setting. The standard practice for the LA should be to act as a sounding board and support system for families, not effectively tell them to go away and stop whining. Why not assume families know what they’re talking about and are asking for help because they need it? Instead they make it as hard as possible and set a load of random thresholds that need to be met while pushing back on parents and assuming they’re making it up.

I submitted the appeal and kept everything crossed that the LA would concede but they didn’t. I received an email from a solicitor in their ‘People Team’ saying she had been instructed by the local authority and all communication had to go through her moving forward. Not necessarily a problem in itself and it wasn’t a nasty email but the whole language around tribunals, judges, solicitors, and being referred to as ‘the appellant’ rather than your name is scary. I don’t have a legal background or any legal knowledge and I wasn’t aware that a solicitor would be involved from the council. I thought I would be arguing my case and someone from education services at the council would be arguing their case. You throw a solicitor into the mix and it gives it a very different feeling. It was intimidating and I felt out of my depth.

The LA’s mean reasons for opposing our appeal were:

1. They said the occupational therapy report we’d submitted wasn’t relevant because it was carried out in August 2021, before Katie started at her current school.
2. They felt the driving force behind our application was concern over what would happen when Katie starts secondary school, which they said shouldn’t be considered because she still has a year left of primary school.
3. They said the fact that Katie’s behaviours and anxieties have improved since she left her old school and moved to her current one showed that her current school is meeting her needs
4. They cited again that she is meeting or above the academic expectations for her age group.

You get two deadlines with an appeal, one to put your evidence forward and another one a couple of weeks later as the absolute deadline for any additional evidence. I used the second deadline to challenge the LA’s views so I sent my counter arguments as additional evidence, which were:

1. The OT report was 100% relevant as it highlighted sensory issues and causes for dysregulation which are applicable and need to be taken into consideration in any environment. It also made recommendations to be implemented at school, most of which currently haven’t been.
2. Concern about secondary school is definitely one of the reasons for wanting an EHCP for Katie but it’s not the only one. She’s struggling in school right now so needs extra measures in place as soon as possible. Also she may not be starting secondary school for another year but it’s only 4 months until we have to make our application for her secondary school so it is a relevant consideration.
3. Katie’s behaviours and anxieties have definitely improved since moving schools, and we acknowledge and appreciate the support she has at school but that still doesn’t mean it’s enough. She’s managing to tolerate school at the moment rather than hurting herself and saying she can’t imagine ever feeling happy as she was at her old school. That just means she’s unhappy rather than desperately unhappy, it doesn’t mean her needs are being met. Also how can they know her needs are being met unless they do the assessment?!
4. I couldn’t care less about her academic achievements right now and I’m fed up of them being highlighted constantly as a reason why she doesn’t need any help. EHCPs aren’t just for kids who are falling behind academically, they are also supposed to cover their emotional and social health and that’s what Katie needs one for.

Obviously I said it in a more professional way than that! The LA then submitted their final evidence literally about an hour before the absolute final deadline which meant I couldn’t counter it. They said it was a healthcare issue not an educational one and that CAMHS was dealing with that (great we’ll just hang tight until late 2023 then, which is when CAMHS told us would be the earliest they’ll be able to get round to seeing her), an EHC isn’t required to access OT support and we could go through the GP for that (already tried that and the GP told us it had to go through a CAMHS referral or she had to have an EHCP that highlighted the need for it) and – yet again – that Katie is making progress academically (banging my head against a brick wall with that one).

I was quite worried that not only did the LA not concede rather than go to tribunal, they also came back not once but twice to submit counter arguments against us. I’ve been told so many times (mainly by Katie’s old school but to an extent also her current one, plus prospective schools I’ve spoken to) that Katie is fine, or that they don’t see the behaviours we see, or that it must be a parenting issue not a school issue, or that her needs can be easily accommodated in school, and for the most part I’ve stood my ground because I know Katie better than these people and I know she needs me in her corner. But then with the LA refusing to back down and saying the same sorts of things I felt really defeated. It’s such a battle to get anyone to listen or understand and it does make me feel like I’m an overbearing, over anxious, over protective pain in the arse parent.

We had a month to wait from the final deadline for evidence to be submitted until the date of the hearing. It’s like when you’re little and you’re so desperately excited for Christmas that time goes sooooo slowly, except that instead of excitement to deal with you’ve got dread. A month to think things you don’t want to think about. What if the tribunal sides with the LA and I’m in that tiny percentage that doesn’t win the appeal? What does that say about me as a parent and as Katie’s advocate? What if we lose? We’re out of options, that would be the door to any extra support in school shut. Do we keep Katie in school? Do we home educate? Do we keep pushing her to breaking point? Why didn’t I think to say xyz? It’s too late now and I can’t change it. What the hell is going to happen to her when she gets to secondary school if she doesn’t have an EHCP in place?

We received an outcome from the tribunal on Wednesday. They upheld our appeal and have ordered the council to secure an EHC needs assessment for Katie.

I am so bloody happy I feel like I’ve been walking on air the last couple of days. I’ve heard the expression of having a weight lifted off your shoulders but I’ve never physically felt it until now. I know the assessment could be carried out and they can still say she doesn’t need an EHCP. I know they could issue an EHCP and it could be useless. I know it’s not going to happen tomorrow and we still have a way to go. I know that ultimately this is about Katie and what’s going to benefit her, but….I finally finally finally feel heard and I feel vindicated. The judge in their reasoning of their decision referred back to all the points I’d raised and highlighted them as valid and necessary, in comparison to the LA who they said had provided conflicting evidence and had incorrectly applied the SEND Code of Practice.

My experience of school as a child was positive. I absolutely loved my primary school and most of my time at secondary school and I was sad to leave. If we didn’t have Katie I would probably still be singing the praises of education and mainstream schools because Alice is learning well and is happy at school, and Matthew has settled in well since starting in reception. When everything is going smoothly you can sit back and admire the job the teachers do (which I still do, I think they are amazing), you can sit proudly at parents evenings, you can look forward to “aren’t they adorable” at the school plays and nativities. Having Katie has given me a whole new perspective on the school system and while it’s fine for the kids who are fine, it’s not fit for purpose for the ones who aren’t. It’s understaffed, there isn’t enough training or understanding of how to support these kids, it’s underfunded, it’s reactive rather than proactive, it’s painfully slow, it’s exhausting, it’s parent blaming rather than supportive. It sucks and there are thousands of children and families who are being forced to battle through it who are hidden in plain sight.

A long way to go, but in the meantime: screw you to our local council, go and get my child her EHC needs assessment like you should have done 6 months ago.