Our Journey from a poor EHCP to tribunal
By Tim Halford
I am not a lawyer, educational expert, or anything of the sort so the below is only a description of a parents’ journey through challenging our son’s EHCP. The below is our experience and my opinions. If they are incorrect in any detail of law, government policy etc., then it is an honest mistake on my part. If anyone is considering progressing to the later stages of challenging an EHCP then I would wholeheartedly suggest you need the support of someone with more knowledge than I have, most likely a solicitor.
April 2019 – Needs not being met.
Our journey towards a Tribunal is probably best described as starting in April 2019 when our son’s school stated in his EHCP review that they were no longer able to meet his needs. He was in our local mainstream primary school, had had an EHCP in place since starting there and had done two successive years in their reception class but had increasingly spent most of his time in the previous year with his 1:1 in a “break-out” area rather than in the main classroom. Until that point, we had had some issues with the level of 1:1 support funded by the Local Authority (LA) but, thanks to some additional support from the school and individual teachers giving up their lunchbreaks to look after him, we had always been able to have sufficient cover in place. They had previously raised concerns, but we had judged that the benefits he was getting from good modelling by neuro-typical peers as well as the social benefits to him from getting to know local children was larger than any benefit of going to a specialist provision. At this meeting, the school declared that this interaction has diminished as he spent more and more time away from his peers and that the level of additional support, they had been providing may not be sustainable under the financial pressures they were under. As an organisation and as individuals they had done so much for him but had to acknowledge that they could not give him what he needed.
This led us to look again at local specialist provisions we had previously considered, as well as looking in more depth for other options. We received some pressure from the LA to limit ourselves to their schools but quickly moved past this to consider schools in neighbouring areas (we live near a county boundary) as well as independent provisions. We kept a record (in the form of a simple table) of the schools we considered- including how we assessed it (often website only), our judgement as to chances it could be acceptable (Yes, No, additional provision needed) and the reasons for that choice (e.g., speech and language onsite 2 days a week or 45 min journey time). We assessed approx. 20 schools in this way, visiting more than 5 of them in person and this record was especially useful to us later (when we were asked to demonstrate we had considered other alternatives).
I would summarise our conclusions as;
- An independently run Special school specialising in Speech and Language. They had high levels of speech and language therapy on site, spread between small numbers of pupils, a small number of primary aged pupils in particularly small classes with extremely high teaching ratios and showed a willingness to bring in 1:1 support, music therapy etc as needed. A wonderful environment, complete with farm, exercise areas our son would love etc.
- A relatively large special school in our neighbouring LA’s area. They support a wider range of needs, have larger class sizes, good teaching ratios and the speech and language support (although available on site) spread across a far larger number of pupils.
- Schools that were not appropriate for our son, largely due to catering to different types of special needs or behavioural issues. I am sure these are good schools for children with those needs but they would not been a good fit for us.
- Schools that may have been able to provide a good challenge for our son but which we judged the journey time to them would more than balance out any additional benefits they could provide. This was on the basis that an hour or more a day sat in a car would be too much of a missed opportunity for learning.
- Later in the process, a second school run by the same group as school 1 declared it would be opening the following September. Although we considered this, as its benefits and challenges were so like school 1 we didn’t introduce it into the conversation on the basis that, if we completed the EHCP process for school 1 then a transfer to this school would be relatively painless if we later chose to do so.
Following from the annual review we requested a change in placement to name school 1.
Spring 2019 – A lost year
I am assured that what followed over the next year is extremely unusual. However, in our case the LA took 4 months to respond to the annual review, stating that no significant changes were needed to the EHCP and the LA would consider our request for a change of placement to school 1. We then spent months attempting to obtain a conclusion from this consideration. An escalation to councillors and Senior management within the LA led them to inform us that the LA was not considering a change to the placement and should never have advised us to the contrary. As a result of this, our son spent most of an additional year in a school that could not meet his needs without us proceeding to the next stage of our appeal. We heard several explanations, and it has been suggested that this could have been a result of the LA wishing to avoid an expensive placement, but I do not think we will ever know the truth of what was occurring at this time. Fortunately, the local school were able to put some measures in place to improve things but we will never know how large the effect of this delay was on his development.
2020 – Preparing for Tribunal
This meant that by the time of the following annual review we were preparing ourselves for the likelihood that we were going to require a legal intervention and tribunal to get the placement our son needed. In previous years we had not paid that much attention to the earlier EHCP sections, leading through sections E & F (defining outcomes needed and how they would be supported) of the EHCP as we had been content with the support being provided and the placement (section I) defined by it. Now, we realised that they were too vague and did not capture all our son’s needs. We ensured the attendance of the relevant LA experts (although some had not seen our son for years) and were able to gain an invite for (and the attendance of) a representative from school 1. We ensured that the overwhelming position of the group that a new placement was needed was captured and worked closely with our SENCO to ensure that the minutes of the meeting satisfactorily reflected the opinions of the experts present. The LA representative also attended and proceeded to challenge these points as they were being made.
I had an ongoing communication with the LA and SENCO over the weeks following that meeting to ensure the draft minutes contained as many of our points as the LA would accept. This led to an acceptance that a new placement would be needed and a better capturing of our son’s requirements. The LA did, however, decline to incorporate specific requirements requested for speech & language therapy, 1:1 support, Occupational therapy, and music therapy support that we were requesting to be included as well as declining to name school 1 in section I. The LA advised us that this would not be an appropriate use of (financial) resources as these were “wants” and not “needs”.
This led us to the decision to legally challenge this document.
We had reviewed our options for support in going through this process by this point. This had included asking for recommendations on support groups, amongst WSF contacts and reviewing the Independent Provider of Special Education Advice (IPSEA) website (ipsea.org.uk). We decided to appoint a solicitor specialising in EHCP challenges who would personally go through the pre-tribunal processes as well as attending court in person if needed. This is distinct from some lawyers who will handle the pre-tribunal negotiations but hand the case over to someone else in the event attendance in court is needed. We felt this was beneficial to ensure a complete understanding of our case (without extra hours being billed) as well as making it clear to the LA that we were serious about going as far as we needed to get the result needed. Although this lawyer was not local to us, and I am sure cheaper alternatives were available, we decided that they were the best choice for us. We certainly grew to be extremely grateful for their contacts and experience. We considered a few volunteer support groups that provide advice and support both for free and for charges (significantly lower than lawyers’ fees) but concluded that, as these organisations appeared to ultimately pass you to a lawyer, we would prefer to have the benefits of a specialist professional of our choosing the whole way through the process.
Before lodging a legal intention to go to tribunal, you are first required to attempt independent arbitration. The submission of the appeal is usually required to be within 2months of the date on the decision letter. It is worth discussing this with the mediating body (which will be named in the letter) as there can be mitigations to this. In our case mediation could be, superficially, described as formally notifying the relevant body of our intent to go to tribunal and willingness to go through arbitration prior to this, waiting the requisite period (without the LA engaging in the process), receiving certification from the mediator that we had tried and then proceeding. I believe that in our case this took a matter of a few weeks, but this will depend upon guidance from the mediator. I would recommend considering whether you are ready to submit to the tribunal yet and, if you are, whether there is any realistic benefit to delaying this longer than necessary. You can then approach the mediator with a clear vision of what timescales you are looking to achieve. Mediation clearly serves a valuable function in attempting to avoid the time and cost (to everyone) of unnecessary tribunals (in cases where the LA can be engaged) but in cases like ours, I would recommend initiating it as soon as possible, to avoid excessive delays in getting the EHCP improvements you are seeking.
At this point we provided our lawyer with all the previous documentation we had available, involved the fantastic Dr Jo Van Herwegen (via WSF) for an expert assessment of our son from the view of an academic specialising in Williams Syndrome and began locating the relevant paid experts needed to clarify our son’s requirements. Although the tribunal process allows you up to 3 expert witnesses, in our case we felt that three paid experts were needed (speech and language, Occupational therapy and educational psychologist) as expert witnesses. Although we did not plan to call Dr Jo in person (largely as our lawyer viewed her report to be indisputable while the other areas involved our disputing assessments made by LA provided experts -often years beforehand), her report was included in the pack and provided to our experts before their assessments. I am confident that this massively formed the basis for the strong case we were able to assemble.
There then followed a period of assessment by the experts to determine our son’s requirements. The clarity and precision with which this was done highlighted the gaps in our previous EHCP, with phrases like “access to” being replaced by descriptions more like “3x 30 minutes sessions a week with an expert trained to xxxx standard”. I have since seen other cases where the original language merely states “additional support at band x”. This is clearly not specific as it does not describe the types of support needed, the magnitude or manner of their delivery and leaves the LA able to re-define what the band means at any time of their choosing.
We had some challenges in incorporating opinions expressed (and captured in the minutes) by the existing experts during our annual review, as these were not included in their previously provided reports. While I expect that this would have been overcome at tribunal, it is worth being aware that this may occur. If you were able to get these professionals to amend their reports, then this may be beneficial and minimise gaps between their position and that of any additional experts you bring in.
Clearly, the needs of every child will be very different so our experiences may be less applicable to many people, but I would note;
- We had been discharged from occupational therapy shortly after our son had demonstrated gross motor skills and the ability to walk. Assessment at this time demonstrated a need for occupational therapy support to facilitate his sensory needs and therefore increase his ability to focus and learn across a range of other areas.
- Following the massive motivational effect music has on our son (hardly unusual in WS!), we had previously trialled a music therapist privately for a small number of sessions. Although expensive (hence we were not able to continue this on a private basis) this had demonstrated to us a massive learning potential of music therapy. In our experience, many schools do not understand music therapy (we found this a useful measure of how suitable they may be to educate him). It was often confused with music lessons or playing music to calm a child down where true music therapy (use of the definition “HCPC-registered music therapist” is useful here) can be hugely useful in teaching a child life and academic skills using music. We were repeatedly told that it could not be provided within the education system. However, this is now specified within our EHCP, with our new school bringing in an external therapist to support our son’s learning. I view it as potentially the biggest improvement in our provision.
- Significant provision of a 1:1 was a key part of our appeal, with Dr Jo giving extensive support to the idea that that this can be a requirement for children with WS, even within a special school environment. People had repeatedly tried to convince us that this was not necessary in a special school due to the altered environment and higher teaching ratios. We persisted despite this and now have 19 hours a week (which after accounting for the other provisions in place should be enough to keep him challenged).
- In our case, our reports led us to heavily consider and specify the way the different provisions would interact with each other and the school / TA. We are expecting a significant benefit from the TA (and us at home) being able to implement strategies at the best time for our son throughout the week as well as S&L / music / occupational therapists interacting with each other more than at the annual review. Clearly you do not want all their time being used amongst each other rather than with your child but do not be afraid to specify time periods spent with your child and additional funded time for report writing/interaction.
2021 – going to Court?
Once the experts had defined our son’s needs there then followed a period of “negotiation” with the LA between what they had specified and what the LA believed was reasonable. This was completed through a “working document” – essentially a draft EHCP with incremental changes being made as each point is agreed. Although the tribunal date was set months in advance, unfortunately our LA did not really engage with this process until the week prior to the court date (February 2021). This meant that our willingness to go to court (as well as our confidence that we had a strong case) to get what our son needed was well and truly tested. On the Friday before our court case (scheduled for early the following Monday), this engagement reached significantly higher levels than it had done in the earlier parts of the week. I am told this is a common defence technique. Fortunately, I was working flexibly from home that day (in hindsight, I would have taken annual leave if I had known how it would play out) so I was able to deal with the repeated proposals and not accept anything because I was unable to track its implications against the evidence we had that it was required.
This journey was long, complicated, stressful, and not without its financial cost (in our case lawyers and experts cost us approx. £10k, which is not refundable as “costs” upon winning) but it concluded with an agreement upon a working document at 6pm on the last working day before our court date. This meant that I did not need to attend a tribunal in person and the case itself became a token appearance (<5mins) of our lawyer before a judge with both sides presenting an agreed position. This resulted in us having an EHCP which we are extremely happy with, will benefit our sons’ provision for years to come and we are confident will support him to do the best he can. I believe he will live a happier and more fulfilling life than he would have without it. Although the journey was difficult at times, I can honestly say now that I am so pleased that we stuck with it. It was completely worth it.
A few summary pieces of advice:
- Do your research into the available local special school provisions. Even if you do not intend to use them, if you know what the options are out there then you can be comfortable that you have made an informed decision. In our experience, these schools were happy to give us a tour (Pre-Covid) and give us time to answer questions, even when we had previously said that we were unlikely to be looking for a place with them but were just expanding our research so that we knew our options. In some cases, this was the case even though the school quickly agreed they would not be a good placement for our son.
- Remember that you have the right to not accept a placement that you do not feel meets your child’s needs. If this gets difficult a tribunal is the ultimate body that decides the difference between “needs” and “wants” – not the LA.
- Keep records throughout the early stages of this process. If you do end up going to tribunal (or preparing a case to do so), the records of earlier communications (ideally emails) can be extremely useful in evidencing what has been happening.
- Keep your evidence organised and be clear on your requirements (and the justification for them). If the negotiations get intense in the final days, you do not want to be pressured into missing something because you were unable to marshal the relevant facts quick enough. Consider your availability to give the matter your full attention in the last few days before the tribunal date, especially if the LA have not been very engaged up until that point.