July 2011

"I LOVE IT WHEN A PLAN COMES TOGETHER!"

Hi

I love it when a plan comes together, don’t you?  I also like happy endings. This is a different 'anniversary’ update from my normal ones as it just tells a couple of stories about cases that I have been involved in recently rather than trying to bombard you with a lot of factual information. 

As I get older (and hopefully wiser) I have come to realise that we have all become overly anxious about missing out on information and think we have to be always 'connected'. For example, we are constantly (and obsessively) checking our emails (Twitter/Facebook updates, RSS feeds etc.) or even trying to keep up with news on the TV or radio that is not really relevant to us (like things happening on the other side of the world which we cannot do anything about).

I have slowly come to appreciate that it is sometimes much better to just ‘be’ and reflect on things in the present and concentrate on doing the things that we can do to rather than worrying about things that are outside of our control and that we cannot do anything about. As one professional colleague (who also helps parents) told me some time ago, we need to also remember our own families and make sure that we build time into our busy schedules for them (she told me that we should sometimes put a sticker on our phones saying ‘your child or mine’!)

So what is this good news I hear you ask? 

‘C’
You may remember that on 8 March 2011 I wrote an update entitled 'Another Important Judgment For Children With SEN'. In it I informed you of our success in an important special educational needs (SEN) case in the Upper Tribunal for parents of a child with very complex needs including physical limitations, learning difficulties, health needs and social care needs,  called ‘C’. I have been taken by the fact that I received so many personal emails from people to my earlier update where I told the first part of ‘C’s story, wanting to know what happened. 

Just to remind you, ‘C’’s parents had lost an appeal to the First Tier (Special Educational Needs & Disability [SEND]) Tribunal in September 2010 for her to attend an independent residential special school. This was on the basis that the local authority (LA) had successfully argued that she could have her needs met satisfactorily (and more cheaply) by attending a local maintained generic day special school supplemented by a very large package of respite/social care.  The parents lost their appeal based on a comparative costs argument as the LA had persuaded the Tribunal that placing ’C’ at the parentally preferred school would amount to ‘unreasonable public expenditure’ and that any need for a residential placement was a ‘care’ not an ‘educational’ need. 

Thankfully, the Upper Tribunal on appeal quashed the original decision (at the end of February 2011) by pointing out that the First Tier Tribunal had failed to consider the ‘wider benefits’ of a placement in a residential school when considering whether additional public expenditure would be unreasonable.  The Upper Tribunal also pointed out that the LA/Tribunal should look at the ‘total picture’ and take account of the wider social and health benefits for ‘C’. The original appeal was remitted to the First Tier Tribunal for rehearing (before a differently constituted Tribunal panel) at the end of May 2011. 

Well, after the Upper Tribunal decision, the LA ‘reassessed’ ‘C’ and then said that any need for her to receive a residential placement was, in fact, due to the fact that her parents could not cope with her at home. The LA then said that they would therefore first look at a fostering arrangement (whereby she would live with another family for 52 weeks of the year) so that she could continue to attend their local day special school, which she had now been attending since October 2010!  Only if that failed would they look at placing her in a residential school which her parents were requesting (where she would only 'board' for four nights a week for 38 weeks a year anyway - effectively, spending about 60% of her time at home and 40% at school).

The cost of providing this additional care was said by the LA to be at least £52,000 (let alone the additional cost of respite and training for the foster family, we argued). In fact, an appropriate foster family had not even been sought or found.  The parents, understandably, were extremely concerned about this proposal as it had come out of the blue. They were additionally upset due to the fact that they felt that they had been ‘fighting’ with the LA (both Education and Social Services) for more support for many years but had been ignored. They were also very distressed that their parenting skills were now being questioned even though they had provided almost constant supervision to ‘C’  - sometimes day and night  - ever since she was born. They stressed that fostering was not a reasonable proposal given that they had only been seeking a residential placement for ‘C’s’ ‘educational’ needs to be met.

The overwhelming evidence seemed to show that ‘C’’s main need was in the area of communication and that because of a lack of her being able to communicate properly (although she also had a visual impairment which needed to be addressed) any behavioural difficulties that she was exhibiting (mainly in the home) were as a result of her being unable to communicate properly. Many parents of children with SEN (as well as professionals and parents of children without SEN) will tell you that children can ‘hold it in’ during the school day but ‘let it out’ when they get home.

Thankfully, the LA came to their senses by the start of the rehearing and said that they would not try and take ‘C’ into care as they realised that they would not reach the relevant legal threshold anyway.  However, they still argued as forcefully as possible that the local day special school was still meeting her needs and she did not need a residential curriculum.  The LA seemed to have a lack of factual evidence about this at the hearing and a number of independent experts instructed by her parents had assessed C again in the LA’s school before the rehearing and were very critical of its lack of provision for C’s communication and visual needs. The rehearing (like the original hearing) went on for two days.

I am delighted to report that the parents received the decision a few weeks ago and have finally been successful in getting their preferred school named where ‘C’ is due to be starting this September 2011 (as we are already past the summer half term and her parents do not believe that it would be appropriate to move her so late in the summer term).  I should mention the fact that after the Upper Tribunal had allowed the parental appeal and quashed the original decision, the LA tried to prevent the rehearing by trying to appeal to the Court of Appeal, arguing that the case raised a point of public interest. Fortunately for the parents the LA were over two weeks out of time for doing this and were refused.  The merits of an appeal were also questioned. But you can imagine the worry that the ‘C’'s parents had and how expensive the proceedings were for them.

‘C’'s parents have kindly agreed to let me publish the anonymised Tribunal decision on our website in case you wish to read it (K v Hillingdon LA [June 2011]). The full Upper Tribunal decision can be read here and my summary of the case in my earlier update here. They have also written something for the ‘Our Story’ section of our website which you can read here.

I want to publicly express my admiration for ‘C’s’ parents for the fact that they stuck out the appeal process for so long at such personal, emotional and financial risk to themselves and their family.  It can teach us all a lesson that, if we instinctively feel that something is right (or, more accurately, that something is wrong) we should pursue it right through to the end, holding steady and not losing our nerve, no matter what happens.  I would also like to publicly express my thanks to the many independent experts and professionals who assisted the family throughout this long rollercoaster of a battle.

‘T’
Remember I said that there were two stories I wanted to tell you…

We were also successful for another child ‘T’ in a First Tier Tribunal Appeal (which was heard on one day at the end of January and then for another day at the beginning of May). We helped her parents secure her placement at a 48 week residential placement in another independent special school which could assist with her communication and behavioural needs. 

In essence, T has Angelman’s Syndrome (AS), a rare chromosomal disorder that affects her nervous system and manifests itself as global developmental delay associated with learning, speech & language, fine and gross motor skills and behavioural difficulties.  T was already 17 years at the time of the first hearing and the parents had appealed to the Tribunal in relation to her post-16 placement when she entered Year 12 in September 2010.  But the LA did not amend T’s statement until July 2010 and her parents were unable to lodge an appeal with the Tribunal until September 2010. 

The Tribunal registered the appeal and listed it for hearing in February 2011 but, following an application to the Tribunal, the hearing was brought forward to be heard over two days in the middle of December 2010 with the hope that there could be resolution of where she should go from January 2011.  Unfortunately, only in the afternoon the day before the two day hearing, without warning, the LA made an application without warning for the hearing to be postponed (on the basis that their representative and one of their witnesses were unwell). The Tribunal reluctantly agreed to the request and subsequently listed the hearing for one day at the end of January 2011.  

At the hearing in January 2011 the parents presented independent expert evidence that T’s needs were so severe that now only an intensive residential placement could assist her with improving her communication and behaviours.  ‘T’ had already been at the LA school for five years during her secondary provision and an independent speech & language therapist pointed out that she had actually, arguably, regressed in her communication abilities whilst there.  The LA (as ever) argued that the local (again generic) day special school could meet T’s needs together with a package of respite support for her family. 

I am delighted to say that the parents were successful in persuading the First Tier Tribunal that ‘T’ should be given a 48 week placement in a special school. But unfortunately, as there was now only a one day hearing, there was insufficient time to talk about the actual school that they wanted. Since, on the day of the hearing, the LA (again without warning) said that were objecting to the suitability of the parentally preferred school being put forward (although they later withdrew that objection) the Tribunal then had to list a further one-day hearing in May 2011 to look at schools. 

By the time of the further hearing, even though the LA now said that they raised no objection to the school being able to meet T’s needs, they said that they could find another residential (independent) special school which would be significantly cheaper. The LA said this would mean that the costs of the parentally preferred school would be ‘unreasonable public expenditure’. It appeared later that the LA was trying to argue that the 48 weeks that the Tribunal had ordered should be interpreted on a weekly basis (i.e. T would go to school on the Monday morning and stay for four nights before returning to her family on the Friday for the weekend and returning on the Monday morning).  

The parentally preferred school cost a sizeable £162,000 a year.  Given the severity of T’s need and the fact that she only had just over a couple of years left in formal education (statements currently cease when the child is 19 years old), ‘T’’s parents argued successfully that the reason the Tribunal had (exceptionally) ordered a 48 week placement (as opposed to the normal 38 week placement) was because they recognised that T had very little time left in education and needed to make the most of everything in the limited time available.  During the hearing the LA then admitted that their own independent special provision would cost £161,000 per year on this basis and gave in. It was a bit of an anticlimax for the parents and everyone supporting them.

I am pleased to say that T has already started at her new school and I understand that she is already making good progress and settling in well.  Again, my admiration goes out to T’s parents for sticking out the Tribunal appeal process just as ‘C’'s parents did.  Just as with ‘C’'s parents the whole appeal process was very emotionally and financially draining to ‘T’’s parents. 

Once more, T’s parents have kindly allowed me to publish an anonymised version of their Tribunal decisions on our website which you can read here (M v Herts LA (1) and M v Herts LA (2)). They have also written something for the ‘Our Story’ section of our website which you can read here.

AND NOW THE FUNNY BIT AT THE END …
I know that some people say they like reading my updates because of the ‘funny bit at the end’.  I hope though that saying something light hearted will not detract from the importance of ‘C’’s and ‘T’’s story. 

So here’s a quick ‘educational’ joke which still makes me laugh.   Apologies if you have heard it before (especially if you have heard it from me).

‘What did the inflatable teacher say to the inflatable pupil at the inflatable school after she caught him with a pin? 

Not only have you let me down, you’ve let the school down and, worst of all, you have let yourself down!’

I hope you’ve enjoyed this (slightly different) update.

With best wishes.

Douglas

P. S. If you wish to read other examples of our Tribunal decisions you can do so here.

P.P.S. I find it extremely helpful to learn what people think about these updates. Please take a minute to tell me what you think by clicking on 'July 2011 Update - "Your Thoughts"'. Many thanks in advance.