TLDR – Summary
- Remember : Money/Funding is usually the root of the issues
- Know the law, or where to find it
- Know when you are right and always use evidence to support your claims
- Say/communicate less not more
- Get legal advice (paid or free) early on
- Hold professionals to account, not the LA caseworker
- Don’t wait to complain
Introduction
We do so many things that in retrospect we could have done better or in a different way. It’s difficult to pick the best way forward when you are making the journey for the first time. Each person is different. What works for one may not work for others. I have been listening to parents who’ve been through this journey and trying to see if there is a pattern of success. Here is my general guide to dealing with your local authority’s SEND/EHCP department. Pick and mix. These are more my reflections, these are not legal guidance.
What are you asking?
It may become clear very early on in the process that what your child requires in the EHCP is something the local authority is fairly accustomed to deliver. These can normally be additional support in school, or therapies in and out of school that are backed by professional reports. Interventions that are already well established like NHS SLT, OT, or STARS support. The less it costs to delivery the easier it is to get. On the other hand there may also be things that your child needs are what is left field, for example EOTAS, independent SEN school, ABA, or extensive SALT, OT, SI or other therapies, which is well known fact are difficult to get for your child without a lengthy fight or a tribunal appeal.
Ideally, knowing early on how adversarial the LA is going to be is really useful in planning a course of action. Like a chess game, you have to plan in advance what course of action you have to employ, for example, if your budget will stretch to pay for a representative, or for independent reports. If not, what will be your plan of action. What written evidence can you achieve to force the LA’s hand in obtaining your child’s rightful accommodations. I don’t want to scare the parents, I want to highlight that in most cases your EHCP may sail through. But if you expect a bumpy road ahead, better to be prepared than caught out.
It’s mostly all about funding
Without going into too much detail to bore you, basically the local authorities are under funded. Some have even gone bankrupt. They will try and create barriers for getting the most expensive provisions. It is worth it to remember what this is all about. It’s about money and funding. Once you know that fact, once you know they are not doing this out of spite, that, underlying all this is money, money the councils don’t have much off, not only it starts to make sense, it also gives clarity of direction in the way you communicate with your local authority representatives.
One thing to remember as well as that money/funding is not your problem. I know some parents who have been “shamed” into accepting less that what is rightful for their child with the LA pleading that they don’t have enough funding this year. Funding is not your problem. That is a problem between school, the LA and the government. How they sort it and manage it must never impact you.
Knowing the law
While it is not absolutely important, it is good to know some of the major clauses of law and at what stages it applies. And while it may be daunting at first, it can actually be really helpful in some situations. In my view, I was given wrong advice when I had just started on the EHCP journey for my child. I was told to go read the SEND Code of Practice. While it’s a great document, I wouldn’t advise it to be your first point of call. I also have to accept that I haven’t read the full thing yet. Mainly because there are some important sections of it that I can look up when I need to.
I’d advise that you start by watching some really good YouTube content. One that comes to mind is the Sen Legal webinar called “all about EHCPs”. It’s a hard watch, again, it refers to law a lot. But I find it is still a soft start.
My second port of call is always IPSEA website. Again, I’ll raise my hand and accept that I have yet to see IPSEA website homepage. All I do is look up the topic in google and add IPSEA at the end. Google normally takes me directly to the content on IPSEA webpage.
Position of power
You have to come from a position of power. This is something I learnt from the TV show “SUITS” that is about a law firm that has the best lawyers and how they navigate their day to day cases. They use the term “coming from position of power” a lot, and that is to signify that in that particular situation, you have the right evidence and are doing the thing as per law, and thus the law is on your side. You are thus coming from a position of power. It is quite interesting to see, how arrogant the lawyers in the show become when they are actually right 🙂
But I think the clue is in the name. When you know you are in the right, then you need to act that way. Parents and guardians of SEND children/young people, are asking for what is legally their right. They normally have strong evidence to support their case. In such scenarios, talking to the LA, you need to know you are in the right. That you are not at mercy of their discretion. The tone of your communication thus does not need to be apologetic. It needs to come from a position of power, where you are demanding what your child requires, by law and is their right by law.
To be in position of power, you need two things. One, need to know the applicable law, second need to have strong backing evidence. The further up the fighting ladder you go, the more important evidence becomes. Professional evidence, be it coming from the LA professionals or your independent professionals, is given a lot of weightage. Haveing such evidence in hand is having power.
I see some parents say we were granted an EHCP. The LA is not granting you anything. It is your right to have that EHCP and they are just doing their duty. The LA are public servants, not the masters and must never be treated as such. They should be treated with respect but they are neither above you or below you. They are just citizens doing their jobs.
This also brings me on another aspect of being in position of power. I’d suggest never show your weak side. Do not tell them about your troubles, be they about financial issues, mental health, physical health, family issues, job issues, whatever. They don’t need to know and you don’t need to tell. By telling them so and so and that you are struggling, only weakens your positions, and in some cases has even resulted in that information being used against parents. Keep all personal issues on a need to know bases, and most of the time the LA don’t need to know.
Say the least possible
Parents generally say too much. The message I am trying to convey is to say only what is needed and nothing more. Very long emails that go into history of failings , and how you feel hurt and have struggled and how much your child has lost in education etc, over and over again, do not help your cause. My advice is to say the minimum and keep it short and focused. If you feel LA have said something unlawful. Just a single line of “please explain what legal basis you have to come to XYZ decision” is more than enough. I see parents writing paragraphs and paragraphs of detail which in most cases is quite unnecessary and I have also been the same in the past but I am now trying to change, because it hasn’t helped at all.
I like bullet point/ number list short sentences. These are easy to read, easy to refer to and easy to answer.
You have the right to remain silent. Anything you say will and can be used against you in a court of law.
Joking aside, please be mindful that anything you write in an email, say in a phone call, or share in a meeting, may be produced as evidence if you ever have to go to tribunal. I suggest it is important to be careful of what you say. Again, the less you say the more mysterious you are. If what little you say is punchy, refers to the law etc, and points to hard evidence then that adds significantly more weightage to your arguments. It shows you as a person that knows their stuff and shouldn’t be messed around with. The LA may become a bit more careful in dealing with you.
On the flip side, when interacting with LA, make recordings of phone calls to assist in making meeting minutes, make meeting minutes and share with the participants, and keep record of all emails. This is all paper trail evidence.
Finding the least path of resistance
I have seen parents asking for advice on forums about EHCP, normally because they feel they have been dealt with unfairly or unlawfully, and the advice normally given is to “go to Tribunal”.
Having gone to tribunal, I do not say this lightly, that tribunal is not for everyone. Secondly, the the Judges and Panel members are humans and have their own opinions, and in some cases can be deemed to be sympathetic towards LA. We live in a real world and things in the real world cannot be controlled and change without notice. The tribunal system as of today (October 2022) is taking nearly a year for getting to the first hearing. The local authorities are known to use this to their advantage, to delay the provision you child needs now and thus not having to pay for it for at least a year or more considering the delay in finalising the plan, delaying tactics during mediation, delay in tribunal hearing itself and then delays due to adjournments, and then finally delays in finalising the plan again and delaying the provision that has been won via tribunal.
My advice to parents is to get legal advice early on if you can afford it. Also get in touch with your local SEND IASS service or IPSEA much early in the process. As parents we know our child the best, and others in the system know this too. But the common mistake is that regardless of what the Code of Practice says (and I’ll come to that later), parents voice/child’s wishes are not taken seriously by local authority. Not only that, but the evidence of professionals paid by the parents is also disregarded (unless it is being seen by a judge). So first step is to identify what your child needs , for example , extensive Speech and Language therapy , or small class sizes etc, and then to make sure that you have evidence to support that claim and to keep your focus on that. There are many distraction on the way, but if you, from the start know what your child needs and try and keep your focus on that then hopefully you can reduce the risk of it having to reach to a point where you’ll be forced to go to tribunal. It may be that the best will in the world and you still end up going to the tribunal, and that is absolutely fine. My point being try technique available before needing to go to tribunal. One thing I find interesting is that the tribunal is only held if both sides have an argument. If you have significantly stronger evidence than LA, or if the LA professionals are actually supporting your cause, the LA can be forced to concede before the tribunal, and if you end up in tribunal, a wasted cost order can be made against them. Thus again, I don’t say it lightly, that evidence is key, and the more evidence you have the better chance of success.
Who’s job is on the line
If you read some horror stories on parent support forums, or talk to parents in you local SEND groups, you’ll probably think how are these people in the LA still in their jobs? The reality is that no one in local authority is going to loose their job over potentially saving money for the LA. At least I have yet to hear anyone loosing their job in the LA for producing a bad EHC Plan, or dealing with parents unfairly or unlawfully. The most that happens is that LA may be told off for dong such things as a result of LGSO complaint.
There are some people who’s job is at risk but they don’t get challenged enough, in my humble opinion. These are the professionals who work for the LA namely the EP and the SaLT and OT etc. These people can “potentially” be struck off their professional registers and loose their jobs for working unprofessionally. Without being challenged they get away with it. In our case, the EP report was misleading, omitted facts and misrepresented some facts. The EP was behind a veil. We didn’t see EP report until the next steps meeting, but that time it was too late. At that time I didn’t know enough to challenge them. I have since reported EPs from our local authority to HCPC. Not sure what will come of it but at least I have done my bit.
Your child’s EHCP in most cases is based heavily on the input of an EP. If the EP has not provided the right wording, not referred to or properly understood the provided evidence or misrepresented what they were told, this can have massive impact on the EHCP document created.
My advice is to make sure to tell EP they are not allowed to submit their report to the SEND EHCP department until you’ve had a chance to review it. You may also use the threat to report them to HCPC if they act in an unprofessional way. I have written about it previously here.
Complain away
When you know you know the law and you know your rights, you have then also the right to complain. Be ready to complain, and at no point think that complaining will mark you as a bad parent, or that the local authority will deal with you any differently. It is also reasonable and supported by experts to give the LA a chance to fix the issue before complaining. For example, it is expected to give them say 7 days notice that if the issue is not resolved then you’ll start the formal complaint or legal proceedings like JR etc. This, in most circumstances, should be enough.
When all else fails
In very rare cases, parents have been pushed to a point where the LA has bluntly broken the law. In such cases parents have resulted to involving their MP, taking legal action like Judicial Review, or complain to the LGSO.
I hope that you’ll be able to avoid these, but when all else fails, you need to know that there are options out there.