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Fighting to get help for your child School Action, School Action Plus and the Statement of SEN |
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Dyslexia - and its often-allied condition of dysgraphia - is different from most other varieties of SEN (special educational need) in that it cannot usually be predicted before the child goes to school and even when the child is at school, there are what are professionally known as “false positives” - most children have signs of dyslexia in Years 1 and 2 - and “false negatives”, where children do reasonably well in Years 1 and 2 - the sight vocabulary years - but begin to go under as phonics is introduced. In the education system, the mark of a dyslexic is the failure to learn to read, spell and write despite the most systematic application of phonic teaching, especially the government’s latest panacea, synthetic phonics. The crucial question is always - Is it severe enough to prevent the child from following the National Curriculum at a level appropriate to his or her age, and aptitude? |
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| From the Code, you should expect: | |||||
Try not to go for a psychologist’s assessment too early, unless your child is beginning to refuse school. 8 years old is best in order to obtain provision well before the move to secondary school. |
1. Early intervention – Whilst most parents will have voiced their concerns to school, the problem here is the chicken-and-egg situation. The school will not act until there is a diagnosis of dyslexia and most state schools have either a strict ration of psychologists’ time (some LEAs will not allow more than two referrals per year per school!) or have to buy it in. The only alternative is for parents to pay for assessment by an independent psychologist in order to trigger the intervention; this clearly disadvantages parents with least means. The British Psychological Society issues a list of Chartered Psychologists, which should be in your local library. Check carefully that the psychologist deals with children’s educational problems as some are clinical or other kinds of psychologists. | ||||
Ask for your child to be put on School Action as early a possible, even before a psychologist’s assessment. AND keep a dated record of all action taken, including books (such as Toe by Toe) and software used, and keep all reports and IEPs. |
2. A Graduated Response - Where the LEA has a delegated budget for all the various special needs, the school will be reluctant to allocate what the independent psychologist recommends as this would gobble up too much of the meagre allowance. The Code expects schools to respond in a gradual way, starting by putting the child first on School Action with a modest amount of provision by the school set out in an Individual Education Plan (IEP) and then if that is not producing progress after a reasonable time, moving to School Action Plus with the involvement of external agencies – which usually means the LEA’s SEN team of teachers and sometimes the LEA’s psychologist. This gives increased provision, again being set out in the IEP with a review at least twice a year. | ||||
Give it 12 terms on School Action and then ask for a report on progress. If there is not much progress on standardised tests, ask in writing for progression to SCHOOL ACTION PLUS - and again keep all records. |
3 A Good Record of Intervention – The school must keep accurate records in the form of IEPs and minutes of review and other meetings with parents. The IEP will set out targets, teaching strategies, the amount of provision needed, the date for review and – missing from many IEPs – the outcomes in detail. The Code demands that parents are involved and fully informed. | ||||
| The government expects that your child’s needs will usually be met in a mainstream school, that both child and parents will be part of the consultation process, and - very important - that a child’s entitlement to a broad, balanced and relevant education is met. | |||||
At entry to School Action Plus, if you haven’t done it already, get an independent assessment. You can have a top-up assessment after 6 months. Teacher assessments of progress are not as reliable as those of Psychologists, who use tests that are not available to teachers. |
It is the responsibility of the Governors to ensure that necessary provision is made for a child with SEN. If the school does not respond to your concerns in a satisfactory manner, you should complain to the governors, not to the head. Always put it in writing and keep a copy. | ||||
| Because you may have to follow through to the next stage (statutory assessment), it is very important for parents to keep a record of every meeting with teachers and with those from the LEA’s SEN service, with names and dates. It is preferable for all dialogue to be by letter with copies kept. Some parents tape-record every meeting surreptitiously -you don’t have to ask permission - to make sure that they later remember accurately what was said. | |||||
For Key Stage 1 and Key Stage 2 SATs, instruct the school not to use a reader, write the answers or otherwise help your child, otherwise the problem will be masked and you are likely to be refused a statutory assessment later simply because of this masking. |
Statutory Assessment. If you feel that your child’s needs are not being met under School Action Plus you or the school should write to the Director of Education and ask for a ‘statutory assessment’. If the school takes the action, then parents must be consulted beforehand. |
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| In the statutory assessment process, the LEA must not normally drag out the time between assessment and the issue of a statement to more than 26 weeks. Advice must be taken from the child, the parents, the school, medical advisors including speech and language therapists, occupational therapists, the LEA’s psychologist, Social Services (if involved) and any other relevant agency such as the independent psychologist if the parent wish their advice to be used. | |||||
Inform the school in advance and in writing that no one must see your child without your permission - and without your presence. |
Parents have a right to be told of any appointments made for their child to be seen by any of those who will give advice and they have a right to be present. The LEA must not send in assessors to see the child without the permission of the parents and without the opportunity for the parent to be present. | ||||
| The time scale is set out in the Code of Practice – 6 weeks to decide whether to assess or not, a further 10 weeks to gather reports and consider them, 2 weeks to decide whether or not to make a statement and a further 8 weeks to issue a rejection, a proposed statement or a note in lieu of a statement. | |||||
Check to see whether the list of DfES-approved specialist schools is a recent one. They can be two or three years out of date! |
With the proposed statement, the LEA must, by law, issue two lists of appropriate schools (known as Section 346 and Section 347 schools) for which the parent may state a preference. Although it must have been the intention of the legislators that parents could name an appropriate school from the list, to date parents can only state a preference, despite every school on the lists being approved and inspected by the government as value for money. |
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Go and look at one or two schools on the list, making sure that they are for your child’s problems - Dyslexia will be listed under Specific Learning Difficulties, which also includes Dysgraphia, Dyscalculia etc. |
If they issue a proposed statement, then a final statement must be issued within 8 weeks. If they refuse or issue a note in lieu, then parents have the right of appeal to SENDIST, the Special Educational Needs and Discrimination Tribunal. A Note in Lieu is a return to School Action Plus and should always be challenged. | ||||
| In addition to the list of appropriate DfES-approved specialist schools, the LEA must issue with the Proposed Statement these documents:- The LEA Psychologist’s report, the Educational Advice from the child’s school (a report from the LEA’s SEN service is not a legal substitute), advice from the parents and also the child’s views, advice from the LEA’s Medical Officer, advice from Social Services (if involved) and from any others such as Speech & Language or Occupational therapist, and that from the Independent Psychologist(s). | |||||
| You will need to check the Proposed Statement carefully to see whether the description of your child’s needs in Part 2 is accurate and complete. Have they missed out problems with handwriting or calculation, for example? In Part 3, they should set out in detail what should be done to combat your child’s difficulties. What is of crucial importance here is whether the LEA is proposing anything new and different or the same methods and provision that has no so far produced any results. Often all that will be different is an increase in the number of hours of support. | |||||
If you feel that your child is being treated unfairly, write a detailed complaint addressed to The Local Government Monitoring Officer at your local council - not to the LEA. Copy the letter to your MP, the DfES and anyone else who might intervene. |
It is very useful - some think it essential - to have some representation at this stage if not before. There are organisations which may help and you may consider going to a solicitor - This is expensive and many parents are not wealthy enough to afford good representation and thus the child may miss out on having the necessary provision. LEAs are always mindful of the costs of what you are asking them to provide and may in consequence not always be honest in their advice to parents or acting in the interests of the child. At the proposed statement stage, it is useful to try the council’s arbitration service, which is funded by the government. | ||||
| The Final Statement will name a school or type of school that the LEA thinks is appropriate, usually the same school that your child has already attended, but with an increase in the number of hours of support. If you are not confident that what the LEA is offering is appropriate for your child, then at this stage you can go to appeal to the SEN Tribunal and this has to be done within three weeks, unless you extend the period in writing by requesting further meeting with the LEA. | |||||
| SENDIST is the Special Educational Needs and Disability Tribunal and is located at: Special Educational Needs Tribunal, Mowden Hall, Staindrop Road, Darlington DL3 3BG or at Windsor House, 50 Victoria Street, London SW1H 0NW, telephone 020 7925 6925. You can telephone to see which address you should use for your appeal. If you appeal to SENDIST, then your case will be allocated to a lawyer, who will chair the tribunal meeting if there is to be one. The lawyer will be assisted by two lay members who are educationists, usually ex-LEA employees such as educational psychologists. SENDIST also hears disability discrimination appeals but they are not considered in this booklet - though you may have a case. | |||||
| Appealing to SENDIST: Link to SENDIST website www.sendist.gov.uk | |||||
1 An appeal against refusal
to undertake |
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You
have a right to see your child’s school file and also to have a copy of all the documents
in it. |
You will write in the first instance to SENDIST, setting out briefly what has happened and enclosing copies of relevant letters to and from the LEA. You need to do this promptly after receiving the refusal. Later you will supply a case statement accompanied by a bundle of documents to SENDIST, so you will need to begin to prepare this well in advance. In your case statement - with evidence in the bundle - you will try to show that your child has not made progress despite the intervention at school action plus by external agencies - This will be mainly by teachers from the LEA’s SEN team but also may include details of privately funded tuition such as that at the Dyslexia Institute. | ||||
| The tribunal will ask you what benefit you will expect for the child from a statutory assessment. Here are some of the benefits, which you will have incorporated into your case statement: | |||||
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| If you don’t succeed first time at tribunal, it will be because the tribunal believes the LEA rather than you. You should continue to collect evidence of lack of progress, and any evidence that the LEA might have - unintentionally or otherwise - misled the tribunal and have another go after a further six months or so when there has been another review of the IEP under school action plus. | |||||
Keep your case statement brief and to the point with very little past history. Keep your supportive documents to the minimum, choosing striking examples. Don’t put in anything that doesn’t support the points in the case statement. |
2 An appeal against refusal
to raise a statement, especially if a Note in Lieu is issued. |
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| This is basically the same as your original appeal against refusal to undertake a statutory assessment. You will need to add any further evidence such as lack of progress since the time of the statutory assessment. It is a return to School Action Plus and if it succeeds then you will have to go through the statutory assessment process all over again. Any representation you can make to the DfES or your MP about the iniquity of the Note in Lieu will be useful in the long run in getting this useless procedure abandoned but it won’t help your case now. | |||||
| 3 An appeal against a Final Statement. | |||||
| An appeal against the Final Statement can be against any part of the statement. | |||||
In part 2, you may choose to argue that the LEA has missed out on some of the child’s difficulties. You will need to provide evidence, preferably from experts, in the form of reports. For example, many - but not all - dyslexic children will have some form of dysgraphia - eye-hand coordination difficulty in tasks like writing. Dysgraphia is totally different from Dyslexia and requires different provision - which then would have to be detailed in Part 3 of the Statement. The Dysgraphia may impinge on work in Art and Design & Technology, so requiring more detail in Part 3. Another example - A diagnosis of Dyspraxia would require noting in Part 2, again with provision for its implications in PE and other practical subjects. (These are the kinds of reasons that would help in getting a Statement instead of a Note in Lieu - above.) |
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| In Part 3, you will expect a thorough reappraisal not only of the quantity of specialist teaching for your child but something fresh and more effective in the quality of teaching. Most LEAs merely lay down the same provision that the child had at School Action Plus, but increasing the amount. There should be evidence of some attempt to find out which teaching methods - or more appropriately still, which learning strategies - are likely to benefit your child. Whilst this may have been attempted by the LEA’s SEN teachers in the form of trying something and then something else if that doesn’t work, you should expect something more scientific from the report of the psychologist(s) where an analysis of the existing provision should have been undertaken and criterion-referenced assessment undertaken to determine fresh learning strategies with some probability of success. From all this, you should expect a critical appraisal of the model of intervention - You may argue that not only has the withdrawal model previously applied at School Action, School Action Plus (and in cases where the child already has a Statement which is not working, at Statement level) and after, but that the child is entitled to the National Curriculum at a level commensurate with the child’s aptitude and ability, with specialist tuition in addition (in the same way as you might have provided through sessions at the Dyslexia Institute) and appropriate liaison with all subject teachers to produce differentiated texts and other materials. For a Dyslexic, you should not lose sight of the fact that the child has to be judged capable of the normal curriculum and of obtaining accreditation at GCSE if - and only if - appropriate provision is made. | |||||
| In Part 4, you may choose to assert your preference for a school other than that stated by the LEA. Whilst it may be one of the schools from the lists of DfES-approved schools you were given with your proposed statement, it can be another LEA mainstream school, an LEA special school or even - though it not likely to succeed - a mainstream independent school. If you state a preference for a non-LEA, non-DfES-approved school then you will need to get the consent of the Secretary of State for Education if you are asking the Tribunal to direct the LEA to send (and pay for) a child with a statement to such a school. | |||||
In a Tribunal, make notes of what the LEA claims, if possible word for word, so that you can check on it afterwards.
Go to the school named in Part 4 to discuss whether they can meet your child’s needs and make the provision that is in the statement, making a careful record of your answer.
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Most parents will be asking the Tribunal for a placement at a DfES-approved specialist school. The Tribunal will direct the LEA to do so if the school has offered a place AND you have convinced the Tribunal that what the LEA is proposing is inappropriate for your child. This will usually be argued on the basis of the failure of what has previously been given by the LEA. In the Tribunal, you will not know whether or not your argument has been successful, but the Tribunal will go on to discuss costs, with the LEA arguing that it is not “efficient use of resources” to place otherwise than they say. Probably because the two lay members are usually ex-LEA employees - though never of the LEA in question - this will be reduced to a comparison of costs, where the LEA will almost invariably quote lower costs than would obtain for your preference. LEAs will also argue that their provision, especially if partly in a centre, is there anyway and that its cost would not be calculated. Tribunal vary greatly in accepting or not accepting this kind of argument and there must eventually be some resolution of the problem because it is just not fair for LEAs to quote insignificant costings for what has to be the most expensive level of provision, that laid down in a statement. | ||||
Check on the most recent value-added
figure for the school named by the LEA, from the internet. Check on how
many pupils with statements there were in the most recent internet report
and ask for value added details of them. For Value-added, the amount
below 1000 is the extent of value lost between KS2 and leaving. |
From all this, it is clearly going to be of great benefit for a child to be represented at Tribunal by someone with a good grasp of the law and of the ways in which LEAs present their cases - and a great handicap otherwise. Legal Aid is not available for such representation. | ||||
| The Tribunal will not give their decision on the day, unless the LEA capitulates: The decision will follow up to three weeks later and cannot be challenged except on a matter of law - another reason for having legal representation. If you can prove that the LEA misled the tribunal in some way, then that could be such a point of law. You can take legal advice on such a matter and it might be that your child could be given legal aid to fight a case to make the point. | |||||
| If at first you don’t succeed, try again! If you don’t succeed in getting from the Tribunal what you believe your child needs, being left with what the LEA has stated in the Statement, then you have a choice, pay privately or try the LEA’s provision for a reasonable period, not usually less than six months, then have a top-up test of literacy (and numeracy, if that is a problem) with a view to going back to Tribunal if no adequate progress has been made. However, all through this, your child is getting older ; it is therefore better to start this process in the primary school, well before transfer to secondary school, because specialist schools will rarely take older children simply because they would not fit into their existing classes of those of the same age who have joined much earlier. | |||||
If all else fails, then follow the Final Tip! |
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Final Tip Keep all papers and reports,
including records of meetings and telephone conversations. You never
know when they will be needed. Many parents do not succeed in obtaining
appropriate provision for their children because the LEA persuades them
to accept provision that subsequently doesn’t work. You may have
evidence (1) of delay in getting appropriate provision through the ‘wrong’ advice
or persuasion of the LEA, or worse still (2) of not getting appropriate
provision at all, leading to failure to obtain GCSE accreditation, further
education etc., then your child may possibly obtain legal aid in his
or her own right to sue for compensation for poor career outcomes and/or
for individual specialist tuition. If you have kept the papers, and especially
if they include written requests from parents and recommendations from
others for specialist provision - such as that at DfES-approved specialist
school - and this has been refused by the LEA, then you can obtain a
free consultation from a solicitor who specialises in educational matters.
The solicitor will say if legal can be provided to fight the case. The
solicitor will then serve a pre-action notice on the LEA to obtain any
documents that are on file, ask for advice from a suitable barrister
and obtain a report from an expert witness such as a psychologist specialising
in forensic work. © 2006 |
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