Peeps in a Pod(cast) - All things HIE
Episode 7: EHCPs - Appeals & Annual Review
Hello, and welcome to this episode of peeps in a podcast. My name's Andrea, I'm a peeps volunteer and a mum to Noah who had HIE at birth 12 years ago. This is the second of two podcasts and we've put together from a great conversation I had with Hannah Adams who is an SEN solicitor, and also a great friend of mine. And who helped me with my son's EHCP appeals in the first episode on the EHCPs, we talked about the basics. What EHCP were what the process is for getting an EHCP who could get one who can apply And we talked about a 20 week process that ideally is the process for going from start to finish and getting the EHCP that you need. Now I certainly know, and I'm sure many of you listening will be going through a much more complicated process than that to try and get your EHCP. And today we're going to talk about two major things. That. Are what we have to do when it doesn't go our way. So the first one being right of appeal and the second being the annual review process and how to manage that as well. So we know from our previous podcast, that there is a number of different times where you can use your rights of appeal. The first being, if their local authority refuse to assess your child. The second being, if they assess your child and they decide not to issue an EHCP. And the third being, they have issued an EHCP but it doesn't include all of the provision that you believe your child needs and is entitled to, in order to access their education. So let's find out what Hannah had to say. Firstly, about the rights of appeal.
Hannah:There are a couple of really important points to make about your right of appeal and I guess the first point that I really want to drum in is that it is a time limited right of appeal. So the local authority must inform you of your right of appeal when they're making that decision so there shouldn't be any confusion as to whether do I have a right of appeal at this point because what the law says is that when the local authority are making these big decisions they must write formally and they must inform the parents. of the decision, but also inform them of their right of appeal. So that is what we call the right of appeal letter. And that's really important because your right of appeal will last for two months from the date of that letter, the date you receive that letter. Unless you extend that right of appeal, and you are able to do that in certain circumstances. So in order to file an appeal to the Special Educational Needs Tribunal, unless it is an appeal about refusal to assessthe other two types of appeal, you must obtain a mediation certificate before you lodge the documents. When I say lodge, I mean send them into the tribunal. So you are given the details of a local mediation agency, and you contact them, and you can opt for a mediation appointment with your local authority. And if that's what you want to do and have those discussions to see if you can resolve any difficulties the agency will write to the local authority to set up that appointment and the local authority can take up to 30 days to respond to that. Now they're supposed to always agree to mediate, that doesn't always happen and sometimes you end up just wasting. Time waiting for them to come back.
Andrea:That's exactly what happened to us, isn't it? Right. We waited the 30 days. Then they, they never responded.
Hannah:Right. And so there you are panicking that your right of appeal then is going to expire. But don't worry, because at that point, whether you've had your mediation appointment or not, if you've opted for mediation, you will get a mediation certificate, and your right of appeal will be extended for one month from the date of the mediation certificate. So just say you spent five weeks, thinking about what to do. Then you decide to mediate, you make your request, and the local authority take 30 days. And then they don't respond. You've gone over your two months, so you're already panicking. That's it. We've lost our right of appeal. You won't have done because you'll get a mediation certificate, which will then extend it. And you must then file your appeal within that month. So by doing that, your right of appeal can be extended. But of course you may get, get your right of appeal and immediately know I don't want to mediate. What do you do? You ring the mediation agency. There's no obligation on parents to mediate with the local authority. There is no inferences taken by the tribunal. Whether you did or didn't opt for mediation, that's not part of their consideration at all. So you shouldn't feel like I have to mediate, otherwise I'm going to be judged badly. If your experiences with that local authority have been very difficult and you think, I can't, I just can't see us getting anything out of this process, or if you are really pushed for time in terms of, you've got a child who's desperately struggling, then get your mediation certificate, it will be dated, and that isn't going to extend your right of appeal because if you do that within your two month window, it's going to run concurrently that month. So then you're going to just need to file your appeal with the tribunal, with the mediation certificate. And, you know, a lot of times I have families who have mediated. Sometimes I have them where they think they've reached an agreement, and there is a mediation agreement in place for the local authority to do certain things. But it's really important to remember that that agreement isn't statutorily enforceable. So you If they don't do the things that they've agreed to do, it's neither here nor there. And if you wait longer than the month after you've had that mediation appointment for them to do those things and they haven't done them, your right of appeal will then have expired. So there are pitfalls around that process.
Andrea:Essentially what you're saying is you could go to mediation, they could agree things, but they could then change their minds after your right of appeal has run out and it's then too late to do anything about it.
Hannah:So, so, and I don't want to come across as if I'm not recommending trying to speak to your local authority because that's a duty on parents as well as local authorities to try and work together to resolve issues. So often I see that it's the parent that's desperate to talk to their local authority, to talk to their caseworker, have those discussions, and they're coming up against a brick wall. And so, but what I would say to you is, the most important thing is to preserve your right of appeal. And that doesn't stop you from continuing. to try and have those conversations with the local authority. It's not an either or and so, but, you've got to make sure that you have preserve that right of appeal by utilizing it. And actually, if we stop to talk about the appeals process, there is a huge timescale and waiting time to get to Hearing once your appeal has been registered. And so, you know, during that time, you can continue to try and reach an agreement and have meetings. And if you're able to do that, brilliant. But just be very wary that any agreement reached has to be reflected in an amended EHCP and finalized for it to be effective. And you wouldn't withdraw your appeal until such time as you had that. agreement to issue a document with the wording that you were happy with,
Andrea:And in fact, we've gone through two different appeal processes for, for Noah, and in one it didn't go all the way. but at least by lodging the appeal, what that meant is that we hadn't lost our right of appeal. No, and you're
Hannah:keeping the pressure on the local authority because they know that there is an end, both parties know there's an end date, there will be a hearing date at which they've both got to attend to give evidence And so that for the local authority, that means that that case is not going away. So they do need to think about it at some point. Now, at what point in the process they engage and actually start thinking about it is variable hugely. But as a solicitor in this area, our key work is avoiding hearings. We issue appeals all the time. But The majority of those appeal proceedings don't go to a fully contested hearing because we work very hard in preparing the cases to such a standard that It becomes very clear that the evidence is there and, and that we've made a, you know, a good case and that helps in persuading the local authority to have sensible discussions and we will use something called a working document which sets out the wording that you want to see in the plan in a very specific way, and we use that document to go back and forth between the local authority and the parents to narrow the issues. And sometimes we are able to then reach an agreement on the wording for that plan. And, and matters conclude without the need for a hearing. And that's always our aim.
Andrea:That's so helpful, thank you. When you talk about evidence, can you just give a couple of examples of the type of evidence that parents might be looking to, yeah, to find in order to help support their cases?
Hannah:So um, as part of the statutory assessment of your child, the local authority will have had to have asked for opinions from various different professionals, an educational psychologist, and often, depending on the needs of the child, a speech and language therapist. If you think your child has sensory or physical needs, it may be that an occupational therapy assessment or physiotherapy assessment is required. That all forms evidence which goes as part of the EHCP. So section K of your plan is actually a list of appendices. And that's where all of those documents get appended to the plan. And that forms the evidential basis on which the decision has been made. And the important thing as you go through is that that document will be reviewed every year at an annual review. And there are statutory processes about that. We can talk about that in a moment. But. That will add to the evidence goes with your plan. And if you get to a point where therapists are saying, making recommendations that you don't agree with, or they're making recommendations which actually aren't included in the plan, specifically about perhaps one to one staffing or the level of, of speech and language therapy, say, for example if you agree with those and you've asked for the amendments and the local authority have refused to amend and include, you would be using those reports as evidence. Often though, the reports that families will have will be from the NHS therapy services Or the local authority educational psychologist. And unfortunately, those reports are often drafted in a way that is very open and very vague. And so that doesn't help the parents in understanding exactly what therapy is required. And often they are limited by the level of service that the NHS will provide, which doesn't accord with the needs of your child. And in those instances You know, we, it's very difficult, but we encourage parents to look elsewhere to find the evidence about what the needs of the child are and the provision that's required to meet those needs. And that may look like paying for independent expert um, assessments of your child to get um, a different opinion, a second opinion, if you like, about what it is that those child's needs require in terms of provision, and you would then use that as your evidence in your appeal. You know, if you're unable to to finance those independent experts, go back to the NHS therapist that you're working with and ask them the questions that you want answered and ask them to produce an amended report. Because what they need to do is make very specific and quantified recommendations so that that can be transferred into your plan. Because that is what the local authority will use to draft any amendments to the plan. And it is, I'll be honest, it is really difficult because those therapists are, are becoming less and less on the ground. There are some areas where they will simply say we don't have an occupational therapist who can assess or your child doesn't meet the criteria for provision from the NHS therapists. And that really is that it is at the point where you need to be left thinking, right, okay what do we do about this? And Unfortunately, because the NHS are so restricted in terms of their kind of funding framework as to the level of service that they can recommend, they're not looking at it in terms of identifying the needs and the provision that's required to meet those. that those child's needs. And that's the point where you really need to be thinking, okay, how can I finance an independent expert assessment? Because that, that will give you a report from somebody who has no limitations in terms of, they're not looking at it in terms of the financial aspect. They are purely looking at assessing the child's needs, identifying what they are, and then making. specific and quantified recommendations as to what provision is needed to meet those needs. So, and it can be a bit of a minefield, really and that's You know, that's one of the great difficulties about the area and it's getting harder, it's getting harder to find independent experts within, you know, the timescales that you might need. And so I guess the overarching kind of advice about this whole process is really to think about it as soon as you can, as soon as you start to get those hunches and worries. Because I think for a lot of parents, they will spend a lot of time having that base instinct about what is going wrong for their child or that things aren't right, but they don't know what to do about it. And that's really common, but because the process is taking longer and longer to navigate you know, as soon as you start to have those worries and concerns, you seek out help at that stage. You know. Ask for referrals. You can go to your GP and ask and say, look, these are the difficulties. I don't, you know, we need some, some help.
Andrea:So it is actually all about evidence and so that idea that you talked about specified and quantified, you know, recommendations. I think those are, that's a term that is really good to use with your NHS and any other and school. Yeah. Yeah. And also just getting things documented by school. So when a teacher tells you something, trying to get things that they've said confirmed in an email, you told me this today, and like, get that confirmed in an email chain. Because when it comes to it becoming a legal process, schools will often be nervous to be completely open about some of the things that they may have told you otherwise so that the more that you can get documented in terms of any of the challenges that your child is having in school I think that's also can be really helpful.
Hannah:Yeah definitely and and and helpful in clarifying your thoughts you know. When you have those, end up having those really critical, important conversations at the school gates as you're handing your child over in the morning and you've got to get to work, it's just really not ideal. So, you know It's perfectly alright to email and say we had this chat and this is my, you know, this is my recollection of what you said, can you just confirm that that, that is, you know, your recollection also, because even if they never reply, it's a, it's a line in the sand that you, you know, that you have emailed at that point, and you're with your recollection of the conversation because so many things get talked about, but actually, you know, it's really important for you and for your child's other parent you know, to share that information with them. I know that I would always be the one who was having those conversations and then I would have to try and remember and repeat it back to my husband. You know, much better that it is written down and you're perfectly entitled to do that.
Andrea:One of the questions that came in from the peeps community actually was to say where, where can I go for help and support.
Hannah:I mean, you know, the majority of parents who navigate the SEND appeal process, the statistics from the tribunal are that they do so as litigants in person, they don't have legal representatives. So it's very much a process which is used to parents doing it for themselves. And, you know, even before we get to the tribunal process, looking at advice around statutory assessment, there are some brilliant charities out there. In particular, I would signpost to IPSEA, that's I P S E A. They're a charity that are purely dedicated to advice around special educational needs law, and they have a, helpline that parents can ring and speak to. I believe that they also have a limited representation service, so some parents can get representation funded by the charity. They also have a fantastic website which gives a lot of information in a really accessible way. Another thing that parents can do is to literally Google the Special Educational Needs and Disability Code of Practice 2015. It, it's a big document, and in the days when it used to be published as a book, it was a bit overwhelming. But actually, It's there for parents, for teachers, for local authorities, it's a statutory instrument which is telling everybody involved in that system how they ought to be applying the law. And that's really helpful for parents, it has a detailed index now, it's online, so you can go to the bit, you can ask the question that you need and go to the bit. Familiarise yourself with that, because that sets out the law in a really accessible way. And that's really important. And, you know, you can quote that when you are having communications and having difficulties, use that as your kind of go to really and, you know, Peeps has a legal panel on their website, which sets out firms who can offer advice in various different areas. And peeps are also intending to develop some online resources, information for the website in this area as well, because it's a really growing area of concern for parents. Peeps obviously supports in those very early days after an HIE event and that's absolutely critical, but that support also continues for those families you know, throughout the childhood and education and health and social care for a massive part of that.
Andrea:So, yeah. Fantastic. That's so helpful. And I know you do your own work where you go and offer free consultation calls through a charity. And I'm sure that that's probably the case for other legal firms as well. So it's probably worth Googling those kinds of things. What's the charity that you do that for?
Hannah:Reminds in Southampton. Yeah. So Reminds. It's a charity for parents of children who are neurodiverse. But also have mental health difficulties. So that's quite a wide ranging.
Andrea:I'm just guessing that the probably across, across the country, different solicitors in your boat might be doing similar things. So it's probably worth a decent Google in your area to get some, to get some help. The last piece, uh, the question here is can you ask for the information to be changed? And I guess that comes into the idea of the annual review process, does it?
Hannah:Absolutely. Yeah. So your your EHCP will be reviewed, must be reviewed within 12 months of its first being issued and then every 12 months thereafter. And that process in itself has statutory time scales around it. So what's important to remember is you've got to have two weeks notice at least of your annual review meeting. The school are delegated by the local authority to arrange those meetings. They have to invite everybody who's involved with the child including the local authority and they also need to ask everybody who's involved to produce a written report information to be considered prior to the meeting. That's really important because often parents aren't given that information and they are attending a meeting and then they're given information in the meeting and that's really unfortunate because you can't read and consider that and respond all in the same way and that isn't what's supposed to happen. So it's about making sure that you're getting the information from everybody prior to. the meeting taking place. So they have to give you at least two weeks notice, but most schools will give you more notice than that. And that information therefore should be circulated at least two weeks before the meeting. And parents also prepare a parental contribution. So if there are things that you're not happy with. that's your opportunity to set that out in writing so that we go into that meeting with everybody knowing where, where all the different parties are at. Discussions will happen in the meeting. Whoever is chairing the meeting, usually the SENCO at the school will complete a form which will then go to the local authority from that meeting. And there's literally boxes to tick on that form, which says, did everybody agree that, you know, an EHCP is still required? And are there any requests for amendment to the EHCP? You will tick that and you will make sure it's really clear in the paperwork. Yes, I think my child needs more one to one, say, for example. And then that information goes to the local authority and the school have to send it to the local authority within two weeks of the date of the meeting. And the local authority must make a decision about whether or not they're going to amend the plan within four weeks of the date of that meeting. And that's really important because if they decide they're not going to, and you've asked for an amendment and they say no, you will get a right of appeal against that decision. If they say yes, then they have to issue an amended draft EHCP for you to consider, just like they did in the original process when you got it. They will say, well, this is what we're proposing. You have an opportunity to comment on it. And then the whole process must be concluded within 12 weeks from the date of the annual review starting. So, That, that is your end point. And again, you need to mark your calendar because those sorts of things can be really important in terms of losing time. Say, for example, you've got an annual review and we're looking at a key stage transition in the next year. So that annual review is critical because parents are going to be saying we've looked at schools and we think our child needs a specialist provision. And this is the provision we would like consulted with. The local authority have got the time to go and make those consults. But they can't. drag it on, they have to then make a decision, which is important because that ultimate decision about perhaps, you know, whichever setting is going to be named for the next key stage transition is appealable if they, if they name a setting that you're not happy with. So, you know, in terms of managing those key stage transfers, so infants to juniors or from primary to secondary or from secondary to post 16. You've got to be thinking so far ahead and utilising the annual review process in order to navigate that process in a timely manner. And my advice would be, always assume that you're going to get the wrong answer or the wrong decision and plan for that.
Andrea:Absolutely. I think it's awful that that should have to be the advice, but it sent me advice. That helped us. A lot. And I think that leads on to what I wanted to talk about before we finished today. And this the, I found to be an incredible emotional toll that this process takes on. Parents, both from my own experiences and from the conversations that I've had with other parents going through the same process. And I know for me, certainly that. Included a bit of a sense of guilt that I was asking for additional things for my child then was standard. And what right. Did I have to do that? And I know at that time, you really helped me with that. Can you, can you talk a little bit about, uh, What you think when I say that?
Hannah:You know, each child is entitled to have their special educational needs met, you know, I've got two other children who are in mainstream and don't have special educational needs, and, and the existing framework of education works. brilliantly for them and they're able to go to school and enjoy their school day and, you know, succeed and enjoy success, be happy. But actually, if you've got a child who has complex needs, which means that that model or that, that level of provision that meets the needs of 29 children out of the class, but it doesn't meet the needs for your child, you're not asking for the moon, you're asking for their needs to be met. And that's What the law recognizes, each child is entitled to, and I think it's about trying to remember that you're an advocate for your child because they can't speak for themselves, they can't navigate for themselves, but what you're seeking to do is do that on their behalf to obtain provision, which they're entitled to, and that they can access in a way that is best for them, to get the best out of them, and to feel happy and safe in education, the same as you know, all of their peers who are in mainstream education.
Andrea:Thank you so much. I know there'll be lots of people listening to this who are having a really hard time with this process and a lot of people going into it with, with worries about it as well.
Hannah:It can feel like a long and lonely road. And I really felt like that in those early years. And particularly when we were navigating mainstream. and it wasn't working even though everybody was doing the best that they could and we had a really good EHCP in place. Things change in a way that you can never predict and my mum would always say that to me and I always kind of think to myself, yeah, yeah, but they do, they, they change for the better, they also change for the worse and you've got to just take it as it comes, I think, just kind of day by day, really.
Andrea:There is an element of balance to, to knowing that as much as possible, educate yourself, get ahead of the curve in terms of having the knowledge that you need. But at the same time, things, it is a rollercoaster ride and to some extent you have to, you have to allow yourself to go with it. And try not to, you know, and try as best you can to weather the storm through it. And, and Find other people to talk to and we've we've obviously been great support to each other for that. Yeah and but there are places to go and peeps is one of those places where where you can Get support in this area. Certainly the In Betweeners is coffee morning group is filled with people going through this This process And we, we support each other with that.
Hannah:It gives you solace to be able to to speak to other parents who are in that same boat. Because I think, you know, I didn't know anybody else at the time when we were starting to go through this process. And that was really hard because it felt like we were the only ones experiencing it. But I think in the last 10 years, awareness has changed, people are more aware and more tuned into special educational needs and therefore there are more parents who are navigating that system. And yeah, reaching out and being able to speak to other parents who are going through it can just be reassuring that you're not the only
Andrea:one.
So huge. Thanks to Hannah for sharing all this fantastic information with us on today's podcast. I've got no doubt that a lot of the topics that we've raised well have sparked more questions for some of you who are listening. So please do share any questions you have either on the posts where you found this podcast or directly with peeps. And we will look into doing additional podcasts or answering these questions in the best way that we can. We really want to support everyone who is going through this EHCP process, but also anything to do with HIE in the best possible way that we can. Again, thank you so much to Hannah and thank you mostly to you all for listening. And I hope you'll join us. for another podcast soon.