[senco-forum] query

Hi Beth. There seems to be some confusion here -- which I think both me and Biff (writng sepearately and independently of me) are unsure about. You started your first posting by discussing the DDA. But you stated that the parents issue was an SEN appeal. But in your second posting you mention the term "claim" which indicates action under the DDA.

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Although heard by the same Tribunla body -- SEN appeals and DD claims are quite seperate in law and nature of action. An SEN?appeal is always against the LEA about the contents of a statement it has issued (or otether stement issues) and never against the school. And?an SEN appeal is not about "admission" -- but about about refusals to assess or issue statements / withdrawing statements -- or aboutPart 4 Placements -- and/or Parts 2 and 3 needs and provision (if the appeal is about contents of the statement). But these issues are not directly a "school matter" and schools are never called upon to defend an SEN appeal. School staff may be called as witnesses by either parent or LEA -- and may feel the neccesssity to "defend their actions" but they are never the one's "in the dock" and should not be made to feel they appear in defence of themselves or either side -- but as professioanl witnesses.

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If the issue is one of admission -- i.e.., the LEA has named a school on the statement, but the school Governors are refusing admission to the child so named-- this is a school matter -- but does not trigger an SEN appeal (or usually a DD claim). It is a simple breach of legal duty by the Governors (they must admit any child named on?a statement if the school is a "maintained" school under the terms of the 1996 Act). This is virtually always dealt with most simply by a solicitor making an application for a judicial review -- or the LEA or parent complaining to the Secretary of State for a 497 breach of duty by the school complaint. I dealt with one of these once -- on behalf of a parent -- and the Lead SEN area official at the DfES was appalled that the LEA had not acted themselves directly with a complaint as the school was refusing a legal direction from the LEA -- and they should have acted themselves -- not leaving it to the parent. Anyway when the DfES got involved the school soon admitted the child without any order from the Secretary of State -- or need for a judicial review. But the SENDIST never gets involved in legal issues involving non implementation of a statement.

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It could be a DDA if Governors refuse admission to a child -- but where they are?refusing admission to a chilsd named in a statement, the legal advice would virtually alalways be to challenge directly under the section of the 1996 Act governing admission. And not involve the Tribunal at all.

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So -- I'm confused -- the only issue where the Tribunal decides that?a school is answerable to it -- is a DD claim -- never an SEN appeal. If it was a DD claim -- then it may indeed have been wise for your school to follow legal advice as given and concede if a discrimination was clearly seen to have occured. But issues of provision are always ultimately the duty of the LEA -- and the fact that your? school eventually funded a fulltime TA -- seems to indicate that it was an SEN appeal that was being answered -- and as Biff says -- it was for the LEA to defend this appeal -- and to implement whatever was ordered -- or to concede and implement. It seems your school may have taken the?responsibility that was actually the duty of the LEA.

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I take it you school has had sound indeppendent legal advice? It seems to require absolute clarification if you are still pursuing the issue with the LEA..

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On the question of the notion that schools must provide "more than favourable treatment" if it is deemed neccessary to meet the childs needs -- this is definately not the case. There is nowhere in the DDA?law that states that "more than favourable treatment" must be applied if neccessary to meet a childs needs. The SEN?legal framework (1996 Act and CoP 2001)??only requires that provision must be arranged by the LEA to "sufficiently" meet a child's SEN. Sufficiently meeting a child's needs (under the?SEN legal framework)?could never be construed as having to provide more than favourable treatment under the DDA. The terms "sufficient" and "more than" don't tally -- and there is no legal minefield contained in this issue to warrent case law clarification in my view.

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I suggest you reuest (in writing) that whoever led you to understand that school's?are wise?to provide "more than favourable treatment" to pupils -- until such time as case law clarifies the issue -- to send to you (your school) the legal reference that suggests anywhere that children defined within the DDA as being "disabled" must be provided with "more than favourable treatment" under any particular circumstances. I consider it certain that whoever gave you such an understanding was just plain ?wrong. I hope this helps -- regards Brendan King?

-----Original Message-----

From: bhuke 

To: 'Biff Crabbe' ; senco-forum at lists.becta.org.uk

Sent: Mon, Oct 1 5:21 PM

Subject: RE: [senco-forum] query - where does the buck stop?

I think the problem is that we really don't know what would happen if it  did go to tribunal.  The parents sent in a claim - they were cross with  the LEA but the claim concerned admission, which is a school matter, and  so the tribunal named the school.  We could have held out and gone to  tribunal, but it's hard to get tough with the LA otherwise.  In the  meantime the school, parents and child get caught in the crossfire.  We  wanted to support them, and decided the best way was to make provision  ourselves and fight the battle in other ways - which we are still  pursuing!!  Not that we have much hope of success, but we believe we are  right.    My understanding is that it is unlawful not to provide 'more favourable  treatment' if that;s what is needed in order to meet the needs of a  disabled child, but as yet there is no case law.    Beth    -----Original Message-----  From: Biff Crabbe [mailto:ba at biffc.vispa.com]   Sent: 01 October 2007 20:08  To: bhuke; senco-forum at lists.becta.org.uk  Subject: Re: [senco-forum] query - where does the buck stop?      This isn't intended to be critical of your school's stance or actions  Beth, but if the legal advice was that that the Authority didn't have  strong chances of defending the case at Tribunal, why did the school  'cave in'?  If you had a similar case again, I'd suggest that the school  should say to the LA, 'tough, get on with it,' not the other way round.    Brendan has highlighted the legal duty on the Authority to provide the  necessary additional funding, if the school cannot (and there is case  law which supports this) - and it sounds as if the LA didn't amend the  statement to incorporate the new provision.  (I may be inventing an  entirely inaccurate scenario.)    (I'm still glad that the school made the provision, though.)    My understanding is that it is unlawful to treat those who fall within  the definitions less favourably, but I don't think that it is 'unlawful  not to provide more favourable treatment'.  (And I don't think that  these are the same, at all.)    Regards    Biff        ----- Original Message -----  From: "bhuke" beth at bhuke.plus.com>  To: "'Cannon - Miss J'" JCannon at sus.suffolk.sch.uk>;  senco-forum at lists.becta.org.uk>  Sent: Monday, October 01, 2007 7:27 PM  Subject: RE: [senco-forum] query - where does the buck stop?      >  > And things are changing all the time.  The DDA makes it clear that we   > HAVE to meet the needs of disabled students, even if that means they   > get special treatment - in this case additional funding from the   > school over and above what would normally be in your budget.  This is   > a very current issue with us.  In the summer term we 'gave in' and   > thus averted an SEN tribunal by employing an extra, full time, TA.  This for a statemented  > child who already has quite a lot of additional support.   We felt,  and  > so did parents, that the additional funding needed to keep him at our   > school should have come from the LEA because of the exceptional  > circumstances.  LEA said tough, get on with it.   We held out, and  then  > 'found' additional money because legal advice said we would not win   > the tribunal.  The DDA is new law, with teeth, and no case law to   > provide guidance.  So it is unlawful not to make 'reasonable   > adjustments' (and what you or I might consider reasonable isn't  necessarily so in law),  > and it is unlawful not to provide 'more favourable treatment'.   It  may  > save your head much long term grief if the money is found.   Good  luck.  >  > Beth  >  > WARNING!  > Slightly rambling hastily written email!  >  > A hypothetical situation  >  > SEN funding (100% of it derived via Audit) all spent up! Some heated   > discussion between SENCo and Head about what it 'should' be spent on   > and what it is spent on. Yr 9 Student - BESD Statement quantifying   > 15hrs TA support. SEN dept can only provide 2.5! (If we re-direct   > support, it would leave a 'support class' with 3 statemented students   > without any support).  BESD student very much at risk of permanent   > exclusion. SENCo highlights dilemma to Head. Also points out high   > likelihood of any exclusion being overturned because of the school   > failing to meet his Special Ed Needs. Head moans..."I can't magic   > money from no-where...." SENCo replies "fine - just to alert you and   > 'pass the buck'; I can only work with the resources I'm given." Head   > replies "we share the buck - we are jointly responsible" Heads   > suggestion was to move BESD student (average ability) into support   > groups to access support. SENCo declined suggestion!  >  > Questions  > 1. Is there anything stronger than 'should' in any guidance about   > where SENCos / admin support is funded from? 2. Any ideas on how to   > support this young man - to make his life chances a bit more positive   > and to avoid perm. excl.? 3. Anyone found any effective ways to   > squeeze money and put it back where it belongs? 4. Am I legally /   > professionally responsible for the failure to meet this students   > needs?  >  > Any equally rambling advice appreciated!  > Thanks  > Jess  >  >  >  > --  > This email has been verified as Virus free  > Virus Protection and more available at http://www.plus.net  >  > No virus found in this incoming message.  > Checked by AVG Free Edition.  > Version: 7.5.488 / Virus Database: 269.13.35/1040 - Release Date:   > 30/09/2007 21:01  >  >  > No virus found in this outgoing message.  > Checked by AVG Free Edition.  > Version: 7.5.488 / Virus Database: 269.13.35/1040 - Release Date:   > 30/09/2007 21:01  >  >  >  >  >  > --  > No virus found in this incoming message.  > Checked by AVG Free Edition.  > Version: 7.5.488 / Virus Database: 269.13.35/1040 - Release Date:  30/09/2007 21:01  >  >      --  This email has been verified as Virus free  Virus Protection and more available at http://www.plus.net    No virus found in this incoming message.  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