Q:

We have received a refusal to issue an EHCP from our local authority and have appealed the decision. We are now progressing to tribunal and have been asked to provide witnesses. The school are not supporting us in our application for an EHCP as they cannot “see” the challenges that our son has, despite his diagnosis of autism.

The LA’s witnesses are the school SENCO, educational psychologist and a solicitor. So far, we have no one to be a witness as he has not received support from external parties since his diagnosis 2.5 years ago. We have asked the diagnosing psychologist but she would need to reevaluate him and will charge for this. She recommended that it may be better if we ask an independent educational psychologist to evaluate him.

Do we need to have witnesses to strengthen our cases and if so who else can we ask? Would legal representation be wise? We are concerned that won’t win this due to lack of school support and understanding and are not certain that paying new witnesses is the answer.

Any advice welcomed.
Thank you

JM

Jane Morgan
26 Sep 2021
Watched by 3

A: SenseCheck

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  • 30 Sep 2021
  • Other

    Complex

    Can't answer yes or no.:

    Hi Jane

    You do not have to have witnesses but you do need evidence to support your case. Evidence can be in reports or given orally at the hearing. Do you have sufficient strong written evidence? If not, you may want to consider strengthening it through an independent assessment report from an educational psychologist.

    The difficulty may be in finding an educational psychologist to assess at short notice. You can check the British Psychological Society to help you find one - https://www.bps.org.uk/

    You do not have to have legal representation. Decisions are made on the strength of your evidence so your focus should be on that.
    However, if you want representation and want to save on costs, you should check eligibility for legal help and/or consider organisations that may assist, eg IPSEA, NAS, SOS!SEN.

    If you are representing yourself, it would be good for you to understand the legal tests applied and ensure your evidence covers this.

    IPSEA has this guidance that may help:

    For a refusal to assess appeal: https://www.ipsea.org.uk/Handlers/Download.a…

    For a refusal to issue an EHCP appeal: https://www.ipsea.org.uk/Handlers/Download.a…

    I hope this helps.

    Laxmi Patel

    Laxmi Patel
    Boyes Turner Solicitors

  • Comment

  • 27 Sep 2021
  • Yes

    Complex

    Hi Jane

    It will depend on the written evidence that has been submitted within the appeal. If there is strong written evidence to support the need for an EHC plan then you could rely on the written evidence in an attempt to save costs. And ask for those that have compiled the written evidence to attend the hearing.

    You will want to look to see if there is evidence to confirm that despite school's best efforts to put in place additional provision, your child has still not made progress.

    Within the written evidence that you have submitted, there should be clear wording from professionals stating that an EHC plan is required.

    However, if you have concerns over the strength of the written evidence then, it would be advantageous to secure evidence from an educational psychologist. Therefore, yes you may well need to incur fees to do this and you will also need to check on the availability of any EP to assess and compile a report as well as attend a hearing.

    It is entirely up to yourselves whether you instruct a legal representative, Tribunals welcome appeals directly from parents so please do not be afraid to continue on yourselves. Or you could consider whether you may be eligible for legal aid. And then there are charitable bodies that could assist with advocates such as IPSEA.

    I hope that helps somewhat!

    Guv Samra

    Guv Samra
    Shoosmiths

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