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Medical Negligence
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Successful appeal against a refusal to assess results in fully funded package of support

Sean* has mild cerebral palsy, resulting in dysarthria. He has fine and gross motor difficulties, problems with his ability to maintain attention and has subtle language difficulties related to his dysarthria. He has managed to stay within the broad average range for national curriculum levels, albeit at the lower end of the scale. 

Sean’s parents are challenging the health authority for injury caused at birth resulting in cerebral palsy. The case is ongoing but the health authority has accepted liability and a trust fund has been set up with a deputy appointed by the Court of Protection to manage his funds. Before our involvement the trust was funding all Sean’s therapeutic support in school. This was a costly package involving weekly input from independent physiotherapists, occupational therapists and speech and language therapists and was managed by a case manager.

As Sean progressed through primary school, he started to fall further behind his peers, although still remaining just within the national average. He started to exhibit difficult behaviour which he generally managed to hold in at school but which erupted at home fairly regularly. Sean’s parents were finding it difficult to cope. Some professionals suggested it might be due to the need for a consistent approach at home; parenting programmes were commenced and various strategies put in place.

Sean’s deputy asked us to assist the family to see if we could get any additional support in place at school. We put together a request for an Education, Health and Care needs assessment which the local authority initially turned down. The local authority accepted that Sean had complex needs requiring intensive support from more than one agency but did not accept that he needed support above the level normally available to children in mainstream schools. The local authority said that:

  • Within their local authority, schools could apply for additional resources and funding without the need for an Education, Health and Care Plan (EHCP). The school would have to apply for this funding with the expectation that Sean would have to ‘compete’ for funding with other children in maintained schools;
  • Sean was making progress within the national curriculum levels for his year group and that he only required help with the physical aspects of lessons; and
  • Any additional support could be accessed via the local offer without the need for an EHCP.

We helped Sean’s parents lodge a strong appeal against the local authority’s decision to the Special Educational Needs and Disability Tribunal. The local authority backed down fairly quickly and we were able to withdraw the appeal without having to go to a hearing, thereby saving the family time and additional expense.

The local authority carried out the EHC needs assessment. We ensured they did this correctly by liaising closely with the local authority, all professionals and the family’s case manager. We advised Sean’s parents and the case manager ahead of meetings with the school and local authority and worked with the independent treating therapists to ensure their reports were sufficiently detailed to assist with drafting the EHCP. As part of the assessments, it was found that Sean has a specific language impairment that needs addressing and that this may be the cause of his emotional outbursts.

The local authority completed their assessment and agreed that Sean required the support of an EHCP. Discussions were had with the local authority about the support that Sean requires in school and it was pointed out that Sean’s trust fund was privately funding all his therapies in school. Through negotiation the local authority eventually agreed that Sean would get full time 1:1 support from a teaching assistant and that his privately funded therapies would continue to be provided at school and be funded by the local authority.

Sean now has a robust, detailed EHCP which sets out all his educational needs and all the support that he requires very clearly. Sean will be going into his last year of primary school and his parents will be looking at secondary schools. The detail in the EHCP provides valuable information when his parents are looking for suitable secondary schools and for the schools when planning Sean’s entry into school.  

The EHCP is a legally binding document that places a duty on the home local authority to provide the support set out in the plan. It will stand Sean in good stead when he moves on to the next stage of his education.

  • Sean’s deputy is delighted at the savings made to Sean’s trust fund.
  • Sean’s case manager is delighted that he has been able to add value to the work he does with the family and has helped to recoup the treating therapists’ costs.
  • Sean’s parents are delighted that Sean’s difficulties have been properly identified and that he is now getting full time 1:1 support and regular targeted therapies and other additional support at school.
  • Sean is delighted that his teachers understand the difficulties he has and that he gets extra support to make sure he can keep up with his friends.
  • And we are delighted that we managed to achieve a successful outcome in a relatively short period of time – a complete turnaround from a refusal to assess to an EHCP with fully funded support – and all without the need for a hearing.

"Thank you so much, Laxmi; this is brilliant! We can’t believe that Sean is going to get all this support. You deserve a long holiday now!"

If you have a child who has special educational needs and would like to discuss your concerns with one of Boyes Turner’s specialist education lawyers, call us on 0800 884 0723 or email [email protected].

All enquiries are handled in strictest confidence.

*All names changed to protect client privacy.

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Laxmi Patel, Special Education Solicitor Laxmi Patel Partner - Solicitor and Head of Education

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