Potential to settle? The Working Document Process
As you may remember from the January edition of our newsletter, in 2017/18:
Families registered 5,679 appeals with the SEND Tribunal (20% up on last year) which is the highest total ever recorded.
5000 of those appeals were seen through to completion.
Of those 5,000 appeals, 2,300 had to be decided by the SEND Tribunal - 85% were concluded in favour of parents
This means 2,700 were concluded without the need for a hearing.
How these 2,700 Appeals were concluded will vary considerably. However, from our own experience, many appeals concluded before the Hearing date are as a result of the parties engaging in the Working Document process.
So what is the Working Document?
A Working Document is a copy of a child’s EHCP (that their parent has appealed) in word format. The LA initially sends version 1 to the parents, then both parties (parents and LA) have an opportunity to amend the document passing it backwards and forwards with changes about the needs and provision that are considered that the child should have contained within their plan. As experts reading this, you may be familiar with the working document process or have seen versions of it before.
The insertions and changes requested must be evidence based. If you are an independent expert (Educational Psychologist, Occupational Therapist or Speech and Language Therapist), it is important that you are willing to defend your work in a Tribunal and provide recommendations that are ‘specific.’ Parents are not advised to use experts who will only write a report and not defend their work. If you are attending a tribunal on behalf of the parents, you must be able to justify your recommendations.
If assisting parents in working through the Working Document process, these key points may help;
Sections B,F & I are legally enforceable. Do not waste a large volume of your time amending Section A.
Being concise is key. It can be very easy to want to include everything that ever happened to a child in their EHCP. “EHC Plans should be clear, concise, understandable and accessible to parents, children young people, providers and practitioners. They should be written so they can be understood by professionals in any Local Authority”
The document has a key (*below), always follow it. Additions made my parents will always appear be in bold. The LA’s will be in italics.
Ensure you renumber the draft each time you submit it - version 1 will be first issued by the LA, version 2 will then be the parents copy and you will keep changing the number every time it goes back and forth between the parties. You do not want to do a lot of work on the document to find that it was an earlier version. It also helps to be able to refer back to older versions if needed.
Ensure anything added is specific. Vague, unspecific and meaning words in Section F will dilute enforceability. Specificity particularly in Section F is key.
If the parents and LA are unable to reach an agreement (and do require a Hearing), the Working Document removes discussion on the day between both parties and the Tribunal will focus on the areas in dispute. Remember, parents should not settle for a poor deal for any child, no matter how much pressure at the last minute or the temptation of being able to adjourn the hearing. Ensure what is being proposed will provide what the child actually needs.
As experts, you should always be looking at the individual child’s needs to create the strongest evidence possible. Remember - the statistics are in the Parent’s favour!