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SEND Parenting Podcast
Welcome to the Send Parenting Podcast. I'm your neurodiverse host, Dr Olivia Kessel, and, more importantly, I am a mother to my wonderfully neurodivergent daughter, Alexandra, who really inspired this podcast.
As a veteran in navigating the world of neurodiversity, I have uncovered a wealth of misinformation, alongside many answers and solutions that were never taught to me in medical school or in any of the parenting handbooks.
Each week on this podcast, I will be bringing the experts to your ears to empower you on your parenting crusade.
SEND Parenting Podcast
The legal side to alternative education (EOTAS) with Adam Friel and Douglas Hamer of Geldards
In this episode, we explore the complexities of EOTAS (Education Otherwise Than At School) and its significance for neurodiverse families navigating alternative educational routes. We unpack critical questions about the legal framework, EHCP requirements, and strategies to empower parents in advocating for their children's needs.
• Definition of EOTAS and its importance within SEND
• Rising interest in EOTAS post-COVID and its implications
• Understanding the legal challenges and securing funding
• The role of EHCPs in obtaining IATAS support
• Emotional well-being considerations for children
• Best practices for advocacy and community engagement
Click to join our Send Parenting Private WhatsApp Community today for support and connection with other parents navigating these challenges.
www.sendparenting.com
Welcome to the Send Parenting Podcast. I'm your neurodiverse host, dr Olivia Kessel, and, more importantly, I'm mother to my wonderfully neurodivergent daughter, alexandra, who really inspired this podcast. As a veteran in navigating the world of neurodiversity in a UK education system, I've uncovered a wealth of misinformation, alongside many answers and solutions that were never taught to me in medical school or in any of the parenting handbooks. Each week on this podcast, I will be bringing the experts to your ears to empower you on your parenting crusade. If you're looking for a safe space to connect with other parents navigating their neurodiverse journey, our private WhatsApp community offers support, insights and real conversations with like-minded parents who truly understand. Join the conversation today. You can find the link in the show notes.
Speaker 1:In today's episode we're diving into a topic that has sparked a lot of discussion in the SEND parenting community IATAS, or education other than at school. Many parents are forced to explore alternative education options for their neurodiverse children, but navigating the legalities, funding and practicalities of IATAS can often feel overwhelming. To unpack this complex topic, I've asked us to be joined by two incredible experts from Geldards. First one is Adam Friel. He's partner and head of education law and brings over 14 years of experience in SEND law. His passion for advocating for children's education stems from his own personal journey with dyslexia and the challenges he faced. He's also a parent of an autistic son and he understands personally what it feels like and the struggles that we have faced ourselves. Our second guest is Douglas Hammer, who also works at Geldar's and is a specialist SEND solicitor. Is Douglas Hammer, who also works at Geldar's and is a specialist SEND solicitor advising families on education law, particularly in regards to SEND tribunal and EHCP negotiations. He's been diagnosed with autism and ADHD and he has firsthand insight into the very challenges many of our listeners face.
Speaker 1:So together we are going to pick their legal brains to answer some really key questions what is IATAS and how does it differ from home education? What are the biggest legal challenges to secure IATAS and how can parents overcome them? How does funding work and what kind of support can be accessed? Whether you're just starting to explore IATAS or you're deep in the process of securing it for your child, this episode is packed with valuable insights to empower you on your journey. So either grab a cup of tea or coffee or pop in your earbuds and go for a walk, or start the ironing, because I know we're all about multitasking, but this episode is packed with insights to empower you on your journey.
Speaker 1:So let's dive in to the world of IATAS. So welcome, Adam and Douglas. It is such a pleasure to have your two legal brains on the Send Parenting podcast today to discuss a very hot topic, not only among my listeners but also in the Send Parenting community, which is IATAS education other than school and I'd like to start briefly by you both introducing yourself and just telling us a little bit about what your experience is within IATAS. Okay, adam, should we start with?
Speaker 2:you? Yeah, so I'm Adam Friel. I'm a specialist lawyer in SEN law and I've been practicing this area. I always forget when I started, but around about 2008,. I think about that time and I suppose education otherwise than at school, cases I think there were quite a small proportion of cases, I think really pre-COVID, and then from COVID onwards we've seen quite a high take up of people wanting a YOTAS and I think there's various reasons for that. Really, we just lost Douglas for a second, but he'll be back in a moment but they are really quite complex.
Speaker 1:How much are they increasing Adam? Is it significant?
Speaker 2:Yeah, I'd say prior to COVID we saw one or two cases a year, and I think at the moment we've seen a really big increase in that, and there's a number of reasons for that. I think there's a better understanding of special needs. I think there is also an element, particularly during lockdown of, I suppose, a certain demographic of children with SCN who had been at home during that period of time, particularly some of your kind of high functioning, autistic children, maybe unmasking during that period of time and then really finding it hard, with anxiety, to return back to a school setting and being unable to do so, so kind of. I suppose local authorities refer to it as emotional based school avoidance, so related to anxiety and stress, and we have seen an increase in that. It's always hard to judge with these things, though, because we're just talking about our own caseload, so they might have been with other solicitors in this area, they might have seen a much higher caseload during that time, so we're only basing on what we see, but generally, when we speak into other lawyers and barristers in this area, I think they would say that the trend is very similar.
Speaker 2:There is also an element here about us just being better at understanding SEN and understanding that sometimes when you send a student who is showing that kind of avoidance of returning to a school back into those settings, you can actually make the situation worse. I think previously a lot of these students usually fell through the system so didn't have EHC plans or statements as they are now All the way around yeah, all the way around and so I think they were kind of forgotten by the system, whereas now I think parents because they are much better understanding their rights and understanding you know when something is not going right with a child's education that there might be a hidden need there, for instance are much better at kind of seeking the support of an EHC plan which has the Neotis outlined in it.
Speaker 3:Yeah.
Speaker 1:That's great. And, douglas, you're very involved in EHCP plans. So tell us a little bit about your background and then we'll get into the nitty gritty of what is IATAS.
Speaker 3:Sure, yes, I mean, I'm also a specialist at SEA Enselist. I trained under him, so all of my faults are his, but hopefully very few. But I suppose I started about 2013 and he plucked me off reception and became his assistant in his paralegal and then a trainee and I'm now I'm here with him in Geldads and, yeah, we have a lot of work coming through. That's for all sorts of things connected to an EHC plan, but I'd definitely say there has been an uptick in in the AT atis. Um, basically similar I I would. I would come with a from a similar angle to adam there. Um, I think covid was, it was a game changer.
Speaker 3:I think an increase in presentation of demand avoidance and pathological slash extreme demand avoidance is is certainly probably connected and fundamentally, I think a large number of children that end up with the EOTIS packages. There's probably some anxiety baked into their needs. That may be school phobia, anxiety around other people. There may also be significant sensory needs. We can get into what needs profile leads, but I would say that the profiles that would typically call for an EOTIS package seem to be increasing in presentation. So that's kind of half.
Speaker 3:And actually another one which is an interesting one is that I think people are becoming more informed. So we can thank your podcast, among other, and we have our own podcast and, uh, I suppose we is more him. He and my, uh, my, my colleague salazar, have a podcast which I've been on a couple of times as a special guest. But, um, yeah, I think parents are becoming more educated and one of the places that you see talk about iotis uh quite having increased in prevalence is parent forums and parent groups and stuff like that. Oh, by the way, just a little bit of info about me.
Speaker 2:I have diagnosis of asd and adhd and, uh, I'm not breaking any ground to to break his uh fact of being a diagnosed dyslexic um, yeah, and to add to that I think douglas says I plucked him out of reception I should say that I noticed straight away that douglas was a a very strong talent and was wasted at our previous firm's reception and that's kind of why he joined me and originally he was my, I think, legal assistant and then my um paralegal and then trainee solicitor, um, and he was originally there to support my dyslexia. Mainly, I realized that Douglas is much better in terms of written prose than I suppose I am. I could spell better than me, and that kind of developed from there.
Speaker 1:It's a wonderful meeting of the minds and combining your strengths and weaknesses together to show how magic can happen.
Speaker 3:And I think you know that's you know. Really great, it's a classic symbiosis. Actually, you have a child with dyslexia.
Speaker 1:if I recall, I have a child with dyslexia and ADHD, and she follows in her mother's footsteps. I have dyslexia. I can't diagnose myself with ADHD because nobody can remember my childhood, including my only living relative my father has no idea, so it's impossible to get a diagnosis if you don't have anyone to report on that. But yeah, no, she's got ADHD and dyslexia and it's you know. It's recognizing that and then being able to support her has been hugely important, just like what you guys are talking about now. So let's get back to the topic, though. In terms of IATAS, what does it mean in legal terms and what is kind of? You know parents that are wondering about it, who maybe have some of the children like you described there, douglas. They may or may not have an EHCP. What are the first steps? Question what is IOTAS? And you know my, my kids refusing to go to school. How would you take them on that journey and what would you? How would you educate them? Cause that's really what my listeners want, to kind of unpick.
Speaker 2:You want to go first, or should I jump in? Uh, you can get, you can start off. So I think there's a number of different situations where, um a parent might be asking about, um IOTAS, which is education otherwise than at school. Usually you obtain a yotus package with an ehc plan. Before that you might have a home-based program. The local authority, I suppose, has discretion to kind of, I suppose, support that or not to support that. But with an education otherwise than at school, the local authority is recognizing that for various reasons your child cannot attend a school and be educated like everyone else and no school, including a special school, is able to meet need and that's why the student is being educated at home with a package of support through their EHC plan. There are a number of ways that it can, I suppose. Suppose come and begin.
Speaker 2:A lot of the time we see it as being a situation where a child has been attending a school and maybe, as their needs develop, they have found it really difficult to cope with that school environment.
Speaker 2:So it could be a number of different aspects. It can be their difficulties accessing the curriculum, but it also can be their difficulties coping with the social communication integration in that environment. It can also be their difficulties coping with the noise, sound of that environment which has an impact on their I suppose their social, emotional and mental health. The consequence of that is they become disengaged from that environment and usually it gets to the stage where it's a stage where they will simply not want to go into school and a lot of the times where parents have tried to make them go into the school environment, it has led to a kind of escalation. Anxiety. Distress can lead to quite a high level of meltdowns as well, and effectively, hopefully, in most situations. You'd hope that the authority can see that the mental health element and the fact that that person is not coping with being in a school environment you.
Speaker 3:You wrote in a in a pleadings once. It was like sending someone with shell shock back to the front line, yeah, um, so I'll just sort of chime in with my angle from it. Basically, yeah, iotis is education otherwise than in a school, and it comes about because of section 61 of the children families act 2014, and the previous um iteration was section 319 of the education act 1996, and basically it's this concept where, um, the local authority will educate your child at home or an alternative location that's not an education institution, um, so basically the local authority is paying for home education of your child. That's pretty much what it breaks down to, um, and yeah, when a parent would be advised to consider that as an option is essentially when school you can't. The way I wrote it in my notes is if you cannot see a way for your child to get into school, potentially, uh, you've just, you've got no other option other than uh to do some home education and um, you can engage in home education yourself. That's called elective home education. That is a right that all parents have. You actually have an obligation to have your child of compulsory school age receive suitable, efficient, full-time education. That's section 7 of the education act 1996 and you can discharge that obligation by putting your child up for be educated by the state, or you can send them to an independent school, or you can electively home educate them yourself, which doesn't actually mean that you have to educate them yourself as you're the teacher, but you basically have to arrange someone to educate your child. Problem is is that if you're doing it all yourself through that method, there you're allowed to, but the local authority has no obligation to pay for anything. They don't have to help you at all, they don't have to bring in any tutors, any therapies. And if we're talking about children who can't go into school usually excuse me they have a complex range of needs and the support they require is going to be well over and above what a normal person has the resources to get.
Speaker 3:So the final point I have here is I like to tell my clients if you think of a pyramid of provision, a pyramid of provision that the system basically envisions given to your child, the bottom rung of the pyramid would be everyone in the maintained mainstream sector, so that's the vast majority of people in school, and then basically the idea is that that should be sufficient for everyone, and then there's a certain number of people who it's not sufficient for. And then the next thing that you look for, that the system expects you to look for, the local authorities expect you to look for, is something slightly more specialist. Much which might be a unit in a maintain mainstream school, and then, as you go up, it's really if I'm honest with you completely mercenary. It's basically cost and and and rareness. Uh, so you're basically saying, well, if you can't, if your child isn't okay in a maintained mainstream school with a unit, let's now try either a maintained special school or an independent school, and then, if that doesn't work, let's go for something more extreme like, for example, independent residential school, independent special school, independent residential school.
Speaker 3:At the very top of the pyramid, I would say as you go up, there's a general implicit acceptance that the needs are becoming more complex and more difficult to deal with and you need to really have more of a bespoke approach if you go to an end a high quality independent school that's really focused on maybe meeting one specific type of need.
Speaker 3:They will have very individualized curriculums. They will have a high level of involvement from professionals who are checking every aspect of your education to see how it's going, developing and maybe pushing here, pulling here, whatever. But the highest level of bespokeness and really you could probably say the rarest type of provision, at least traditionally is the top of the pyramid, iotis, where we're basically saying we are going to devise a bespoke package for this child. Fundamentally, parliament and the system, whatever you want to call it generally wants to get a child back into school. So if they've been experiencing EBSA or EBSNA whatever you want to call it other difficulties attending school, the idea is let's rehabilitate your relationship with the education system and get you back into education. There are going to be some people for whom that's just not reasonably foreseeable, at least in the near near future. So you generally want to think about getting them onto a package that will will sort them out, potentially for the rest of their education. So unfortunately, with you, that's interesting sorry
Speaker 1:sorry, that's interesting, though just just to respond to that a bit, in terms of that pyramid and going up, I imagine there's parents who go up that pyramid. There's also a question of well-being is in jeopardy, so, and they're not going to school, who then are just like, well, I have to home educate them. It's not what I want to do, um, but that's what I'm doing, and that must then further muddy the waters, especially if they don't have an EHCP. So, um, it's. It sounds like you know you need to follow the rungs of the ladder to be able to get to it, and you could maybe penalize yourself if you decide not to send your child into school or if you don't have any HCP. I know that's a big kind of question, but that's kind of I'm sure, it's sort of reasonable.
Speaker 2:So it's part of the problem, which is you. Often a lot of the cases I've been working with are students who are, say, autistic but very bright and academically very gifted. And usually if we're looking at primary, you see a kind of, I suppose, a trend where they might be doing pretty well up until about year four and then from year four onwards you find that the curriculum becomes more advanced and there is more kind of abstract concepts and also, obviously, social relationships become more advanced as well and you see a high degree of anxiety there and often I think it kind of feeds into other things like sensory needs becoming more overwhelming at that stage. And then you see those children going from quite happy to attend school to not wanting to attend at all and at that stage parents will try their best with school to bring them back into school. With the cases that we deal with, those efforts to get them back into school often don't work and they can actually often make it even worse.
Speaker 2:And the problem with the pyramids, as Douglas was saying, is our educational system works in this idea that if you're not, you know, progressing, then you put the provision in place to meet that need, and it's reactive, it's not proactive exactly. And the problem is is sometimes what you really want? Is it to be really proactive for saying we've identified this person with, you know, mental health difficulties? If we are too pushy at this moment at getting them back into a school situation, we're going to make the situation worse. So often when we're dealing with the Otis packages effectively, the situation has been made worse by these students being kind of pushed to go back into school and then becoming even more disengaged.
Speaker 3:Yeah, there's no doubt it's always getting worse. So basically the straightforward answer to the question how do you go up the pyramid of provision Broadly? There are two ways of doing it. Number one your child repeatedly fails. Number two you have experts who engage in speculation based on evidence to say if you tried to go to this rung it would fail.
Speaker 3:Now that is the standard way of arguing for an independent specialist school. Often is the case that that's kind of one of the friction points, if you want to say phase transfer between primary and secondary school a large number of our cases. And also there are children who have significant needs. So they're in nursery and they're going into reception and we know that they're not going to be okay in maintain mainstream reception. So we're bringing in an independent expert to engage in an act of speculation to say, rather than allowing this child to fail, we're going to tell you what's going to happen if you put them there, then hopefully the tribunal or maybe, if we're lucky, the local authority will agree and see that side of the coin. The difficulty here is that getting to the top of the pyramid, especially from the bottom, is rather tricky unless you have someone with very, very stark needs and I would say generally that fact of school having failed usually is required.
Speaker 1:I think the problem yeah, so people have to have been engaged in school. Is what?
Speaker 2:you're saying yeah, exactly. But the problem with these types of cases is it really starts with the training of staff and actually the local authority kind of, I suppose, truance officers right at the beginning. So they're not really identifying this kind of group of people earlier on enough and think to themselves well, this person doesn't have an EHC plan, but they clearly are really anxious about turning up to school. Is there other needs there? Do I need to talk to school about this? Do we as a local authority on our own, need to initiate a EHC needs assessment? Has that ever happened? Adam, I've been doing this since about 2008, I think maybe slightly earlier. I've never seen a local authority initiate on their own accord a needs assessment, just generally. But with these cases what you really need is someone to really understand what's in front of them and realise that if you push someone in that situation straight away back into that environment, you're likely to make the situation worse.
Speaker 2:So often when we are kind of dealing with the case, it's usually at crisis point. There's usually there's some sort of home educational program. Parents are really struggling because they're usually balancing their, their jobs in their own lives and their other children with having a child at home where they've tried to find an educational program and at the same stage we're actually applying for an EHC plan and getting through to one. And usually when we get to that stage of designing the EHC plan, as Douglas was saying, the government's general position is every child should be in an educational setting. So the idea with the OTIS that we're doing is it's usually ideally a temporary thing where you're kind of reengaging someone at at home in kind of learning and then the idea is, over time, as they develop, you find a stage where they can return. The otis packages that um we look at designing are very specific about professionals monitoring what's happening and making sure that person is is at the right stage of returning to their their education yeah, so we can get onto the details of eotis in a moment.
Speaker 3:but, um, because, because that's part of the prompting, that's what olivia planned later on the podcast. But, um, but basically, just to finally uh head off one of the points that you made, olivia. You said if you're home educating your child, does that mean that you are losing the opportunity to have that evidence base to show that school has failed? There's no doubt that if you take your child's education into your hands and send your child to the best independent schools that you can find, you are losing a certain type of evidence you just have to accept it which is the failure of maintained mainstream school Doesn't mean that you can't then go from there to getting an EHC plan where the local authority is paying the fees of that school, or maybe you're sending your child to an independent school, but it's going to be slightly harder. Um, and ideally you're going to need a school in that scenario which is sort of on board and able to get necessary information.
Speaker 3:It's basically the same thing for if you're doing ehe, elective home education, if you choose to electively home educate your child because you know that iotas is required uh, it is.
Speaker 3:I'm I call it iotis because of the difference of the operation of section 19 of the education act 1996, which is education otherwise than at school, which is expected to be provided by a local authority If your child is incapable of attending school at a certain time.
Speaker 3:That only applies to compulsory school aged children. And then EATIS is education otherwise than in a school. It comes from a different line of legislation, it has its own separate sort of case, the jurisprudential history, and that is the one that you get through an EHC plan. But in any event, if you're going for EOTIS and you haven't had the opportunity to show that your child has not succeeded in a maintained way actually any school really, because you've been electively home educating them the own, the onus is on you as the person coordinating or maybe even delivering home education, to have some sort of systematic process of charting your child's progress or lack thereof, and ideally you going with reference to outside tuition agencies or social club opportunities which exist out there to sort of be able to put together the case. And then you're certainly going to have to involve experts who can engage, remember, in the act of speculation to say, actually if mom and dad had sent Johnny into school it would have been a complete disaster, and here's our evidence why.
Speaker 1:I mean, I imagine that a lot of parents, or at least a lot of parents in my community who've been speaking on this topic, have said you know, their kids have gone through primary school like your other example. They'd be managing okay, and now it's gotten to be too much. You know either. You know the anxiety wise, the pressures of school, and so they have failed in school. But maybe the school hasn't failed them. They might be particularly bright and being able to do the tests and stuff like that, but emotionally they cannot face going into school. So it you know they failed in the parent's mind and in the child's mind, maybe not in the school's mind, you know, um, so there's that disconnect as well that parents experience when you know they are maybe trying to get the support they can. And, as you said, the kind of you know come and touch the post at school and you know, sit in the car park and you know those kinds of interventions don't help, in my opinion.
Speaker 2:No, I mean, it's often, you know, sitting in the car park or having that kind of intervention. A lot of these students, they don't want to be seen as different from their peers, but obviously being dragged into school in that manner or having their parents sit in the car park does exactly that. So it usually makes the situation worse. And this is what I'm saying is like if you took it back to that stage of we have a child who should be in school, who's not attending because they're suffering from high anxiety, you would have thought that the most natural thing for someone to think is okay. Well, if they're suffering from high anxiety, we need to understand that. Um, not. Well, you know, we need to ensure that our attendance records are high.
Speaker 2:We need to push get put more pressure and anxiety on them yeah, um, and you get quite a lot I mean I, with schools as well. You often see that there's students walking around with badges which are for their attendance at school. So having 100 attendance at school, and I always think that you know if you have a, if you're a parent of a child who cannot attend school full-time because they have high anxiety and they haven't been, it's not the child's fault that they haven't attended that whole time. So I always feel like it's a bit wrong that there should be a badge honoring parents who may not have children with difficulties being able to just have their child in school, and also how frustrating that is for the child themselves.
Speaker 1:So it's so asinine. I mean, I have a friend and both of our daughters have been quite sick this year and my daughter daughter, she's home sick today too and oh yeah, there'll be a call even from her specialist independent school. You know what she actually really is sick. I am a GP. I know that she's ill. She's not refusing to go to school, but they don't care, they really don't care and they send letters out. It's just such a it's missing the point completely. In my opinion. This attendance push that's been going on for the last year or two. It's just absolutely asinine and ridiculous and that's what's forcing more people up the pyramid to that top place that we're talking about now today, because it adds that pressure and it causes pressure on parents, it causes pressure on the child and it doesn't, as you say, get to the root cause of what's going on and what their needs are. Yeah, I'd say in most cases we do, Olivia.
Speaker 2:There is that key moment and you can see it usually in the paperwork where you think if someone had just done something at this stage, maybe this child wouldn't be completely out of school, Maybe they would be going to a different type of school environment. But it's usually missed. And then you have complete engagement some of our cases we're dealing with with students who sitting at the table and doing anything which is seen as kind of tabletop learning is enough to kind of spike their anxiety and refuse to be part of it. So you're almost building up a trusting relationship and doing um learning without it being learning um, and you know it's from that that you build back towards returning that child, hopefully to a school setting but it is really important.
Speaker 3:I really must stress okay, it is very important that we get this across in this podcast. It is not the first thing you do, okay, it should be the last resort. We, that's what the parliament expects. I mean, actually, let's talk about the actual law. Okay, it comes from sections.
Speaker 3:Like I said, section 61 of the children and families act states that a local authority may arrange for any special educational provision um in section f of an ehc plan that is decided is necessary for the child, young person to receive um to make it otherwise than in a school, okay, and that's subsection one of section 61. Subsection two of section 61 states an authority may only do this if it would be inappropriate, if it is satisfied that it would be inappropriate for that provision to be made in a school, okay. So if you think about it, you're basically saying well, this section f provision, can we deliver this for the child in a school? If we can, then you're not going to get aetis. So we really have to think of it. Really it's essentially is the entire schooling system inappropriate for the child? Okay, if it is, then we go to aetis.
Speaker 3:So you've got a high, a really high threshold to get over um, and I just counsel parents very strongly to appreciate that if you're thinking about this in the back of your mind, please don't fixate on it. Or to get too um, go too much down that wormhole. You really need to, in good faith, look at all of the schooling options that are on the table. I really advise parents to engage with them, even if in the back of your mind, you know that whatever you do, it's 100%. Your child needs to be schooled at home. You do need, in good faith, to engage in the process of looking at schools, and I'll tell you one of the reasons why that's actually a very, very good idea on a practical basis is that if you get high quality, independent, specialist schools turning your child down, you have a fantastic piece of evidence that the only option for them is this education otherwise than in a school.
Speaker 2:Even taking it a step back. I mean, when you're looking at the local offer which is on all local authorities' websites. It gives you the schools available. So mainstream, it will give you the options of mainstreams with units and also give you the local authorities' special schools. It's also looking about whether they are appropriate or not. And you know what ideally you would find is there is a school available where if your child is not accessing education and we've got to the stage of the EHC plan it's a possibility of transitioning them into that setting or into an independent setting if there's nothing appropriate.
Speaker 2:Most parents I talk to have their children at home who are not being educated within their school. Number one thing they that you can see and we discuss is actually how difficult it is having your child at home all the time, the impact it has on you as a family, impact it has on that young person or child from being isolated all of those aspects are are a factor. So with the otas in law it's kind of seen as a last option and I think if a parent is looking at it they should really look at it as the last option. They should be looking at whether there is any educational environment, first of all, which can meet need. And if they've reached the conclusion that there isn't and there needs to be in a otis package, then they should be thinking well, what does that look like? Um, I know we're going to talk about that.
Speaker 3:We'll talk about in a second and uh. So basically, if you want to go to the, the piece of case law that really is the linchpin of this area, which was the application of section 319 of the education act, it's the case of hounslow, tm and hounslow, that's a court of appeal case in front of three law justices and basically they give uh at paragraph 26 of that judgment, which obviously you can find that judgment just type in tm and hounslow. And when I say and I actually mean little v, that's just the way that we pronounce things in the legal area but set paragraph 26, you're looking at circumstances which might cause school education to be inappropriate, so which might cause it to be inappropriate to deliver special educational provision in section f of an ehc plan. Back then it was part three of a statement, but basically the law has been imported from that because it's broadly exactly the same, um and and and they say uh, this is a list but it's not exhaustive and you've got to think about things like the child's background and medical history, the particular educational needs of the child, the facilities that can be provided by a school, the facilities that could be provided other than in a school, the comparative cost of the possible alternatives to the child's educational provisions, the child's reaction to education provisions, either at school or elsewhere, the parents wishes and any other particular circumstances that apply to a particular child. So not only are, as we'll talk about, eotist packages very bespoke, the the way you get to eotist being necessary is a bespoke journey that, including it, requires a holistic review of everything.
Speaker 3:I suppose one of the reasons why we sometimes end up in tribunal having to go to eITAS is that there is as much as for other areas. There is no instruction guide as to when a dyslexia specialist school is appropriate or when an ASD specialist school is appropriate. There certainly is no basic standard and every local authority has their own internal thresholds where they'll say well, you're an AOTS candidate or you're not. And sometimes it's very much up for debate, as you can see from the Hounslow case. That was a non-exhaustive list. It's very much up for debate and very much up for consideration.
Speaker 1:It's interesting, though, because, for a know for, for a parent, and and and speaking for myself as well you, you go on a journey, right. So first you, you, you realize that your child is not doing well in education and that they need additional help, and then you kind of question yourself. And then you, you know, you hear about this thing called an EHCP, and maybe the school supports you, maybe the school doesn't support you. So you're on a journey and it almost sounds like you need to, and I've spoken to Adam about this before. The sooner that you intervene, the better. So don't delay. If, talking to your SENCO, seeing what your child's needs are within education, start building that case, and if you need to get an EHCP, it's sooner rather than later. Especially when they start hitting these transition years and it gets more complex, you could be hitting walls. So I think advice for parents is to really, you know, think about and it's actually a piece of advice that I remember from you, adam, because I was like, oh, I don't know, I don't know, and you're like you know what. You need this because you need to be able to show what Alexandra's needs are and what she needs to be supported in, and it's really important and I think the sooner you do that the better. It sounds like, because you need not that you're trying to get to IATAS, you're actually trying to find a good environment.
Speaker 1:None of us want our kids home 24 hours a day, most of us anyway. I have met some amazing mothers who, you know, a shine a light on them it's not me but, um, you know. We want to find a place where our kids can really flourish, be social, you know, in an environment that's really right for them. And I've talked to parents who, you know, have autistic children who then go to a specialist autistic school and they flourish One little. I just had someone on my show who said her son said you know, I was in darkness, mommy, and now I'm in the light because he, you know, and that's the difference finding the right educational setting can mean for these children.
Speaker 1:But if you let it leave and you don't have the EHCP, and then you know you have to go through that whole process which can take two, three years I don't know how long it can take now and then, you know, and then you can't find a specialist independent school because they're small schools, they have, you know, too many people applying for them. So you're kind of stuck. You would like your kid to go to school, you know. So I guess the advice is you got to start early and you have to go through this process. Lot of parents are sitting there with, like you know, either they don't have an EHCP yet or they do have an EHCP and they've had a hell of a kickback from local authority that no, they don't think the child needs to be in a specialist, independent setting. Being there, done that, have the scars you know. So it's it's, you know it's it's fraught isn't it?
Speaker 3:It's very important for parents to be proactive when it comes to records for your child's education. Actually, I think that's probably a prize to every single parent. I wish we would get told at the beginning. By the way, it's really important to keep records for your child.
Speaker 1:Like a health record, you need an education record. You know we talked to you about this, didn't?
Speaker 3:we. Olivia, this is relevant for you. It would have been much easier for you to go through an ADHD screening if you had had some reports kept about you, and that's what was necessary for me. Basically, it wrote all the way through my reports Douglas is probably ASD, douglas is probably ADHD, and there were so many examples and, yeah, I moved seven schools in seven years.
Speaker 3:But hey, that's a pretty good, but I think you might make a physical argument just with that. But but anyway, basically, yeah, if you're an average parent of an average kid, I certainly still recommend that you keep records, uh, be systematic about about the information you keep about them and how things are going and basically stay on top of things. I don't want to put too much work on everyone's shoulders but that would be best practice. And then it's the same thing if you've got an sen child, any old type of sen. It really helps if you keep a nice quality documentation and even a chronology so you can remind yourself.
Speaker 3:Oh, that was a really difficult term. We had a lot of stomachaches in the morning there, xyz. You know that will really pay dividends in the future. The next level behind above from that is you start. I don't want to put too much work on your shoulders, but a lot of SEN parents know that this comes with the territory. It's about educating yourself about what your legal rights are and also understanding how needs present and what types of things you might want to get investigated. And basically it goes all the way up. Hardest provision to get for your child probably is a good EOTIS package and it is commensurate that really high levels of preparation and self-informing are going to pay dividends.
Speaker 2:So I think I'll come in here with what you guys are saying. I think the first thing is what you said, olivia, about early intervention. I think that's key with every child's education and often with EOTIS cases that we deal with, the intervention hasn't been there, it's made the kind of situation usually worse. There are different types of students who would end up with EOTIS packages. Sometimes it's very clear that they have kind of significant physical difficulties, which means that you know transporting that child to a school is too much and would be too distressing. But the more common ones we see is in relation to mental health. So the actual going to a school environment causes trauma and disengagement. So from the caseload that I see and we've discussed in our team, you see that in a couple of key stages this is very general. It's not a kind of map of this, but sometimes when you have a child going from nursery into reception, you see that stage of school refusal. You see it again usually around about year four where, say, as I said, the social side of schools and the curriculum is becoming much more complex. As I said, the social side of schools and the curriculum is becoming much more complex. And then again, with certain students. You see it around about year seven, so transfer from primary mainstream to primary secondary. We see a lot of cases of autistic boys at that age really struggling and then, by about the October half term, disengaging and refusing to go to school. And then I think with girls we see a bit more of a masking and it happens a bit later. So it happens usually at the end of year eight or year nine.
Speaker 2:Obviously, I say all of this, this is what we see with the caseload we have. It's not a general picture across the board. You know a general picture across the board. But with all of those cases the key thing we see is you have an identified difficulty about attending school and a clear kind of issue of anxiety or stress and it's not got to quick enough. And then you end up in a situation of a cycle of sending this child to school, then refusing to go to school, sending them again, over and over again until it gets to the stage where a parent finally says this is enough, this child cannot attend a school.
Speaker 2:The damage done in that period of time has probably caused a situation where it's going to be difficult to get that child back into any school setting. So that's where you have a situation where a potential requirement for a YOTUS happens. There is another factor to this as well with students who have an EOXC plan, which is it might be that that child is in a mainstream school and they should really be in a specialist school setting, but they're either refused that because they're doing well academically or they might be refused that because, effectively, there is no local authority school capable of meeting that particular type of need and the sometimes the authority does not want to spend on something different, more kind of specialist, or it just doesn't exist within that local authority and it's a very far journey to do so. Either of those situations, if they were avoided and we had the right provision around and within that local authority, it's probably a situation where it wouldn't get to the extreme level of that pyramid, as Douglas is saying we don't have enough schools.
Speaker 3:We have a lot of students who need a different provision. We don't have enough schools. We also have a very, very slow system. The SENS tribunal is getting slower and slower because it has a higher and higher caseload and it doesn't have a commensurate increase in judges and support staff. So we're talking 20 000 appeals a year rather than two or three thousand a year. Um, and unbelievably, I believe the statistic I was given by it was guy darville, who, who's someone? I believe worcester county council. He came and did a talk, uh, and he said that 2.5 percent of decisions are being appealed. So if only 2.5 percent of decisions to be appealed, and that's only 2.5% of decisions are being appealed, and that's 20,000 appeals a year.
Speaker 3:We're talking serious numbers here and the knock-on effect of they're not big enough school placements, so it's really tricky to find a school which is right for someone and it taking two to three to four years to go through a whole tribunal process and get an EHC plan that names a good provision, we are allowing a lot of damage to occur, which we know is happening and is preventable, and that's going to be leading to an increase in requirement for ear test packages, because you're getting people who, like Adam said, probably would have been fine if you just got them the right provision and got them set up and they're just getting so traumatized. The amount ofd we're seeing in these children who are needing long-term ectis is unbelievable. It's interesting because you have different natures of cases that you'd say, like adam says, it's kind of a generalization, but basically, yeah, you do have a tiny amount who. You're at preschool stage you're like no, school's just not working. Then you've got an interesting one where you you go up from reception to year one which is just like okay, this is, this is what formal education looks like, and that is just absolutely terrifying and you start getting massive build-up of anxiety. It might be a masking at school, unloading at at home, or it might be disruptive behavior or whatever.
Speaker 3:Then you're talking about key stage one to key stage two. That's a significant academic increase. Then you're talking about going into year seven. That's a significant social experience difference. It's everything's much more complicated in secondary school and obviously when you're getting to that teenage era and you've got hormones and you've got difficulties like asd and anxiety and everything like that getting in the way, things become really just um, a whole different kettle of fish to what you're trying to deal with. Uh, we, we can go on until the cows come home about the fact that pro proactivity would be useful. But yeah, that is definitely.
Speaker 1:Forewarned is forearmed, and you know before, you know, I mean, like I was, I didn't even consider myself neurodivergent. I'm severely dyslexic, but it just didn't. The penny didn't drop, but people are, I know and you know, didn't drop, but people are, I know and you know. Now I've been on this journey with my daughter and it's really helped me to understand myself, as, as I think it happens to a lot of parents. Um, but you know, knowledge is power and that's what this, this podcast, is about. So I think you know, if you think your kid is nerdiverse, you know, start making sure you're tracking. I love the idea of having an education record that parents, you know, I, you know create and see and monitor, because it just hopefully could maybe cut some of this red tape Unlikely, but maybe.
Speaker 1:But let's get back to the topic at hand. Let's say we have someone who's gone through that, that triangle. They've gone through, you know, they've tried mainstream, they failed, they got an EHCP, they've even got a place at a specialist independent school and still and I have this at my daughter's school there are kids that refuse to go to school. I have moms that are, you know, talk to me, you know I can't get my, my kid, into the specialist independent school. So we're we're talking at the top now. So they've done everything that they've supposed to. How then their kid is refusing to go to the specialist independent school? How do they take it to that next level in the annual review? Or how do they go then to get an EITAS package? If they've got that history, they've done the trajectory, which I know is not going to be the case with most parents. But then what are the next steps?
Speaker 2:So I think the first one is, as you say, the annual review is to have that discussion with the school prior to it and although a plan should be reviewed annually, kind of in the name, it can be reviewed earlier than that. In certain circumstances where it's an emergency, like a sudden drop-off in attendance, and usually these cases where you have students not attending school, there's a record of an attempt or a number of attempts to get them to attend school and it hasn't worked. So in that situation you'd have an annual review. At that stage, hopefully the school or yourself has referred your child on to CAMHS as well, or there might be a mental health specialist involved.
Speaker 1:If there isn't, I'd always say to a parent that's also something you should start about five or six years, before you even know there's a problem. Yeah, just you know when your child's porn put them on the CAMHS list. Basically.
Speaker 2:Yeah, because it would take about three or four years for them to be Sorry.
Speaker 3:Very sarcastic, yeah, because it would take about three or four years for them to be Sorry.
Speaker 2:Yeah, no, I'm being very sarcastic. No, it's true. It's true, it's like a judge dread bureaucracy. Well, I think if you looked at CAMHS figures about the amount of students that they have in their case load and we talk about the tribunal, it is also skyrocketed because there's a lot of unmet need there. If we're at the annual review, hopefully the discussion between everyone is an agreement that the placement's not working. I suppose, from an authority's point of view, the first thing will probably be have we got a different school, which is appropriate?
Speaker 3:so I think that's where the discussion about true, I think the first thing that will happen is they'll ask that ewo, their educational welfare officer, to put pressure on the family to try and make sure they go in and say you know, we may even prosecute you under section 444 of the education act.
Speaker 3:This stage, that's happening right, okay, so we're at the point where everyone agrees that the child's not going to be attending full-time, or even close enough to full-time, in the school, then, yes, the the first thing the local authority will think of. Have I got anything out back? That'll be okay, yeah, and at that stage.
Speaker 2:Hopefully there will be some agreement after the review that the plan needs to be amended and the authority accepts in the case that the child needs to be educated otherwise. In that school, families can also make their own view that they can't wait for this review to happen and they can't continue the cycle of the child going in school all the time and might have decided, until this situation is resolved, to electively home educate. But I think there has to be some agreement with the school that that's appropriate as well.
Speaker 3:Um, don't don't try and try to force the system too aggressively in that regard. You have to have some evidential basis. Yeah and um, yeah, I mean basically, look, it's the. The truth is that you that there is no such thing as an ear test form, there's no such thing as an independent school form, there's no official way that a local authority invites you to suggest ear test or anything for your child. That's beyond what they're getting right now. You have to turn up, ideally arming yourself with information about what you're looking for and maybe some evidential basis. Turn up to the annual review and say right, here's my evidence and here's what I think is needed for my child and the best thing I can say in relation to actually securing something. We can get onto this as well. Do the legwork for the local authority where you can actually say well, here's what I think my child needs. I've actually gone and sourced a group that can deliver it. Here's the cost and here's what's going to happen. This is what my child needs. You do the same thing for a school.
Speaker 2:This, I think, is where some of the difficulty comes in, because with some children being able to access, say, online learning for a scream is something that they can do. Naturally, with other children, a scream is not a way that they can learn and it would involve having a tutor come into the house. But I think douglas is right most local authorities some of them do have a kind of out of school um it's usually online um provision or they have tutors that they will kind of fund, I suppose, going to a home, but most of the time they don't so and even if they do, even if they do, it may not necessarily be particularly what is needed.
Speaker 3:Now it's very important that we appreciate that what you get for your child is only ever going to be what is necessary. As interesting as gold-plated provision, rolls-royce provision, utopian provision, whatever pejorative way it's been described in the past by certain people, you've got to get what's necessary. But the truth is that there are local authorities don't have a framework for providing home tuition, and then there are local authorities who have something, but it's really rather underwhelming and it may be okay for certain situations. It's probably more for section 19 of the Education Act, when a child is temporarily unable to go into school, illness, exclusion or otherwise, where you might be able to deliver a certain amount of tuition.
Speaker 1:Do you use, though, your EHCP, though, and what you've put in there, to kind of define what provision you're going to look for?
Speaker 3:You don't need an EHCP plan to get that, which is section 19.
Speaker 1:No, no, no. I'm sorry I'm going back to IATAS, but that you need that the provision and the funding would relate to what you've put in that package or in your EHCP of what you need speech and language, occupational therapy, tutoring, I mean-.
Speaker 2:So I think the answer to that is, first of all, you have to have acceptance from the authority that a neotist is required because they might disagree with you and you might end up in a situation where you know you're home educating until, say, a tribunal looks at it and makes a decision over a case.
Speaker 1:But then again you're collecting all that evidence, right, and you're working with your In any situation, don't expect you to be able to get EITS from asking it.
Speaker 3:You may be able to get something, but to get something which is really ideal, to get some, frankly, which is necessary in fact. Um, you're most likely going to have to gear up for a fight, and any parent who's gearing up for a fight in the tribunal would be well advised to start collecting evidence.
Speaker 2:You know, yesterday, yeah, I think the thing is and this is to be fair on most local authorities um a bit like the COVID pandemic. This has caught local authorities unprepared. You know, as I say, what we see is from about 2020 and a massive increase in cases of EOTAS. From what I've talked to other practitioners in the area, they've seen a similar kind of pattern. So I think there's a lot of local authorities who may have had, like home-based programs for students who are sick and unable to attend school, and then the demand has increased massively.
Speaker 3:Yeah, and they don't have the resource to deal with it and we don't have expectations of what's supposed to be given, because basically we do have the home education guidance.
Speaker 3:Um, but parliament hasn't given us a basic requirement for home education.
Speaker 3:The best thing parliament could do would tell us how many hours of tuition is sufficient for suitable full-time education at home, because some local authorities say we'll give you 10, we'll give you 12, we give 15, 16, 18, 20, 21, 22 I've seen all sorts of numbers around there.
Speaker 3:No one really knows what's actually legally required, because it's accepted that a child is supposed to receive efficient, suitable full-time education, at least for compulsory school age. But it's also accepted in guidance that if you're getting one-to-one tuition, you probably don't need 32 and a half hours. Obviously, if you're in a class of 40 people, 30 people, you, the amount of actual tuition you're receiving is a tiny fraction of that. So it's up to play what it actually is, and every single part of home education has not been set out in terms of what you're expecting from Parliament. Local authorities don't talk to each other about what their bare minimum standards are and it's a crapshoot between local authorities to local authority and therefore parents are going to have to step up and provide what their expectation is, and they can get some information from other parents who have children who are receiving ear test packages, from experts who happen to be a good in the field and know about what a good ear test package looks like, and also from sort of any other online guidance that they can find any resources.
Speaker 2:I mean, if we're dealing with an ideal world, the code of practice would have, say, a chapter which is developed for IOTIS cases, where it outlines how they should be monitored, how they should be reviewed. I mean, ideally local authorities would have kind of the equivalent of a regional SENCO whose role is to kind of monitor these programs and make sure that they're running effectively.
Speaker 3:Code of practice would be nice. Or regulations, give us some personal, just like you have personal budget regulations. Give us some E-INTSIS regulations.
Speaker 2:Yeah, and on top of that you can have the hours. You can also look at how therapy would play into that and how you kind of monitor when someone is ready to return to school. So I mean we the metrics maybe.
Speaker 1:It might be in the future.
Speaker 3:This might be happening in the future. So, right now, unfortunately, the way that the development of human life is is that you go through tiny blips in society's development, which are half your life, and so, and frankly, education doesn't last for very long. And so, and frankly, education doesn't last for very long and you suddenly that's the end of it at 2021, whatever age it will be, and unfortunately, we're in a situation, guys, where we don't have anything prescribed for us and we have to try and do the best we can.
Speaker 2:But you know, there's also the other aspect that someone who might be educated at home, who might be ready to make that transition into a school environment, it might be that a school environment is not quite the right step and it might be that there is a learning centre, kind of halfway house, that is required to do that. Ideally you'd have local authorities who have those learning centres set up, but usually they don't. I've had cases where parents have made that move and had to identify somewhere themselves and usually the local authority will say oh well, there's a local, a room available, but that can be over stimulating and overloading for a child.
Speaker 3:Anyway it's not quite disappointing, isn't it? Because we in this lawyer adam's painting, he's talking about a parent trying desperately to find a solution to avoid their child having to be home educated for the rest of their education. So you give my child about six to six or twelve months in a good quality tuition provision, alternative education um that I think they'll be able to get back home to school. But if the local authorities fight them every step of the way, they may be hoisting themselves by their own petard because this may be a child who ends up needing to spend eight years in home education, an expensive, complex, multidisciplinary provision.
Speaker 2:So the system's not built for it is not built for it. So you, you, what you ideally want is a situation where you know the legislation or the code of practice recognizes that authorities have to have learning centers designed for students who are not able to attend school because of anxiety and mental health difficulties, and that needs to be differentiated from what is classically known as a pre, where you would send a student who has been excluded from school for other reasons. I I mean a lot of those cases unfortunately do deal with students who have SEM which have been unidentified anyway. But you know you've got to have a system which is designed for this particular demographic of students.
Speaker 3:So we can talk as much as we want about what we wish happened, but it's not the case. The case and and and the. The truth is that our job is to increase our clients chances of getting the provision that they believe is necessary for their child, and we're all looking at what's necessary and, uh, the, the, the. The key direction that a parent should go in it in anything to do with the same tribunal, to do with getting an ehc plan, to getting provision they need, is get the involvement of independent experts. I mean, look, if you're impecunious and you have no other options, you may not have the access to independent experts and that's okay. There are other act, there are other routes of evidence. You get the school that the child's been at to support you with a letter or report. That's good. You you try to to apply for other schools that turn your child down because your child's needs are complex. That's good. There are some schools that do pre-admission reports that are less expensive and will give you a lot of information about your child's needs. There are charities that do offer lower cost routes to get independent sorry, to get expert review of your child. And there are some local authority experts in some local authorities that actually are good enough to give your child a fair. Uh read out of their needs and the provision they require, although a large amount of them, unfortunately, because they are paid by the entity that they're making, have to spend money with the provision that they recommend. They're somewhat compromised.
Speaker 3:You usually are going to, if you have the money for it and the funds and and the capacity, uh bring in an independent expert. The cent tribunal that wields it we deal with parents will have to deal with is an independent is. It is an expert-led judicial arena and um, you not only want to get independent experts involved and basically we'd say an educational psychologist would be one of your central people, quite possibly a clinical psychologist, because if there's any mental health involved, and then an occupational therapist if there's sensory needs involved, and then a speech and language therapist if there's difficulties with social communication. Obviously there are other needs that they look at and there are other types of experts you get involved. But whatever expert you do get involved, I would certainly advise that parents pre-screen them. What experience do you have with the EITIS packages and do you have experience arguing for them in the tribunal?
Speaker 2:Before Douglas jumps into the kind of tribunal arena and going back to that kind of advice that you could ask for without, I suppose, seeking independent experts if your child is, say, still on the register at a school. Most schools have a. Well, all schools have to have a SEND policy and in that SEND policy it will outline the resources which are available for that particular school. They differ from school to school but some schools are better resourced than others and some of those schools will have their own assigned educational psychologists and sometimes speech language therapists as well, and they fit outside of the local authority themselves. They might be more independent about giving a view If they exist and they are able to give a view on whether they think that young person or child can attend school or, because of their needs, their presentation shows that they shouldn't. That can be quite a useful piece of evidence to obtain as well.
Speaker 3:Yeah, so there are ways of getting it done. So quote unquote on the cheap. I mean, you can actually appeal to the tribunal for free, so you can do everything yourself and for free. But we're in the business of increasing our clients chances of getting what they're aiming for, and, and the number one thing that any of us are going to tell the client is we need to look at finding experts who not only are going to be able to give you your reasoning as to why it is required, but really where the proof, where the rubber hits the road, is what is being recommended, and some experts are not going to actually be able to recommend practical or achievable support, and that is one of the key things we need to look at. What are you actually trying to get?
Speaker 2:Just to take a step with. That is to say, when we talk about instructing experts, we're instructing experts who are independent and impartial of everyone the local authority and the parent. What're instructing experts? Who are independent and impartial of everyone the local authority and the parent? What we want is experts to kind of give a view about whether they think it's appropriate. If an expert like an educational psychologist or clinical psychiatrist says actually I believe this child can be in a school setting with X, y and Z support, most parents would really welcome that and I think that I wish my educational psych report.
Speaker 1:I mean, they're hard to read these reports, I have to be honest. For anyone who hasn't had them yet, they are hard to read. But it's setting that picture along with all that history that is so important that you collect so that you have a professional, multidisciplinary team to explain to people who don't know your child why school isn't working, what's needed to be done and it sounds like. Also, what would be the pathway to get them back into school and what would that right school setting be, and kind of map that journey out which would be reviewed on a regular basis and that that you know. And then, of course, we we have discussed that there will be no place for them, you know, in a specialist independent school or alternative learning environment. So that's, that's a whole different problem for another podcast, but it's. It's really hopefully going to support that child so that you don't get continued issues and you hopefully get them back into an environment that works from them and deal with the trauma of the environment that they've been in previously.
Speaker 2:And the key thing there is, when we're asking experts to advise, we're asking them what's adequate, what is necessary. We're not asking for Rolls Royce, we're not asking for everything going. We're asking them what is key to this child's education, to engage them back into learning. Yeah, and you asked earlier.
Speaker 1:It's also, there's a knock-on effect, right too right. You then want to be part of society, part of you know, working you know and being part of life and a contributing their best, educational and other outcomes and the general goal of the compulsory schooling system and schooling system in general is to help people be contributing members of society.
Speaker 3:So in terms of actually what it looks like in EHS plan, it shows in section F of an EHC plan. Section I is the school that they will attend. So generally Section I will be blank. If they're going to be receiving an EATAS package at home or a local area or an alternative non-education institution area, you can have a school named in Section I, either because part of Section F is going to be delivered in school where it's like a flexible arrangement, or where you are planning for the child to attend there in the future.
Speaker 3:Although this is it's somewhat in the air exactly how this works, but there is a recent case with Upper Tribunal Judge Citron talking about how it's possible where you name a school where it we're pretty sure the child's going to be attending there but they may not attend it immediately. We're happy for them to be sort of marked down there and go on the rolls and then we'll get them in at some point. But generally an ear test package will be a blank in section I and then the ear test package should appear in section f. I think that the general development of the law is moving in the direction of if you want it to be a full EOTIS package where everything's going to be delivered not in a school, you probably shouldn't have school deliverable provision in Section F. So usually we change Section F so that it's now just the package of provision.
Speaker 2:Yeah, and if you were going to ask me in terms of what I see is the key in that, obviously it's down to the expert to advise on it, but usually we're dealing with students who are really disengaged entirely with the actual idea of education.
Speaker 2:So I think key to most EOTIS packages that we assist with is addressing the anxiety and the mental health, and you tend to find that everything trickles down from there. So if you're addressing that and you're re-engaging, then usually you have a team of tutors working with that student over a week. It can be a couple of hours a day and it can then lead up to the classic kind kind of school week which is about 32 and a half hours. And that might be the idea build the child up to essentially almost full attendance in terms of their engagement, learning, and then look at that transition, the the way that the tutors would work originally in a lot of our cases that we're involved with is just establishing a relationship. So it might not be doing any kind of classic tabletop learning, it might just be watching a TV show together, building that relationship, building that trust, before you can try something which is more to do with actual kind of classic learning.
Speaker 3:Yeah, I think there are two categories to consider. The first category is what we're giving the child and the second category is how we're monitoring it and developing it and overseeing it. They are both really, really important. We we always a good piece of a good piece of recommendation from an expert will be. It starts with there needs to be a multidisciplinary team that's going to be delivering the eotis package, ideally identify a coordinator or a person who takes the lead. They need to be meeting regularly. It needs to be written into Section F. Every single thing that we are creating in a neatest package needs to be written into Section F, because without that you don't have the legal backing of being able to require that it happens. So you need to have a multispecialty team that's meeting regularly, observing how things are going, feeding back to each other and then, when it comes to actually what the child's going to be receiving, you can have in, you can have, I'm telling you now, you can have in an Anetis package. This is what the child should be getting, but it may start here and and we can accept that there's going to be a ramping up of what they receive, which, by the way, if you've got a PDA child. Nothing worse for a PDA child than feeling they're out of control and things are just moving in one direction. So it needs to be able to go back down if they actually decided that they're not happy with a certain individual, they're not happy with a certain approach.
Speaker 3:But the general idea is, as Adam says, we've seen successful long-term EOTIS packages look like a period of acclimatization where usually probably only one member of the team is engaging with the child, usually the one that they have built up the best relationship, ideally one which is probably lower demand. So it's they're probably a mental health professional or a mentor and they might be doing something like mind jam over world type situation. They may be, like Adam says, just watching a movie or just reading a book or whatever. And then you slowly introduce the educational element and at the same time the therapeutic element and while you're doing this, trying to get more and more tuition, more and more therapy, enrichment, activities like community access, like health, even sort of gym type situations, going to the swimming pool, go ape or whatever like that, going to social instances you need to have a careful monitoring of how everything's going. The goal, as Adam's previously said, is to really make it as quick as possible to get them back into education. It may not happen for them, but the way that you do that, the way that you deliver a sensible ear test package, is you have this multidisciplinary oversight.
Speaker 3:One important thing to mention is that a lot of parents get into their head you cannot have flexibility in section F. You need to be quantified and specified and there must be no wiggle room ever. That's true in most situations. But when we talk about EITIS, as long as you word it correctly, one of the things that I suppose us as lawyers, one of the things that we're trained in, is contractual drafting, and I really would say that contractual drafting applies very much to section F provision as to what a child's going to be receiving. You have to carefully and skillfully configure it so that there is going to be a certainty of what child's going to be receiving child or young person but there is a flexibility as to what it will look like and there are going to be experts who are going to decide and monitor how that's applied.
Speaker 2:I suppose we are just assuming you put this provision in place and there's one trajectory which is the child engages in learning and then they're back into school. It doesn't always necessarily work like that ideally it does but it can be you're going really well forward and then something happens which leads to it kind of regressing slightly. The important thing is is having a multidisciplinary oversight where people are meeting together regularly is that you identify that and you kind of address it in terms of how you you put the provision into place.
Speaker 3:I've always liked to program it into an ear test package. Now I say I program, but obviously, like I say, this all comes from the experts. The experts are the ones who have to recommend what the provision is because, as as a solicitor, I'm not an educational expert. So even though I do know a lot of the stuff that EPs and educational psychologists and other experts recommend, I have to be very careful with how much I try to add in. I'm usually trying to fill in gaps or translate academic advice in a vacuum to what's practical reality. But generally, what I'm looking at is are we going to have wording which talks about how we're going to exit EOTIS? You shouldn't just drop a child in school. There should be a process of multidisciplinary evaluation. Is the child ready to return to education? How can we give them a piecemeal reintroduction? How can we then see how the reaction is?
Speaker 2:I usually like to we usually talk about it being almost like three stages. Stage one engage the child, reintegrate them into some sort of learning. Stage two you've got them re-engaged, they're doing well and they're getting to the stage of being ready to return to school. Stage three the transition. So getting them fully prepared for a school.
Speaker 3:Ideally at that stage you have a school or type of school that you want to send the child to and you're already identifying that place and starting that potential transition into that setting yeah, interestingly I've had a judge recently say that they didn't like the uh provision for potentially exiting eotis because it wasn't realistic that the child was going to only be in eotis for a year and ehc plans only focus on the next year. Well, that's kind of true. I don't see any reason why you shouldn't have that wording as a contingency if the child improves. But generally, I suppose generally the nature of.
Speaker 2:You see, I find that interesting because I had a case. Well, we're appealing, that's the tribunal. By the way, I had a case where the experts had come up with a similar system and it was put into the EHC plan and through negotiation parties, I think our council at the stage agreed that it should be taken out in terms of the three stages and then the tribunal in its decision put it back in.
Speaker 2:Oh, brilliant Because they thought it was really helpful that everyone kind of understood the system, and I think that's good. I mean, yes, an EHC plan should work on an annual basis, and I think that's good. I mean, yes, an EHC plan should work on an annual basis, but if you've got the flexibility and the wording which recognises that it's going to be based on that young person's mental health, I don't think there's harm in doing that. It also stops their situation where we say, right, this child is ready to return to school. And then we're like, right, where's the next mainstream school which can take this child?
Speaker 3:which would probably damage all the work which has been done. At that stage. It wasn't written in, it wasn't prepared for. Now, unfortunately, we've touched on one of the tough things, olivia, which we just have to face front on. Okay, the tribunal is completely overloaded with cases. As a result, they've had to bring in a bunch of judges, and these aren't judges who have worked necessarily in our area of law for a long time. They've had to learn the ropes quickly. Some of them are very, very competent, but they are wildly different in their judgments.
Speaker 3:And when we're talking about something that's very much judgment-based, like the TM and Hounslow criteria, you cannot rely you've never been able to rely on the same tribunal, on what the judge is going to decide. You certainly in the case of Iotis, cannot rely on what the judge is going to come up with. One of the things I put alongside all of this process fine, we tell you about preparing for a fight, and that's fine. That's always something that we're up for. We do that all the time. That's our bread and butter. But at the same time, we do recommend clients.
Speaker 3:I've always said this for every area of SEN try to be as cooperative as you can with the local authority. Don't let them pull the wool over your eyes. Don't take no for an answer, but at the same time always hold out an olive branch and, if it's possible to reach a negotiated outcome with the local authority about the contents of an EITIS package, you can often get a package which actually looks a lot better. We've done it in a few cases where we sort of had a few concessions from our clients and in exchange they've got bespoke wording that was recommended by the experts and that's gone into the EHC plan. It's looked a lot nicer than some of the judges will end up making in the EHC plan. Some of them will be very good, like the one you just said.
Speaker 1:Yeah, and I mean, but at the same time it's also this time you have got a child who's growing up and the length of time. So Also this time you have got a child who's growing up and and and the length of time. So if you, I mean to negotiate and to be able to get something in the here and now also has that benefit with you know, these are the, these are the, the kind of points that parents have to take on board, which is really really challenging, because sometimes you get too much into the fight as well. And it's balancing what your child needs now and what you can provide them. And it's costly, it's costly to hire. Paying your bread and butter takes away from my bread and butter, so it's difficult for parents. So it's balancing all those things up to get what's best for their child in the here and now, what you can afford and what you can get. But it's not easy.
Speaker 2:I think on what you're saying, though you've got to recognize that. Why would the local authorities strongly resist education otherwise than at school? First of all because I think that kind of preconditioned view of every child should be in a school environment. The second one is the reality of what we talked about earlier, a bit like COVID catching us all a bit by surprise. Iotas has caught most local authorities by surprise in terms of how it has grown in the last five years. The local authorities don't really have the resources built in at the moment for IOTAS students as a consequence consequence usually when you're bringing all this provision together it is expensive. It can be more expensive than some of the kind of um residential specialist schools that we have to rely on the private sector as well, sometimes so so you've got the, the average cost of an ehc plan where the child goes to an independent school.
Speaker 3:the national order office says it's 65,000 a year. There's going to be loads of schools which come under that because the number is massively ballooned by the very expensive provisions places like St Piers or whatever that are for very complex children. I would say for I was going to say my daughter's school is half that.
Speaker 1:Yeah.
Speaker 3:I would say for Airtis. It's such an X factor. That's one of the things that the local authorities are a bit worried about. I've seen Aeotis packages which are probably 15,000 a year. I've seen 30,000 a year. I would say probably. The average is about 50,000 to 200,000 a year.
Speaker 3:I've seen Aeotis packages 200,000 a year and they're complicated things to be sure about. Local authorities, as a result, are a little bit worried about it. I think if parents can come to a local authority, like I say, with an olive branch, ideally having done research as to what they're asking for, putting together a neat, well-presented summation of the costs and what each line item is going to cost, invite the local authority to have a discussion about do they have any propositions in the contrary and then try and work on. When it comes down to brass tacks, these local authorities are often worried about how much it's going to impact their budget. If you can end up with an EITIS package which is actually reasonably costed, may even in fact deliver an efficiency over what the type of school that they might expect to be spending money on, you may actually find that you do not have to go all the way to a tribunal to have a fight about it.
Speaker 2:We should also flip it across, which is where we found that local authorities have agreed to YOTAS without parents having to appeal. Usually the packages of provision aren't sufficient and good enough to help that young person return to a school environment. So there is the other thing, which is I don't think the local authorities have really sufficiently thought through what their own policy or guidance should be for these types of cases and basically almost created a pot which is for purely those IOTA kind of cases. I think if they put together better infrastructure, probably the cost of this overall for everyone would then come down.
Speaker 1:It sounds a bit like the Wild West with the local authority and this, but I think you've taken a very complex topic and, I think, explained it at least to myself and hopefully to my listeners as well. Are there any kind of and you've answered a lot of the questions actually from my SEND parenting community, so I won't need to go over those right now but in terms of any final takeaways then that you can give to my listeners in terms of maybe a legal perspective, maybe a practical tip or an empowerment tip that you can give people who are considering this, so I think the thing with IOTAS is it's something which it doesn't just come out of nothing.
Speaker 2:It usually is systematically a situation where a child has become disengaged from learning and usually the mental pressures and anxiety has escalated To a lesser extent. Last year my youngest son he really struggled to go into a larger nursery class. He was in a small nursery beforehand which had about eight students in there to a nursery class of about 30. At that stage we were really kind of understanding his needs and he doesn't have a diagnosis yet but we suspect he's autistic. His older brother is and he had a similar kind of issue when he entered into primary school himself.
Speaker 2:And I think the key takeaway I take from that is, although at the time he was entitled to be in nursery full-time, we with school kind of came to the decision that he wasn't coping with that and every time we try to increase it at that stage without the professional advice being there usually led to an increase in kind of meltdowns or behavior. So I think you know usually the children that we work with they are telling you they're usually voting with their own feet about their ability to engage with that environment. So as much as it hurts and there's, a lot of pressure will be on a parent, I think from school and from maybe welfare officers as well. Please be led by your child because in a lot of cases, I think, which end up in education otherwise than at school. If at some stage, as I say, it had been caught earlier on enough, you know, you could have done the needs assessment and it might be that the right school environment was there. It just wasn't the environment that particular child was in at the time.
Speaker 1:Thanks, a lot and thank you for sharing that story, adam. That's great because you know it's good to know from the parent's perspective as well as from the legal perspective, and you have that, which is you understand where we're coming from. Douglas, what final takeaways would you give?
Speaker 3:my listeners. So you asked for a legal perspective, practical tip and empowerment tip. So a legal perspective, the best way to present your case to the local authority is. Well, I think we've already talked about it's about preparation, getting evidence from any direction you can putting it together together systematically. One of the key points is that if you're going to involve experts independent experts that you screen them to make sure that they are good for aetis. It's just like for other kinds of specialist provision, like, for example, aba or psychological support you need to get an expert who has experience in that area. So that's one thing is systematic. Preparation of evidence is going to help the local authority get over the line and the tribunal if necessary.
Speaker 3:Practical tip would be certainly do your research as much as possible about what's actually out there. Because even though local authorities tend to sort of maybe overuse the argument of oh, it's difficult for us to put it into place, so we're not going to, and that doesn't really fly legally, you get rid of a lot of legwork and a lot of obstacles If you can put in front of the local authority a costed provision that you want your child to get. And then, for an empowerment tip, my piece of advice that I give every client is your anger and your emotions are a resource that you spend unnecessarily by dumping them on the local authority with no actual purpose. As much as possible I know it's very difficult try to protect your emotional energy and not give any of that to the local authority unnecessarily. If you display your emotions and how you're getting unsettled, upset, anxious or even angry by the local authority, in a way you're actually helping them. You're giving them morale because they've seen that they've broken down your barriers and also they know that they can sort of wave a red rag and control you.
Speaker 3:There's nothing more terrifying to a local authority than a parent who knows their rights and goes ahead like almost like a freighter just chugging along. Freighter, uh, just chugging along. No, yeah, I know it's going to take time because the system is overloaded, but I know the law's on my side and I know I'm going to get there and I'm being systematic about getting my information. They really are something like a little rowboat in front of that freighter and you need to just keep chugging away and don't uh, don't try and zigzag so I I would.
Speaker 2:I would completely agree with with um doug there and as a parent who not only advises parents on achieving EHC plans, I'm also a parent who has appealed their son's own EHC plan. I've used another person, a colleague of mine, to take that case forward because I don't think I can be impartial in the way that I would be when advising a parent impartial in the way that I would be when advising a parent and it's very hard when you're talking about your own child to step away from your own emotions about that situation and the way someone is behaving against you and see the case in an impartial manner. So I'd agree with Doug with that is, your energy of frustration and anger at the local authority is usually wasted. Where you want to focus your energy is resolving the situation and as, as Doug says, the law is largely in favour of parents, it's just usually about ensuring that you're demonstrating in the right way.
Speaker 3:Usually what happens is local authorities have made this calculation that if they agreed everything every parent asked them, it would be a certain amount of money. If they argue against everything every parent asks for, it costs less. So I think the the the statistic given to us by, uh, that chap, god guy darville, I previously mentioned was it's about 100 million pounds a year, I believe is what local authorities are spending to resist parental cases. The truth is, if we're honest, that if every single decision that was being appealed was instead granted, the cost to local authorities would be much more than that, maybe 10 billion, maybe more than that, if I'm honest with you. So there is financial incentive for local authorities to use every opportunity they have to resist you, to resist you, but the law empowers local authorities to slow down the process, but it's not really on their side when it comes to giving your child no provision, and even that's the case for Airtis.
Speaker 2:So it's that old kind of thing of from an authorities point of view, I suppose from a legal point of view. I'm not saying all local authorities behave like this, but there's the deny delay.
Speaker 3:Oh, yeah, yeah. So just like you'll be familiar, being american, with the behavior of medical insurers in over and over across the pond.
Speaker 2:So I think there is some elements of that which is, you know, if you have, I don't know, 20 000 people within your local authority asking for a ehc plan and asking for a needs assessment and you say no to the majority of them and only yes to a certain amount, then there's only going to be a small proportion of those parents who might take it further. And I think there is an element of that which is kind of keep the floodgates down when it comes to these kind of cases. So, as Doug says, I think pushing forward and just being diligent with that is the most important thing.
Speaker 3:I suppose I'll give another tip, which is essentially don't be afraid or resign to the fact that you think it will be useless to complain to the local authority. Every single local authority is required in law to have a complaints procedure. It's usually two or three stages. Don't be afraid of engaging in a complaints procedure as long as it's relating to things that are outside of an appeal, where the local authority is not going to do anything about it. If it's a complaints procedure, you can go through the process. Some local authorities will agree to what you're complaining about and compensate you and make changes. But if they don't, you get a completion of procedures and you go to the local government and social care ombudsman, the lgsco, previously called the lgo.
Speaker 3:They have shown themselves I posted on my linkedin the other day they've shown themselves to actually be quite proactive in enforcing parental rights and they've increased decisions in favor of parents by four times recently. And this can include if your child's not going to school, they're not getting education they do have a legal right to. If they're, especially if they're in compulsory school age, they have a legal right to receive education through section 19 of the education act 1996. That's one thing that the local authority may have been feigning your child. On that, the lg sco may have something to say about.
Speaker 3:I believe there have been decisions and, by the way, that entity does publish its decisions on its website so you can see every single one of them if you want to. Um and um. Uh, not only that, there is a general failure of a child who's going through the process to get an ehc plan and it is very, very important that you hold the local authority to account if they're taking their time, taking their sweet time, delaying to do a needs assessment, delaying the actual needs assessment, delaying decisions about what's going to happen for your child. Get the complaints process involved.
Speaker 2:That's a little piece, a little gem of advice I have for you now, and I should finish by saying sorry, olivia, is to say like we're obviously talking about local authorities behaving in the worst way possible. There are actually people within local authorities who are actually quite good at what they do and are also trying to make a difference. So please, when we say all of this, don't just take away that we think everyone who works at local authorities are terrible or anything like that it's our job to deal with the ones who are the most intransigent and difficult and obstinate.
Speaker 3:Yeah.
Speaker 1:Well, I have to be honest with you guys. In the years that I've been doing this, I have not met a person who's told me a wonderful story, but I guess that's also who I'm filtering through as well.
Speaker 3:Well, if you live in Oxfordshire.
Speaker 1:Yeah, exactly, and also I think, as we've commented on that, they're handcuffed. It know, as we've commented on that, they're handcuffed there. It's a broken system. There isn't policies and procedures, there isn't a framework. There's so much wrong that we've talked about today that it's no wonder and it is the wild west.
Speaker 1:But basically, your advice that you've given, you know parents, stay calm. You know collect your evidence, fight your fight, but make sure you're not letting it be angry. I remember you, adam, giving me words of advice when we went to tribunal. You said, olivia, I've seen the meekest people go absolutely crazy in a tribunal. And you said to me Olivia, you already seem like the type of person who might do that. So I'm just telling you please control yourself. And you know what I mean. I burst out into tears, but it's good advice. You have to keep calm and if you can keep that calmness, I mean it works with our children too. You have to keep calm with them when they're emotionally dysregulated Think of the local authority as a dysregulated child and keep yourself calm, get the facts straight.
Speaker 1:You've given us so much information today about you know what it is and you know it's not the nirvana, and I think a lot of parents do think that, oh my God, it would be so great if I could get this. It's a difficult slog to get this package. It's really hard, it's going to cost a lot of money, it's going to cost a lot of time and it's going to cost a lot of emotional energy. So my advice to parents is, when you see that need, intervene as soon as possible. Get the needs assessment, get the EHCP, try and get the right educational setting so your child doesn't end up in the place where they're so burnt out, so traumatized, that you're having to pursue this, because it does sound like I thought an EHCP was a battle and this sounds like just a battle on steroids.
Speaker 1:So I really appreciate you cutting through all of that and giving us some honest, honest answers and your experience. And I will include Gildard's link so that people want to reach out to you after this podcast. They can, and I know that and I should give a. You have to send me a link for your podcast too, because you guys do a great podcast that gives back as well and gives lots of legal advice. Do you want to do a little pitch for that so people who want to learn more can?
Speaker 2:if you, if you, like the sound of douglas's voice. Douglas has done a whole thing on the yotas already, which is really brilliant. Um, also, I think douglas and myself have both done podcasts separately about our own needs of being dyslexic and an autistic. I remember when we recorded douglas's on his diagnosis, me and my colleague sarce couldn't get a word in and we didn't want to either, because it was just a brilliant podcast and so fascinating to hear what we try and do with the SEND talks. That we do is try and empower parents, give them the information that they need to kind of ensure that they're getting the right kind of support. Very much like Olivia, I think we spoke, olivia, before you just about to start doing yours about the fact that there would be a lot of crossover. But the more podcasts and the more information out there for parents the better, because it will help that person who's really struggling understand the right kind of step in terms of their future.
Speaker 3:It's called Send.
Speaker 2:Talks yeah, that's the one. Yeah.
Speaker 1:I'll get the links, and I'll get also the links to the podcast you've mentioned as well, so people can just click on it in the show notes and go directly there instead of finding it themselves much easier and I know information is power and then you know, then you can be that freighter instead of being, you know, the sunken ship that we've also been talking about. So you know it's, it's great to have you guys giving back and giving that to everyone. It's free, you don't have to pay anything for it. Um, and it's been wonderful to have you, adam, back on the show, and Douglas for to have you on the show for the first time. I appreciate all your time. Thank you, olivia. We appreciate it. It's an absolute pleasure. A huge thank you to Adam and Douglas for sharing their legal expertise and personal insights into IATAS.
Speaker 1:I know many of you in the SEND parenting community have been searching for clarity on this topic and I hope today's conversation has helped you feel more empowered in advocating for the right education for your child. But we're not stopping here, nope. Next week, I will be joined by Joanna Gibbs, founder of Sensational Tutors, to explore the practical side of IATAS. While today's episode is focused on the legal framework. Joanna will help us understand what is actually possible when building an IATAS package. She'll bring to life how her tutors have worked with children to re-engage them in learning, helping them to thrive outside of the traditional school system. So if you're wondering what an IATAS package could look like in real life, you'll not want to miss it.