Mainstream / less usual decisions

This writing is prompted in part by an argument I had with someone on Facebook – who knew it was useful for something.

When you are operating in a Court/Tribunal context, your decision making (including your evidence gathering) needs to reflect what the Tribunal is likely to find persuasive. You want, so far as you can, to answer the questions they are likely to have before they’ve asked them. This means a number of things.

  1. Tribunals are not usually sympathetic to arguments for provision that lacks an evidence base, is very new or is otherwise controversial. Think very carefully before including requests for things that might be thought of as “weird and wacky” in an EHCP, because you do run the risk of making yourself look less rational and everything you say being subjected to a higher level of scrutiny. This isn’t ‘fair’ – especially when you are an expert in the topic and you are expecting mainstream science / education professionals to catch up with it in a couple of years time. Some of the time it can be easy to leave things like this out because they aren’t really educational (even using the very wide defintion of special educational provision that the Children and Families Act uses) – hyperbaric oxygen / raw food diets etc can be kept as something you do independently and left out of the EHCP. If you really do need to include something a bit “out of the ordinary”, ask your own independent experts to comment on it and why it works / is likely to work for your child, when more mainstream options are unlikely to work. Note, that you’re always asking independent experts for their professional views – they may disagree with you. In Tribunal cases you generally have a choice about whether or not to serve an expert’s report [this isn’t the case in other jurisdictions] and you will need to consider carefully whether your child is better served by you compromising on the unusual thing or by not using the expert’s evidence. Pick your experts carefully and listen to their advice.
  2. Children are people separate from their parents. In the context of Tribunals making decisions about children with special educational needs, Tribunals make decisions based on the evidence available to them about what is right for the child. Arguments along the lines of “this is my child, we’re doing x because I say so” aren’t going to be helpful to you in arguing about educational provision with a Tribunal, especially when you’re advocating for something that looks unusual. It isn’t like making decisions for yourself, where you have considerable scope for doing what suits you because you consider it’s best for you regardless of what anyone else says.
  3. Applied Behavioural Analysis is in a special category. [It’s a specific type of intense, structured input, usually for very young autistic children] It’s always been somewhat controversial, though it’s been possible to get Tribunals to order it on the basis of evidence that it’s working for a specific child and there’s a plan for it to come to an end in due course with the child integrated into a school. What’s relatively new is that there are now autistic adults online explaining that the practice is abusive and they have suffered from it. Tribunal panels can read the internet as well as the rest of us: they will be aware of this additional bit of controversy. If you have evidence ABA is right for your child, in your specific circumstances and that there isn’t any other suitable provision, you would be well advised to have your independent Educational Psychologist comment on your child’s level of distress when seen working with one of their ABA tutors as well as to have your Consultant/Case Manager comment on how ABA in 2023 differs from that around in 2000, how they support distressed children and enable children to express their feelings.