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August 2006
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Mobility Allowance is now called the Mobility Component of Disability Living Allowance. It is paid to people who have difficulty getting around outside. There are two different rates and they are paid for very different reasons.

The lower rate (£16.50 a week from April 2006 to April 2007) is for people who can walk, but need someone with them (for most of the time) to guide or supervise them when on unfamiliar routes outdoors. This is because of a severe mental disability or a physical disablement.

There can be many reasons for needing this guidance or supervision. Some examples are people who: -

• have a visual impairment
• are deaf and cannot understand spoken or written instructions or directions well enough to get around on their own
• have falls, fits or seizures and need someone to help them cope
• have a mental health problem which causes them to get confused, frightened, aggressive, etc.
• have learning difficulties

The higher rate (£43.45 a week from April 2006 to April 2007) is for people who have a physical illness or disability that severely limits their walking ability. This can be because of something like severe discomfort, breathlessness, poor balance, the risk of aggravating a condition like angina or asthma, or because you walk very slowly.

Carer’s Allowance is a benefit to help people who look after someone who is disabled. You do not have to be related to, or live with, the person you care for.

You can claim Carer’s Allowance if you are aged 16 or over and spend at least 35 hours a week caring for a person getting Disability Living Allowance at the middle or highest rate for personal care.

You can’t claim Carer’s Allowance if you are in full-time education with 21 hours or more a week of supervised study or earn more than £84 a week after certain deductions have been made (such as Income Tax).

The weekly rate is £46.95, which is taxable. (February 2007) This is reduced by the amount of certain other benefits, including State Pension, that you receive. If you receive certain other benefits at £46.95 or more a week, Carer’s Allowance cannot be paid to you as well.

You may be able to get an additional amount for your husband, wife or civil partner or someone living with you who looks after your dependent children.

How to claim

1) You can ask for a claim form over the telephone, by contacting your local benefits office.

2) You can also claim online: http://www.dwp.gov.uk/carersallowance/

3) The Carer’s Allowance Unit can send you a claim form:

Their address is Carer’s Allowance Unit, Palatine House, Lancaster Road, Preston, PR1 1HB

Telephone: 01253 856 123

You can ring these numbers between 9am and 5pm Monday to Thursday and between 9am and 4.30pm Friday.

You may be entitled to a reduction in your Council Tax if you are caring for a disabled person.

You may be entitled to a Council Tax reduction if you are a carer and you:

• live in the same property as the person you are caring for
• provide at least 35 hours a week of care

Also, the person you care for must have one of the following:

• higher rate of the care component of Disability Living Allowance
• higher rate of Attendance Allowance
• an increased Disablement Pension
• an increased Constant Attendance Allowance

The above information is taken from the DirectGov site.

This is a national card that can be used to verify that the holder is entitled to one free ticket for a person accompanying them to the cinema.To apply for the card, you will need to meet one or more of the following criteria:

a) Be in receipt of the disability living allowance or attendance allowance.

b) Be a registered blind person.

The card is valid for 3 years from the date of issue.

Application forms are available from cinemas across the UK supporting this card. Alternatively, download an application form to print out and fill in from the Cinema Exhibitors’ Association Card website.

http://www.ceacard.co.uk/

Statements - Part 3

Issues of importance and the law

This is part of a much longer document for an MA module on SEN which can be found at http://teach.newport.ac.uk/sen/sen200607/MAsenLaw.html

Therapies

Speech and Language therapy is, in almost every case, educational: R v Lancashire ex parte M [1989] 2 FLR 279. A must read case!

The Tribunal has found both Occupational Therapy and Physiotherapy to be educational in certain circumstances, although not in the case of B v Isle of Wight [1997] ELR 279, notwithstanding that it was felt by the judge that both would have educational benefits. In addition, the Tribunal has also found hydrotherapy and music therapy to be educational on the evidence in particular cases.

However, nursing care for a child who needed permanent nursing supervision for safety at school is NOT educational and so is not to be included in Part 3: City of Bradford v A [1997] ELR 417.

Specificity The legal position

Section 324 (3)(b) Education Act 1996 requires a statement of special educational needs to “specify the special educational provision to be made for the purposes of meeting … needs”.

Regulation 16 and Schedule 2 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 requires provision to be specified in terms of “any appropriate facilities, equipment, staffing arrangements and curriculum …”

The 2001 Code of Practice makes it clear in Paragraphs 8:36 and 8:37 that the special educational provision in the statement MUST be specified clearly and in detail and normally quantified.

The case law

The current leading case is L v Clarke and Somerset County Council [1998] ELR 129. In his decision, Laws J said (at para 137B) that “the real question … in relation to any … statement is whether it is so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case. Very often a specification of hours per week will no doubt be necessary and there will be a need for that to be done.”

However, in the true judicial way of not making an absolute decision, he also said (at para 136H) that “there will be some cases where flexibility should be retained”.

It has been that statement which has been explored through the courts in recent years. In E v Rotherham MBC [2002] ELR 266, the High Court held that the words “any change in the level [of] support will require a formal discussion between the LEA, the NHS Trust and one or both of [the child’s] parents …” was not specific if there was to be a review. As a six-monthly review was built into the statement, the level of provision after that review would be uncertain.The court also made the point that if the level of provision was to be amended as a result of discussion, as the clause was drafted, there was no need for there to be an amendment to the statement. That, consequently, deprived the parent of any right of appeal if she disagreed with the revised level of provision.When the Toolkit was published it was noted by IPSEA that the language in section 7 (which deals with writing statements) was not the same as the Code and reflected the position in the draft Code. A legal challenge was mounted against the Secretary of State by way of judicial review.Mr Justice Newman heard the application for permission on 26 March 2002 (reported as R (ota) IPSEA Ltd v S of S Education and Skills [2003] ELR 393).

IPSEA appealed that decision and the Court of Appeal gave judgment on 20 January 2003. In the judgment Lady Justice Hale said:

“If Parliament had meant specification to mean numerical quantification no doubt it would have said so…. However, the statement clearly has to spell out the provision appropriate to meet the particular needs of, and objectives identified for, the individual child. It must be addressed to the needs of the child rather than to the needs of the system.” (Paragraph 14)“It follows that any flexibility built into the statement must be there to meet the needs of the child and not the needs of the system. But the needs of the child cannot be seen in a vacuum. They may fluctuate for a wide variety of reasons.” (Paragraph 15)“The Code requires precision as the general rule, but provides for flexibility where this will best meet the needs of the child…. It remains the case that vague statements which do not specify provision appropriate to the identified special needs of the child will not comply with the law.” At the same time the Court of Appeal heard the appeal in the case of E v Newham London Borough Council and the Special Educational Needs Tribunal [2003] ELR 86.In this case, the Tribunal decided that the pupil should attend a special school as proposed by the LEA rather than a mainstream Catholic primary school. As therapeutic input on a daily basis was integrated in the school day the Tribunal decided that it did not consider it to be appropriate to specify the number of hours of therapy per week and, in any event, there was no evidence before it as to what precise level of provision would be required. In the circumstances, the Tribunal concluded that the level required should be determined by the specialists concerned following an assessment once he arrived at the school.The Court of Appeal agreed. The judges who heard this case were the same three who heard the IPSEA case and they gave judgment on the same day. They regarded this case as being a good example of the flexibility mentioned above.

(c) Blanket policies

The DfES circulated to all Chief Education Officers a letter dated 31 July 2003 (ref LEA/0283/2003) concerning “blanket policies in specifying and quantifying provision in children’s statements of special educational needs”. The document can be found at www.teachernet.gov.uk/LEAmailing

It appears that there have been a number of complaints that some authorities are operating, or planning to operate blanket policies of never quantifying SEN provision in statements.

As indicated above, many cases appear to relate to the delegation of funding. Some authorities have or are intending to specify the Part 3 provision by reference to a particular band of funding from their local system of calculating funding or a sum of money. An example would be “the school will receive Band 3 funding to make the appropriate provision”. Other authorities have decided to leave it to the school in terms of options. For example, allocating a sum of money but stating that it is equal to a particular number of hours of support from a support assistant or a pro-rata amount for a Support Teacher (my experience is that one hour of teacher time equals two hours of LSA time) or some equipment. In these cases there is no attempt to specify the provision to meet an individual’s needs.

The letter to the LEAs makes it clear that blanket policies are not permitted. Taken with the Court of Appeal’s decision in the IPSEA case it is probable that the arguments are now over. The principle should be clear: flexibility is only permissible if it is to meet the needs of an individual pupil.

E v Flintshire CC and SENT [2002] ELR 378

It may be bureaucratic to set out every detail of the provision as long as it was adequately specified and well understood by everybody. In this case Part 3 provided for one hour of specialist support from the LEA’s learning support service with the teacher to be appropriately qualified for such support work, the input was to be a structured apprenticeship and there was to be a variety of other specified support and learning methodologies.

W and another v Bedfordshire County Council, Lawtel, 12 March 2004

Where a draft statement of SEN referred to a “package of care” that package had to be specified an it was insufficient to state merely that such needs would be provided by an authority’s social services department.

(d) What should parents be expected to do?

DM and KC v Essex County Council and SENDIST [2003] ELR 419

Parents are not required to make special educational provision for their own child and so the Essex ‘Good Beginnings’ programme was unlawful. This programme is an alternative to the Lovaas programme and funded 10 hours a week of professional input, expecting the child’s parents to carry on the input outside the 10 hours. There is nothing to stop the parents willingly providing special educational provision but they cannot be compelled to do so.

R (ota KW) v SENDIST and Rochdale Metropolitan Borough Council, Lawtel, 22 July 2003

A tribunal’s decision to place a disabled child in a day school with professional support out of school hours did not impose on the child’s parents an obligation to meet part or all of the LEA’s statutory duty to provide for her special educational provision.

The questions to be asked in these cases are:

does the statement either directly or indirectly allow the LEA to escape its statutory duty?

When the contribution the parents were to make has been identified, was this, in law, special educational provision? That is, whether it directly related to the child’s learning difficulties?

Once the statement sets out the special educational provision the child should receive, the local authority has an absolute duty to provide it (s324(5)(a)(i) EA). If, for example, speech and language therapy is written into Part 3, it is the duty of the authority to provide it, even if in practice the health service provides it. If, for whatever reason, the health authority does not or cannot provide it, the local authority is not absolved of its obligations.

Can the school provide the special educational provision set out in the statement? This is often the determining factor between the different schools proposed for Part 4.

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One member of ASDf discovered recently that although holiday insurance covers their entire family, it would not cover them for anything that happened as a result of their child’s Autism.

This is because Autism is a “pre-existing medical condition,” and needs to be specifically covered in any holiday or travel insurance policy.

There used to be a selection of insurers that provided this cover on the website http://www.youreable.com/ However, it has now been deleted.

When it was there, it listed:
Aktivcard
http://www.snowcard.co.uk/

Chartwell Insurance of Edgware 020 8958 0900

Club Direct 01243 817766
http://www.clubdirect.com

Direct Travel 01903 812345

Directline
http://uk.directline.com/dl/directline.jsp

Go 0870 152 5840
http://www.gotravelinsurance.co.uk

Preferential 0870 600 7755
http://www.preferential.co.uk

http://www.fogginsure.co.uk/gag/insurance.htm

http://www.quotetravelinsurance.com/

Tesco 0845 300 8800
http://tesco.com

Please note: We have not used any of these insurers, or even checked if they still offer insurance with extra cover for people with disabilities, so this list is not a recommendation in any way.

www.youreable.com also recommends Medscan, tel: 0800 181 532
This facility calculates whether extra insurance is required for a particular medical condition, and how much that extra cover will cost.

In the future we hope to add to this page some of the things that parents need to think about when booking holidays and buying insurance for them.

Here are a few examples of caselaw relating to statements.

1. L v Clarke and Somerset County Council 1997 where the judge said that

“in very many cases it will not be possible to fulfil the requirement to specify the special educational provision considered appropriate to meet the child’s needs, including specification of staffing arrangements and curriculum, unless hours per week are set out.”

2. The courts have also said that vague Statements that only describe provision in terms of a band or cash figure, or position on a matrix are unlawful. This LEA practice would not be enough to satisfy the requirement to specify provision in part 3 of a Statement. The judge in the case R vs. Cumbria County Council ex parte P 1994 said that the appeal process would be impossible to operate if the parent did not know the nature of the provision that the authority intended to make.

3. In the case of C vs. Special Educational Needs Tribunal and London Borough of Greenwich (1999)
ELR 5 the judge determined that LEA’s should not delegate their duty to someone else.

4. R vs. The Secretary of State for Education and Science, ex parte E (1992) 1 ELR 377, concerns the requirement for the statement to include all of a child’s special educational needs, and the provision to meet those needs. Ex parte E, which says that a need in part 2 of a statement must have a corresponding provision in part 3.

5. Somerset County Council judgement which says the statement must leave no room for doubt as to what has been decided is necessary in the individual case, and hours per week of provision should be set out.

In addition, there is the speech by Minister Baroness Ashton speaking about the wording of the new Code of Practice in the House of Lords She said,

“We have said that we would always wish to see specification take place. I underline the word “always”. She went on to say that “The provision must be specific as to what is provided and it must be quantified in most circumstance…. We believe that there is a need to have a little flexibility. But I put it on record that that does not mean that LEA’s should do anything other than normally quantify.”

There are also “four historic court cases” on the IPSEA website

In some areas, Social Services will only accept a referral if the client has an IQ of 70 or less. This is one of those developments that many SS employees assume is supported by the law, but isn’t.

CarerQuie has researched this information for us:

“There is no eligibilty criteria in childrens’ services.

Under section 17 (10) of the 1989 Childrens’ Act,the only criteria for a ‘child in need’ is that the child IS DISABLED.If they refuse on the grounds that they don’t meet the criteria,point out that the law states the only criteria for initial assessment is that the child is disabled and that you expect them to carry out their statutory duty and complete the initial asessment within 7 WORKING DAYS (as the legislation requires).

Under the same section,if a core assessment is then carried out,it should be completed within 35 working days.

Eligibilty criteria does exist for adult services,though.“

For adult services, it may be worth pursuing the argument that IQ doesn’t refer to ‘useful intelligence.’

In its advice to parents applying for the Disability Living Allowance, the National Autistic Society says,

“People with autism may do well in abstract intelligence tests but sometimes cannot apply their intelligence in a useful way in the real world. An IQ test can give a misleading impression of ‘useful intelligence‘.

To support your claim for ’severe mental impairment’ due to problems with ‘useful intelligence’, you could mention that:

• your child’s condition is on the autistic spectrum (ie the range of disability levels associated with autism)
• autism is believed to be caused by brain damage or arrested brain development
• your child cannot make a sound and safe judgement, and then act on it, because of poor communication and social skills, together with obsessional behaviour and clumsiness (if relevant).

Give examples, such as:

• not understanding that emergency vehicles can travel on both sides of the road
• lack of attention caused by obsessions (eg reading car number plates without paying attention to traffic)
• phobias (eg of dogs or crowds)
• abnormal responses to sensations (eg difficulty judging distances and speed of cars or responding to loud noises by covering the ears and refusing to walk on).”

These arguments almost certainly apply to social services; they are accepted as valid by the DWP.
This is on a slightly different aspect of the topic, but:

In 2002, Lord Justice Simon brown ruled in an appeal against a DLA decision,

“I conclude that whilst in every case the claimant’s IQ as conventionally tested is likely to be the essential starting point for considering the impairment of intelligence, and whilst it is perfectly reasonable to take an IQ of 55 or less as the prima facie touchstone of severe impairment, that test and that score will not invariably prove decisive. Rather it should be recognised that an IQ result may give a misleading impression of the claimant’s useful intelligence and that in some cases at least an impairment of social functioning will shade into an impairment of intelligence. Tribunals and Commissioners will accordingly need to admit and consider evidence other than a mere IQ score.“

When the Social Security Commissioner commented on that ruling in 2003, he referred to Uta Frith (”Autism - Explaining the Enigma” 1989)

“There is a real difference between “test intelligence” and “world intelligence”. IQ tests are purposely constructed so as to be as independent of social context as possible. Some people have difficulty in solving problems in tests for their own sake outside a real-life context; they, therefore, score badly in IQ tests. Autistics, however, at least in certain tests, score unusually highly just because they are being tested outside the real-life context. Their success in IQ tests, in short, is not a true indication of what one may call their useful intelligence and it is surely the impairment of the claimant’s useful intelligence to which the regulation is directed.“

Granted, this ruling does not apply to social services criteria - but the principle behind it is sound and, in my opinion, transferrable.

“The DRC can give advice on the Disability Discrimination Act (DDA) 1995.
This issue is not within the scope of the DDA as it involves Local Authority Social Services carrying out their public function.
This means it is not a service that is available to members of the general public.“

Which means that government agencies are exempt from the Disability Discrimination Act when delivering public services.

It goes on to say,

“Social Services will have duties under the Disability Equality Duty which comes into force on the 4th December 2006.
Under this they will need to take into consideration the needs of disabled people when carrying out their function.“

So, after a long, hard fight you finally get your claim for DLA awarded. Apart from a celebratory bottle of wine and some drunken contemplation of how to spend the, now considerable, back payment, what do you do?

Ever heard of the Special Payment Scheme?

Probably not, as this is one of the best kept secrets in DWP – the ability to request a compensation payment where maladministration has led to financial hardship or inconvenience.

It is not part of your claim for benefit and you cannot lose out because of requesting one – it costs nothing to request, is dealt with by a separate unit not responsible for your claim, and does not affect your level of entitlement. If everyone requested one of these, the Department would have to buck up its ideas (and employ more staff, as it takes half a day just to prepare a single file,) but very few people know of its existence.

In short – there is no reason not to ask for one if you think you fit the criteria, as the worst they can do is say no. You can even request one where you have been turned down for benefits and have lost your appeal – if the conduct of officers during your claim fits the criteria.

Maladministration is generally regarded as bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude and arbitrariness. By now, you’re probably thinking this is a pretty good description of the people who dealt with you.

A payment can be awarded where maladministration has caused any of the following:

Actual financial loss – keep your receipts people; if they mess up, you can claim it back – stamps, phone bills, replacement documents, travel costs, bank charges, etc.

Delay in payment – only where the amount of benefits is over £100 in arrears. A delay is generally calculated at standard interest rates (Average Retail Shares and Deposits rate) or at compound interest rates where it has been a long period of delay. Payment of less than £10 will be discounted.

Consolatory Payments – for gross inconvenience resulting from persistent error, gross embarrassment, humiliation or unnecessary personal intrusion and finally severe distress which has significantly impacted on a person’s mental or physical health.

How to claim:
Write a letter to the Customer Service / Complaints Department of the office that dealt with your claim, clearly heading up the letter “Special Payment Request”. Quote the reference number, and clearly state that you “would like to request a Special Payment on the following grounds:”

• Logically and rationally, give an account of everything that’s happened on your claim:
• Detail every piece of bad advice,
• Every failure to take into account perfectly obvious circumstances (such as the tribunal awarding you it without hesitation after your case was disallowed for no good reason,)
• Every missed call-back and every unanswered letter,
• Every contradictory answer,
• If there’s been a delay in your appeal being written by the Department (they have 90 days in which they’re supposed to write it,)
• If there’s been a delay in responding to your letters (they have 7 days for a complaint and 10 days for an enquiry.)
• Every time an operator has been shirty or rude with you,
• How hard the DLA form was to complete in the first place and how most of the questions on the standardised form are not suitably tailored to mental disabilities.

Now detail how this has affected you:

• The stress levels,
• The amount of time you took completing the form, writing to them, phoning them and worrying,
• The exact length of delay in getting a payment, from the form going in to the payment hitting your bank account,
• The impact on your family life etc.
• Any time off work you’ve needed because of it,
• Any extra expenses that were incurred due to the extended claim process.

Add copies of any receipts, phone bills or actual charges you want recouped, and send it off having obtained a receipt of postage (recorded delivery not needed, as that’s an expense that probably won’t be refunded – get a receipt of posting (free), then phone the office two or three days later to check they’ve received it.)

Now wait up to a month or so for an answer – special payments go to a centralised unit and take weeks to be resolved.

Basically, a special payment claim is an opportunity to get something back for the blood, sweat and tears involved in a DLA claim, and it’s something of a “fire and forget weapon” in that you can dash off a 15 minute letter to claim it, then put it out of your mind and then treat anything that comes out of it as a bonus that you didn’t expect. In this case, the money is for you and the trouble you’ve experienced, not for the child, so claim it and crack open a bottle with it; if you’ve gone through that legal and bureaucratic nightmare and come out with your sanity intact, you deserve it

Every parent of a child with and autistic spectrum disorder needs to get themselves a copy of the Special Educational Needs Code of Practice. It’s published by the Department for Education and Skills and should be the blueprint for every LEA and school for how they manage children with SEN.

It sets down principles for how they should liaise with parents, the different stages of provision and how to manage the statementing process.

For parents, this is your first tactic to use in getting your school or LEA to pay some attention to you. Quoting the Code gets results.

You can download it from here or get a printed copy for free by phoning 0845 6022260 and asking for document ref: DfES/581/2001.

My advice would be to get the printed version. It’s going to get a lot of use, so you need it to be robustly bound. Makes a good noise when you plonk it on the table at meetings with the LEA as well.

As a parent of an Autistic child, I always dreaded it when friends asked us to go to LegoLand. Making excuses was all the more harder as we only live 5 minutes away.

I thought that even the idea of a queue, would be enough to send my son into a total meltdown. But we decided to give it a go.

One of the good things is if you have been awarded DLA (Disability Living Allowence) or just a diagnosis letter, you take proof with you and you get an ‘exit pass’. This means that you get to jump the queues, and go in through the exits. This made things so great, no queues and no waiting means no meltdowns for us.

If I had known about the exit pass I really would have gone sooner with my son.

Also, one adult will be designated as the carer for the child and gets free entry.

LegoLand is great for all ages and our 3 year old NT daughter had just as much fun as well. There are lots of different types of foods available, so everyone will find something that they like. (Although it can be pricey)

One thing to note, if you decide to upgrade your ticket to a year pass, remember there is no queue jumping for this, your exit pass doesn’t work here! You’ll need to fill in a form for each year pass you need, and it’s a long queue as they put the details into a computer & take your picture. My advise is to grab the application forms as you enter the park and fill them in as you go around, and don’t leave it until the last minute to join the queue.