SEND Legal query answers

IPSEA says:

• a maintained school, mainstream or special;
• an Academy (which includes free schools);
• an institution within the further education sector in England (i.e. an FE college)
• a non-maintained special school;
• an independent school approved under s41 of the Children and Families Act 2014, in accordance with paragraphs 9.78 to 9.94 of this chapter.

Parent Question:

I am trying to look for parent advocacy lawyers for my autistic son. I did see it on the website a while ago, cannot seem to find it.

IPSEA Answers:

If you want independent advice and support – including a parent advocate - in challenging your child’s school or LA then you can contact us at IPSEA (www.ipsea.org.uk). Your case will be supported by one of our highly trained volunteer advisors. All our services are free to parents.

If you want to instruct an advocate to help support you in bringing a case to challenge a decision made by your LA at the SEND Tribunal then there are a number available. You will need to search “SEN education advocate”. There are many offering their services; all will expect to be paid for the work they do on your behalf and whilst some have a vast range of experience and training in the law such advocates are not necessarily lawyers. You need to be careful in your choices as some are brilliant and others not good at all.

If you want to instruct a lawyer to take on your case then you need to search for an SEN specialist lawyer – not just an education lawyer. Again they will need to be paid (more than an SEN advocate) and you need to make sure they are specialists in SEN.

What you choose will depend on what your budget is and what you need to achieve.

I recall reading somewhere (Tribunal rules?) that parents can interview local authority professionals in order to gather evidence towards a tribunal. Is this correct, and if so can you reference the law?

Also, would it be reasonable to, say, write directly to the professionals asking them to quantify/specify their reports for statutory assessment or to comment on the provision (or lack of) as set out in an EHCP eg do you think x hours of y provision per week would be appropriate?

Further, if a professional refuses to quantify / specify / comment as explicitly set out in the SEND Code of Practice, would it be appropriate to report that person to their professional body?

IPSEA Answers

We are not aware of anything which specifically refers to parents being entitled to question Local Authority officers in the lead up to a Tribunal but the

The Tribunal Procedure (First-Tier Tribunal) (Health, Education And Social Care Chamber) Rules 2008 (as amended) contain a number of relevant and helpful provisions.

• HESC Rule 5(3)(d) says the Tribunal can permit or require a party or another person to provide documents, information or submissions to the Tribunal or a party
• HESC Rule 16(1)(b) - the Tribunal can order any person to answer any question or produce any document in that person’s possession or control which relate to any issue in the proceedings
• HESC Rule 15(1) - the Tribunal can give directions as to:

1. a) issues on which it requires evidence or submissions;
2. b) the nature of the evidence/submissions;
3. c) the number of witnesses for a party;
4. d) the manner in which the evidence is to be given.

There is also some useful case law on the extent to which LAs should submit evidence which might not be helpful to its case: JF, R (on the application of) v London Borough of Croydon & Anor [2006] EWHC 2368 (Admin) (31 August 2006):

 “Although the proceedings are in part adversarial because the Authority will be responding to the parents' appeal, the role of an education authority as a public body at such a hearing is to assist the Tribunal by making all relevant information available. Its role is not to provide only so much information as will assist its own case. At the hearing, the Local Education Authority should be placing all of its cards on the table, including those which might assist the parents' case.”

If you feel the LA is not sharing or obtaining obtain information that would help to resolve the dispute it may appropriate to ask that the Tribunal uses its powers of case management to hold a telephone case management hearing. Power to hold a case management hearing is found at: HESC Rule 5 (3) (f). Case management is intended to clarify the issues involved in the case and the evidence needed to ensure that the Tribunal hearing the case has all the information needed to reach a fair and just decision.

Requests for a direction or for case management should be made by submitting a Request for Changes Form: http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=3044

Before resorting to any of the above it would certainly be appropriate to write to the professionals involved and ask them to specify and quantify provision. Evidence that you have done this, and that you have not received a satisfactory response, should help when it comes to asking for a direction or for case management.

Parent Question:

I am helping a family go through the appeal statementing process. We are collecting new evidence and collating existing. The parents are considering employing a lawyer who has so far effectively dismissed all the new assessments we have gained and wants the family to have new ones from people that he recommends. This will be very expensive and I don't think that the family will be entitled to Legal Aid. I am concerned that they will be spending money unnecessarily but want them to have the best chance they can. My gut feeling is that they don't need him but what if I am wrong? I am not in this to make a fortune. I charge a nominal rate and just want to help families who need it.

IPSEA Answers:

Be very wary of people that want to dismiss existing reports out of hand and recommend that everything must be done anew – especially if it is going to cost a fortune and they are only recommending one professional to go to rather than sign posting parents to a few so they can chose.

Get them to explain clearly why they think a new report is necessary in writing and then ask the professional that originally wrote the report to look at the reasoning and comment. Professional assessment - on which a report is based - cannot be repeated too often (usually not more than once in a six month period) and so there is a timing issue. Most parents that come to IPSEA for support through the Tribunal process cannot afford to pay for independent reports. It may well be a case of getting the original professionals instructed by the LA to do them properly – i.e. specify not only the child or young person’s special educational needs but the special educational provision that they individually need to have put in place to support them as a result of those needs.

All professionals – educational psychologists, speech and language therapists, occupational therapists – will be members of a professional body/association. As part of being a member of that body they will have a duty towards the client (i.e. the child) that should always over-ride the fact they are employed by an LA. If they ignore this they run the risk of being struck off as professionals!

Parent Question:

I am a psychologist working in both NHS and private practice for many years. I belong to a very sound professional group (Ass of Child Psychologists in Private Practice- AChiPP) and we had feedback from a member who had attended a JCQ training session where she learned that the schools will be encouraged NOT to accept independent reports commissioned by parents. We are all very concerned that this is very undemocratic for parents, limiting their choices and leverage and that it also violates the principles of the new SEN legislation that empowers parents. I was wondering what your thoughts on this matter are? Many thanks in anticipation.

IPSEA answers.

Any report from a professional – whether they work for an LA, the health service or independently – has the same validity. Under professional codes of conduct my understanding is that an educational psychologist is pledging that they will do their job to assess a child’s needs, identify provision and make recommendations based on the individual child rather than any resources available to their employer or client. What is most important is: the amount of time the educational psychologist has spent observing and assessing the child; how often has this happened – e.g. a number of times over a period of years; and their use of their own expertise. Any LA that tried as a general rule to encourage the disregarding of independent reports –must therefore challengeable legally. All educational psychologists should be solely focused on the child they are working with, not policy or other political issues around them.

In addition, SEND Regulations 2014 reg.6(1) is clear that any professional that the LA seeks advice and information from during statutory assessment is expected to report on a child or young person’s needs, the special educational provision to meet those needs and the outcomes that can be expect to be the result. Any report from an educational psychologist that fails to this must be referred back to them for additional advice.

Further, the same regulation requires the LA to seek “advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from”. The LA cannot then ignore this advice, but must (again under the same regulation) supply all other professionals involved with “any evidence submitted by or at the request of the child’s parent or the young person”. An LA must specify in a final EHC plan the special educational provision that needs to be put in place to support the child’s special educational needs. If a professional report fails to specify provision, i.e. make clear who is expected to do what, how often, for how long then additional advice must be sort. To not do so would fail the child.

Parent asks:

Our local authority has just rejected an application for an EHCP assessment for our daughter, who is in year 5 and has diagnoses of ASD and ADHD. She is coping in primary school and is working at expected levels (though things are getting more challenging) but her primary, who handled the application, feel she would not cope in a mainstream secondary environment.

IPSEA Answers:

Before addressing your specific question, we should point out that your letter from the local authority (LA) is required by law to advise you of a free independent mediation service and also your right to appeal to the SEND First Tier Tribunal. The time limit for lodging an appeal is two months from the date of the LA’s decision letter or one month from the date of the mediation certificate, whichever is the later.

When considering how to proceed, it is worthwhile taking the time to go back to the applicable law. The legal test is found at section 36 (8) of the Children and Families Act 2014:

“(8) The local authority must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted under subsection (7), the authority is of the opinion that—

(a) the child or young person has or may have special educational needs, and

(b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.”

(emphasis added)

Given your daughter has a diagnosis of both ASD and ADHD it is most likely that the first limb of the legal test ((a) above) is satisfied (s20(2) CFA 2014 provides the definition of special educational needs). Thus focus for you and the school is demonstrating that (b) above is also satisfied.

This initial question for the LA is a “provisional and predictive” one (Cambridgeshire County Council v FL-J [2016] UKUT 0225 (AAC)). The LA will not have applied the law correctly if it asks itself “was special educational provision necessary” rather than “whether it may be necessary for special provision to be made in accordance with an EHC plan” (RB v Calderdale MBC (SEN) [2018] UKUT 390 (AAC)) (emphasis added).

Section 36(8)(b) is sometimes the more difficult aspect of the test but before going on to the question of how this may be established, remember that under the Act (s21(1) CFA 2014) special educational provision (“SEP”) is not just about education, but education or training – which is additional to or different from what is available in mainstream schools in England.

The CFA 2014 does not say why it may be necessary, recent case law has confirmed that this question is very much one of judgment in each individual case, and reported decisions or examples from the SEND Code of Practice: 0-25 years (Jan 2015) cannot replace a considered decision about whether a plan may be necessary for an individual child.

Case law that is of particular relevance (note that cases concerning Statements, the predecessor to EHC Plans, are still good law) to your situation includes:

1. Buckinghamshire County Council v HW (SEN) [2013] UKUT 0470 (AAC)

In this case, Judge Jacobs agreed with the reasoning in the earlier case of NM v London Borough of Lambeth [2011] UKUT 499 (AAC) and confirmed that it is the statutory test which must be applied, i.e. the test of whether it might be necessary for there to be a statement and explained the term thus:

“Necessary sets a standard that is somewhere between indispensable and useful or reasonable. I am not going to define it more precisely. It is a word in general usage and it is that usage that the SEND Tribunal must apply.”

 The UT also considered whether or not the First-tier Tribunal had been right to look to the future in this case as the child was about to transfer from primary to secondary. The UT decided that Wilkin v Goldthorpe and Coventry City Council [1998] ELR 345 was correct, albeit that the Wilkin case related to a child who was already statemented (rather than being assessed for one), because an analysis of the language alone showed that the same approach was appropriate.

“The statutory test inevitably directs attention to something that will happen after the assessment has been made. The assessment is made for a purpose. That purpose involves identifying provision necessary to meet a child’s needs. The assessment cannot realistically limit itself to the immediate present. When there will be a change of circumstances in the near future, it is impossible to ignore that future”.

So in answer to your specific question, your daughter’s future needs in a different school environment can and arguably should be taken into consideration as she approaches phase transfer from a primary to a secondary setting. However, this will clearly be a more persuasive argument when your daughter is in year 6.

2. MC v Somerset County Council (SEN) [2015] UKUT 0461 (AAC)

In this case, Judge Ward accepted that it might be ‘necessary’ for there to be an assessment in order to: “open the door to the issue of a statement and with it the enforceability of rights via s.324(5)”.

You mention that your daughter’s school has concerns about her coping in a mainstream secondary environment. Evidence to support this contention would be very useful. For example, if you have secondary school settings in mind then it would be an idea to make contact with the SENCO at each school to discuss your daughter’s special educational needs, the support she currently requires and the concerns envisaged when she transfers. If it is a specialist setting, then an EHC Plan may be a pre-requisite for admissions. Or it may be that within a mainstream secondary, in order to guarantee the level of support envisaged, the school would expect an EHC Plan to be in place.

If you are able to evidence that it MAY BE NECESSARY for SEP to be set out in accordance with an EHC Plan, that is all that is required at this stage to satisfy s36(8)(b) and require the LA to undertake the EHC needs assessment.

Further information can be accessed for free on the IPSEA website www.ipsea.org.uk, in particular, you might find the IPSEA Refusal to Assess Pack helpful:

https://www.ipsea.org.uk/Handlers/Download.ashx?IDMF=b006465c-2b25-4e28-839b-6417bfbb2da0

An education professional asks:

A number of schools use my services as I a qualified Specialist teacher. I am also a Developmental Psychologist with specialism in ASD, ADHD and DCD.

Just recently I wrote a report to help a school apply for an EHC. However, the LA wrote back and said that because I was not an Education Psychologist my report was not credible. I understand that an EP has to be part of the EHC process to assess need once it has been decided to go ahead with the process, however the EPs locally are out of capacity and so cannot do other assessments such as those needed to apply for EHCs.

Also, the schools are being told that because they are choosing to use independent professionals and not buy into their service they will be at the bottom of the list. Furthermore, on their Local Offer it states that Specialist teachers can write reports for application of EHC and top up funding.

Can I ask, with [a wide range of relevant qualifications], should the LA legally be taking my reports into account when applying i.e the first stage of an EHC or top up funding or can they legally pick and choose?

IPSEA answers:

When assessing the need for an EHC assessment, the LA must seek advice and information from various people, including an Educational Psychologist (Regulation 6(3) of the SEN regulations. Therefore it is not acceptable for the Local Authority to not obtain the EPs advice even if they are busy.  A qualified Specialist teacher is entitled to write an expert report and this may be submitted either because LA accepted it was appropriate and sought it: Reg 6(1)(f) or because a parent reasonably requested it: Reg 6(1)(h).

It is worth noting that the school should have consideration of all available reports at assessment stage - The Code of Practice at 6.45 requires the school in identifying a child who requires support to consider a number of factors to include advice from external support services. 6.61 details some of these types of support, but would include private reports obtained from professionals.

Thereafter if a request for a plan is made, the LA would need to then consider all advice and information available. Under 9,4 the LA should consider with professionals what advice they can contribute to ensure the assessment covers all the relevant education, health and care needs of the child or young person, as well as the views, wishes and feelings of the parent. If the parent views the privately obtained report as crucial then it would need to be considered by the LA.

The issue however is recourse if the LA fails to consider the privately obtained report. Whilst the parent (or YP) could argue it needs to be considered, the outcome may lead to a refusal to issue a plan, which would be an appealable decision and the Tribunal would thereafter be under a duty to consider all the documents placed before them.

Parent Asks:

Our LA has agreed to assess for EHCP but since COVID-19, have told us that the Educational Psychologist Service has reviewed our evidence and feel that there is enough evidence for them to support the EHCP without their input and are happy to write to LA to say so. The LA is asking if we would like to proceed without EP Assessment. Please can you tell me if the LA have a legal obligation to provide us with an EP assessment?

IPSEA Answers:

The deadlines which previously applied to LAs when considering EHC needs assessment requests have been temporarily relaxed as a result of the  Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘Amendment Regulations’), which amend the timescales in the SEN and Disability Regulations 2014.. Where it is not reasonably practicable or it is impractical for an LA or other body to meet certain deadlines “for a reason relating to the incidence or transmission of coronavirus (COVID-19)”, they must instead complete that step as soon as it is practicable for them to do so.

However, as the guidance on EHC needs assessments and plans during the COVID-19 crisis makes clear, the modification is to the timing of the EHC needs assessment process, not the process itself. When an LA carries out an EHC needs assessment they must obtain all of the information set out in Regulation 6(1) of the Special Educational Needs and Disability Regulations 2014 (the “SEN Regs”).This includes “psychological advice and information from an educational psychologist” (regulation 6(1)(d). The advice provided must be clear, accessible and specific (see paragraph 9.51 of the SEN and Disability Code of Practice). In particular, it should address the child or young person’s needs, the special educational provision required to meet those needs, and the outcomes which this provision will aim to achieve.

It may be that the Educational Psychologist Service is able to provide this information without meeting your child, having reviewed your evidence, in which case you may decide to accept the LA’s suggestion. You should consider, however, that when the EHC needs assessment has been completed, the LA will decide whether it is necessary for provision to be made in accordance with an EHC plan in the light of the information obtained. There is a risk that if insufficient information is obtained as part of the EHC needs assessment the LA will be more likely to conclude that an EHC plan is not required.

Parent Asks:

I had to deregister my 13-year-old daughter last September as she wasn't managing in school. My daughter is autistic and struggles with anxiety. Am I able to request an EHC needs assessment even though she isn't on roll?

IPSEA Answers:

The legal test for an EHC needs assessment is set out in s36(8) of the Children and Families Act 2014. The LA must carry out an EHC needs assessment if the child:

1. Has or may have special educational needs; and
2. May require special educational provision to be made via an EHC plan

This is the only legal test that the LA can use to make a decision and, as you can see, it sets a relatively low bar. There is no requirement for a child to be in a school placement at all and an assessment can certainly be carried out outside of a placement.

There is a model letter on the IPSEA website which you can use as a template to apply to your LA: Making a request for an EHC needs assessment: Model letter 1 | (IPSEA) Independent Provider of Special Education Advice

There is also information about the process of an assessment which you may find helpful: EHC needs assessments | (IPSEA) Independent Provider of Special Education Advice

Parent asks:

Following the SEND Tribunal, the LA have been ordered to do the needs assessment. However,  the LA state that the EHC needs assessment will be without Occupational Therapy (OT), as the waiting time is outside of the statutory needs assessment time. They say they will add it in later and are also say following assessment my child may not be provided with an EHC plan.

Can I request and insist the LA obtain the OT assessment by other means (external agency) so it is included in time for the EHC plan panel decision?

IPSEA Answers:

The SEN and Disability Regulations 2014 state that the local authority (LA) must obtain information and advice from such persons as you reasonably request (Regulation 6(1)(h)): and it may well be reasonable for you to ask that information and advice is obtained from an occupational therapist e.g. where a child has or may have sensory processing difficulties or where they have difficulties relating to motor coordination.  The LA must also seek information and advice from any person that it thinks is appropriate (Regulation 6(1)(f)).

From what you’ve written, It’s not clear that your LA is refusing to obtain information and advice from an occupational therapist because it’s not appropriate or it’s unreasonable for you to ask – but rather because there’s a waiting list.

This problem is solved (in theory) by Regulation 8 which says that: Where a local authority requests the co-operation of a body in securing an EHC needs assessment in accordance with section 31 of the Act, that body must comply with such a request within 6 weeks of the date on which they receive it.  It may be that both your LA and the occupational therapy service need to be reminded of this duty.

If information and advice from an occupational therapist is sought by the LA and the body in question won’t comply (or won’t comply within the deadline) then it would seem appropriate for the LA to seek such information and advice from outside the NHS/CCG. Certainly this was the view of the LGO in upholding a complaint recently:

http://www.lgo.org.uk/decisions/education/special-educational-needs/15-011-838

It’s always the case that just because the LA has carried out an EHC needs assessment doesn’t necessarily mean an EHC plan will be issued.  Once all the information and advice is gathered, the LA has to make a decision about whether or not a plan is necessary (s.37 Children and Families Act 2014).  If it refuses, then you will have a right of appeal if you disagree with the decision.

It’s worth making a note of the deadlines that apply where the Tribunal has ordered that the LA carry out an EHC needs assessment following an appeal.  You must be notified within 10 weeks of the Tribunal’s Order if the LA decides it’s not necessary to issue an EHC plan and you must receive a final EHC plan, if they decide it necessary, within 14 weeks of the Tribunal’s Order (see Regulation 44(2)(b)).

My Grandson, who's 22 has Autism and learning disabilities. He went to a special school until the age of 18 and had a statement.

He's had many problems since then to achieve professional support to get cohesive personal skills, continued basic education and vocational training to fit him for the adult world. 
As a family we put together a programme of voluntary work at a farm, visits to the gym, Mencap social activities etc.

However over the last two years, he has attended the local FE college and passed Level 1 in animal care. They say they cannot offer him progression to Level 2. They suggested an internship at a hotel chain. Although he wants to work with animals he agreed to do two trial sessions, which he enjoyed.

The college now say that the internship is no longer possible but are giving no reasons. They say they are not able to offer any provision to him at all because of funding constraints. My grandson still believes that he will return to college in September or work at the hotel chain because that is what the college led him to believe. He has just had a major upset in his personal life so we feel he could not cope with these disappointments at the moment.
We don't know what can be done to determine options for him.

Having just discovered the SEND guidance we are wondering if an EHC plan could solve some of these difficulties.
 Do you think this is the case?
 Would this succeed four years after leaving his special school?
Can you advise.

Marguerite answers

I would suggest you request an EHC assessment if you believe your son’s learning difficulty or disability is holding him back at college, and you or your son believes that the college is not able to provide the help and support which is needed.

The EHC needs assessment is the process for the Local Authority(LA) to establish your son’s needs and the provision he will require. The whole process of EHC needs assessment and EHC plan development, from the point when an assessment is requested (or a child or young person is brought to the local authority’s attention) until the final EHC plan is issued, must take no more than 20 weeks.

IPSEA have a produced a model letter, to request the EHC assessment. Ensure you ask in writing and keep a copy of your letter. Make a note of the six-week deadline for the LA’s reply.

Where a student has a learning difficulty or disability that calls for special educational provision, the college must use its best endeavours to put appropriate support in place. The effectiveness of the support and its impact on your son’s progress should be reviewed regularly, taking into account his progress and any changes to his ambitions and aspirations, which may lead to changes in the type and level of support. This should include accurate information to evidence the SEN support that has been provided over his time in college and its effectiveness.

Colleges are not expected to meet the full costs of more expensive support from their core and additional funding in their main allocation. They are expected to provide additional support which costs up to a nationally prescribed threshold per student per year.  Your LA should provide additional top-up funding where the cost of the special educational provision required to meet the needs of an individual young person exceeds the nationally prescribed threshold. This should reflect the cost of providing the additional support that is in excess of the nationally prescribed threshold.

Colleges are funded by the Education Funding Agency (EFA) for all 16-18-year-olds and for those aged 19-25 who have EHC plans, with support from your LA for students with high needs.

Your son has made progress, and it’s unfair to prevent him from progressing, and it’s damaging for his self-esteem and his trust if they have led him to believe he can return. Your story is all too familiar, and it’s the cohort I am most concerned about, for the reasons you have given.

Keep us posted on your developments.

Parent asks:

Our local Clinical Commissioning Group (CCG)  says they will not accept a private diagnosis of Autism Spectrum Disorder. Is this legal when NHS policy states private diagnosis is acceptable?  Does the parent or young person have a choice in this matter? What are our options if we do not have EHCP or do not intend to have one?

IPSEA Answers:

There is no basis in law for the local authority (LA) to reject a professional report simply because it was privately obtained.

As this is not a Tribunal situation, your remedy is through the LA’s complaints procedure. We would recommend writing to the LA and asking them to explain the reason or policy supporting their refusal to accept this report. Also, state that you intend to make a formal complaint as you do not believe they are entitled to refuse to accept a private diagnosis.

If they don’t back down, you can make a complaint through their normal procedures. If their response is unsatisfactory, you could take the complaint to the Local Government Ombudsman.

Parent asks:

We had a private speech and language and educational psychologist assessment in March this year. The LA have agreed to issue a draft EHC plan. We would like a specialist school named. The LA would want to reassess my son on both SALT and EP. (they already had a council EP assess him by skype in lockdown about one month ago).

If I refuse to let them reassess will it be detrimental? I just feel the reports are under six months old and new assessments are entirely unnecessary.

Ipsea answers:

During an EHC needs assessment, the LA does not have to seek new advice where that type of advice has previously been provided for any purpose – for example, if there already was a recent educational psychologist’s report. This exception will only apply if the person providing that advice, the LA and the child’s parent or the young person are all satisfied that the existing advice is sufficient.

However, from your question we assume that the LA has already carried out an EHC needs assessment following which it agreed to issue an EHC plan. Really, it should have obtained all of the reports it wanted as part of that assessment.

Seeking new reports now is likely to delay the process, which should take no more than 20 weeks in total.

You may wish to ask the professionals who prepared your independent reports whether there is any issue with carrying out two assessments so close together. You could also ask the LA why it chose not to carry out these reports as part of the EHC needs assessment.

If you believe the LA is likely to refuse to name your choice of school, it may be worth thinking ahead to a possible appeal to the SEND Tribunal. Whilst you are within your rights to refuse the proposed assessments, there is a risk that the Tribunal may see this as uncooperative.

Parent Asks:

6.99 of SEN code states that schools “are expected to provide additional support which costs up to a nationally prescribed threshold”. Does this mean that a school should be able to evidence spend of £6000 of notional funding on a specific child with SEN if that child’s needs warrant it? As the national budget is not ringfenced, I am being told that school can not spend £6000 on my son specifically even though they immediately agreed that he needed the support of EHCP ( we have applied once but been turned down due to lack of evidence and recent involvement from an outside assessor. The LA are saying that they will not assess without costed provision plan showing an annual spend of £6000, however, the school say that they can not spend this amount.

 ASK IPSEA Answers:

It is not uncommon for an LA to try to refuse to carry out an EHC needs assessment with reference to school funding. LAs receive money from central government to pay for the services they provide in their area. In the case of education funding, they then delegate money for special educational provision (SEP) to schools. For mainstream schools there are three elements of this funding:

(1) The AWPU – the age weighted pupil unit – this is the basic per pupil funding which schools receive for every child whether or not they have special educational needs (SEN);

(2) Additional support funding – this is an identified figure within the delegated budget which each school receives annually. It is provided by LAs for mainstream schools and the Education and Skills Funding Agency for academies and free schools. This element of funding is used to fund SEP for children on SEN Support and a proportion of funding for children with EHC plans. However, this amount is a notional one, not based on an assessment of current pupils' needs and the real cost of providing for them. While it theoretically equates to £6,000 per pupil with SEN, the actual amount of money available depends on what the school is already committed to spending;

(3) ‘Top up’ (or ‘high needs’) funding for individual pupils. This funding comes from the commissioning home LA, as and when required, and is based on the child’s assessed needs. It is usually, although not exclusively, used to fund support for children with Statements or EHC plans.

For a refusal to assess case, funding should not become the main focus of the dispute. The LA may say that before they will assess, a certain amount must first be spent by the school from their delegated funding on the particular child. This is a matter of LA policy, not law. LAs cannot delegate the legal duties they owe to children and young people with special educational needs. The LA will, as a matter of policy, expect the school to spend £6,000 per annum on a child with SEN from element 2 of their funding before the school can come back to the LA and ask for top up funding. However, this does not equate to an argument that just because this has not yet been spent or the provision for a particular child is going to cost less than the additional £6,000 a year that the LA should refuse to assess. As in the above situation, a school may agree that greater support is necessary but not have the funding to put that in place themselves.

The legal test that applies is found at section 36(8) of the Children and Families Act 2014. The Act says that an LA must identify and make an EHC needs assessment of those children and young people in their area who have or may have special educational needs and who may need an EHC plan. In assessing whether the child or young person may need an EHC plan, the LA will need to consider whether they can receive the support they require without an EHC plan. There is no requirement at all for a school to have spent a particular amount before the LA must carry out an EHC needs assessment.

When the LA decides not to carry out an EHC needs assessment they must inform you that you have a right of appeal to the First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”). Before bringing an appeal to the SEND Tribunal, you must consider mediation. This does not mean that mediation is compulsory, but it must be considered. The deadline for appealing is two months from the decision sent to you by the LA or one month from the mediation certificate, whichever is the later. For detailed information about appealing download IPSA’s Refusal to assess pack.

Parent Asks:

My 8-year-old son is currently looked after under Section 20 and in a residential facility including schooling. CAMHS identified ADHD and Autism needs to be monitored but they will not diagnose. My LA is looking at foster care as he cannot stay on Section 20 any longer. I want him home but cannot cope 24/7 so we agreed on midweek residential and home every weekend and holiday. Because there is no diagnosis, the LA won't fund the residential side of it. I feel that a second opinion would be beneficial to get the diagnosis we need so the LA would have to reconsider. How do I go about getting a second opinion before the court is approached for the care order?

IPSEA Answers:

If the LA hasn’t undertaken an EHC needs assessment, you can request that it does so by using IPSEA’s model letter.  The types of assessments undertaken are in Reg 6 of the SEND Regs and will include advice and information from a health care professional, educational psychologist as well as social care.  The advice and information sought should detail your son’s needs, the provision he requires as well as a range of outcomes for him for the future.

Following the EHC needs assessment, your son may need an EHC plan.  Part of this process should be to assess whether your son needs a residential placement for his educational and/or social needs.  If this is the case, then your LA should fund your son’s placement without the need for a diagnosis.

Your son may receive a diagnosis as part of his assessment.  If he doesn’t, see whether your LA has a ‘diagnostic pathway’ for autism/ADHD that may be published in its local offer.  The local offer should be available on your LA’s website.  It may also be worth speaking with your GP who may be able to help you/refer your son to a specialist.

If your son already has an EHC plan, you should look into the diagnostic pathway as described above. If you have already pursued this without success, we would recommend that you make a formal complaint addressed to both the LA (to the director of children’s services) and the Clinical Commissioning Group (to the designated medical officer) explaining how their failure to work together is leaving your son without adequate provision and potentially preventing him from being able to return to your care. Additionally, if the LA have named a particular school in the EHC plan and you are within time to appeal, you could appeal to the SEND Tribunal to try to get a residential placement named in his EHC plan.

Your local IASS team may be able to provide you with further information about the diagnostic process in your local area, and potentially provide support with a complaint or an appeal

Question:

A pupil has been in Year One of state maintained school for five weeks due to family relocation. The school was unaware of autism diagnosis until he arrived. Since arrival, school has assessed his needs and asked for specialist input, asked the LA to assess for EHCP, advertised for 1:1 full time LSA. Meanwhile he has 1:1 morning support and is collected just before lunch.

What should the mother do next? She has met with the headteacher who has advised what the school is doing. Should the school be doing more? Or should the LA be doing more? The EHCP was put in place within the first two weeks of arriving at the school. One specialist teacher has been in to offer advice but the school is still waiting for autism advisor to come (request was made a few weeks ago). Is this an illegal exclusion? Been part-time educated for five weeks.

IPSEA Answers:

This question is not straightforward as there are further questions that would need to be answered in order to advise properly. The LA ultimately has the legal duty to put the appropriate special educational provision in place so that the child can be in full-time education.

If school/LA were not made aware of the child’s potential SEN arising from his diagnosis before his arrival in the school then the question now is whether the approach being taken and the speed with which they are tackling the assessments of his needs and the provision to meet those needs is reasonable. You need to call IPSEA for specific advice.

Parent Asks:

When there are multiple reports from professionals in the same area, eg. SLT, what is the process that the LA should follow for determining what provision to include in the EHCP? The SEN CoP para 9.69 seems to indicate that the LA should explain why it is departing from any advice in Section K, but does this ever really happen?

How would a tribunal make the same judgements as to which provision to follow? On some panels, it isn't guaranteed that there would be a professional from the area (SLT) to even make some kind of evidence-based observations?

Is it entirely down to comparing the experience and expertise of the professional? Or are there other factors at play? eg. Would a LA SLT carry more weight because he/she would have already spent much more time with the child than an independent therapist?

Is there case law or guidance available that would give more clarity on how decisions are made?

IPSEA Answers:

There are many factors that can be taken into account when there are conflicting reports, although it is possible for two professionals to identify different needs and provision but still both be right. As an example, two SLTs could carry out different types of assessment and therefore come to different conclusions about the child’s needs but both still be correct. In those cases, the LA should include the identified needs and provision from both reports, rather than choosing one over the other.

However, if the two reports contradict each other, then a decision would need to be made over which report to follow. When assessing evidence, both the LA and the SEND Tribunal will be considering what weight to give to such conflicting evidence. Relevant issues will be: how often the professional has seen the child; the qualifications of the person; their experience with the particular type of SEN; and to what extent it is supported by other evidence.

The Tribunal can use its expertise to make a determination on provision when expert views contradict one another and can choose to order a level of provision in between that identified by the two competing experts. There is case law about this; see: Wiltshire CC v TM and SENDIST [2005] EWHC 2521 (Admin), [2006] ELR 56; T & A v London Borough of Wandsworth [2005] EWHC 1869; D v SENDIST [2005] EWHC 2722, [2006] ELR 370. Although there may not always be the relevant professionals attending the Tribunal hearing as witnesses to discuss the reports, the judge will always be joined by 1 or 2 specialist members who will have appropriate knowledge which will assist them in understanding the reports and making decisions

I was told I'd been sent a draft EHCP at the end of July which I'd not received. On 8 August, the day before we went abroad, I emailed asking for another copy and verified my address.

I did not receive a draft until 30 August. I'd already said that I'd like an extension on responding giving me two weeks from the schools returning so I could consult, but I've received this response:

"I can agree a further extension to 16th September but must make you aware that to do so would not be compliant with the Code of Practice; the summer holiday is not an exception to statutory timescales unless we are seeking specific advice from the school, e.g. awaiting a response to a consultation. If this is acceptable to you, I will await your response on or before 16th Sept. "

I can find nothing about asking for an extension not being compliant with the Code of Practice. Are you aware of anything? I feel it's only fair to be able to discuss the draft with my son's current school and transition options for next year - two weeks is such little time anyway.

Helen answers

I think that the problem here is that the local authority has used up all the time in the statutory timescales for issuing a final EHCP by not getting the draft EHCP to you when they should have done.

When they talk about extending your time to comment not being compliant with the CoP, they are thinking about the legislation that allows for the timescales to slip in limited areas over the summer holidays e.g. getting reports from professionals, as so many of the relevant professionals may be term-time only or taking holidays. It is true that there is no provision in the legislation or CoP for this for parents' comments, unless there are exceptional personal circumstances affecting you or your child (and sadly, I don't think that non arrival of a draft EHCP fits this) or you are away for a continuous period of over 4 weeks.

However, as you did not receive the draft EHCP until 30 August, by insisting on sticking to the statutory timescales, the authority is certainly moving against the spirit of the CoP as you now only have limited time to comment, through no fault of your own. If the authority had pulled their finger out and resent the draft EHCP on 8 August, things would be different, but as it took them 3 weeks to do so, I think it's worth putting pressure on them to recognise that this difficulty is due to the authority not taking corrective action (resending the draft) quickly. I'd suggest contacting them emphasising this and saying that you will accept a slight overrun on the statutory timescale in order to allow you time to comment properly. They will be keen to hit the timescales, but there is no actual penalty to a local authority if they don't, whereas in this situation there could be a penalty to you and your child if the EHCP is finalised and it is not right.

If the authority will not agree to this, I would ask them for a meeting to discuss the draft EHCP. The CoP says that the authority must meet with you to discuss the EHCP if you ask, and you can then press the point that you don't have sufficient time to think about the EHCP and hopefully deal with any concerns or questions you may have, or come up with an agreed approach to move forward. For example, the authority could issue the final EHCP by the deadline, but agree to reissue with further tweaks once you have been able to get your thoughts in order.

I hope this helps

Parent asks:

My son is converting to an EHCP from a statement and his school wants a new Educational Physiologist report and so do I. I live apart from his dad and he is blocking this. The last one was five years ago. What is the legal perspective on this?

IPSEA answers:

The process of transferring a statement to an EHC Plan is a statutory process for which the local authority is responsible.  As part of this process, the local authority must carry out an EHC needs assessment in accordance with regulation 6 of the SEN and Disability Regulations 2014.  This means the local authority must obtain information and advice from certain people and an educational psychologist is one of those (regulation 6(1)(d)).  The only exception is if the local authority, the educational psychologist who provided the original information and the child’s parents agree that the information is “sufficient” for the purposes of the assessment (regulation 6(4)).

From what you’ve told us, you don’t agree that the information available is sufficient but your son’s father does. In education law, a parent is defined as any person with parental responsibility for the child concerned and any person who “has care of” the child concerned. This means you both have rights in relation to your son’s education and Regulation 6(4) requires all those with a say to agree that the information and advice available is sufficient for the EHC needs assessment. In your case, this requirement is not met as you don’t feel that the information is sufficient. Given that the information is 5 years old, it’s also unlikely that the educational psychologist who provided it would agree it is still sufficient (and certainly could not do so, after such a long passage of time, without spending time with your child!).  Therefore, because you don’t all agree that the information currently available is sufficient, the local authority must obtain new information and advice from an educational psychologist.

The local authority will need to comply with its obligations under section 19 of the Children and Families Act 2014, which requires the local authority to have regard to the views, wishes and feelings of parents and children, but also to provide the information they need to fully understand and participate in processes such as an EHC needs assessment. Perhaps your local authority needs to think about how it might better explain the process and its purpose to reassure everyone involved, including your son’s father, that the key focus is on what might support your son to achieve the best possible educational and other outcomes?

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My youngest son is 15 and has just been diagnosed with ADHD. His older brother also has ADHD, he is 22 and was diagnosed at 16 years old. I did not believe the school handled my middle son's ADHD very well.

My youngest son, is now on medication and I have approached the (Independent) school with a view to seeing if he would be allowed extra time as he spends so much time on tasks at home and prep/homework that he has no downtime at all.

He works extremely hard but recent tests at school- one literacy-based and one which explores a student’s ability to ‘process’ information - said neither test result provided scores which were significantly low enough to qualify for exam access arrangements.

The school said they knew my son was anxious about his studies and offered weekly Curriculum Support sessions to maximise a number of skills including organising and completing work; time-management; revision and memory work for exams. They offered help to prepare for his forthcoming French controlled assessment and show him how to use a technique called ‘over-learning’.

My question is ... How can I see a way to seeing that Charlie can be assessed again, if appropriate, we don't agree, we know him better and to be denied when he really needs this to me is criminal especially as they let my other son down so badly. This will be the difference for a B grade to an A or A* for my son. Can you please help or advise me as to where I can go or what I can do?

IPSEA Replies

Pupils who have learning difficulties and/or disabilities may qualify for help (called ‘access arrangements’) in public examinations.

It is the school who decides whether this support is needed by reference to rules laid down by the Joint Council for Qualifications (JCQ) on behalf of the exam boards, overseen by Ofqual. For each type of access arrangement, the JCQ sets evidence requirements which must be met by the school for the pupil to qualify. JCQ inspects schools to check that the evidence requirements are strictly followed.

The JCQ rules are updated every year

When a school is aware that a pupil may need access arrangements, it should gather the necessary evidence of need from class teachers and others (such as parents, the pupil and any other staff and external professionals involved). The school may need to carry out assessment tests (e.g. of reading, spelling, comprehension, writing or processing speed) unless the  necessary information is already available.

It appears that the school has already assessed Charlie’s literacy and processing skills, but conclude that his scores are not low enough to trigger access arrangements. In the first instance we suggest you ask the school for an explanation of the scores and how this means they will not apply to the JCQ for access arrangements.

If you are not satisfied with the explanation you could ask if the school will assess Charlie again and explain your reasons for doing so. However, the school may decide that to test Charlie again so soon is likely to give an unreliable result, particularly if the testing is identical to the assessment he has just had. If the school refuse you should put the request in writing and send it to the school, copying in the proprietor of the school. It would be useful if you could provide the school with as much evidence as possible concerning Charlie’s difficulties and do include your own views.

Parent Question:

I was hoping we could request a statutory assessment under the new SEN reform but it seems we can't as he is progressing in academic areas. He has SEN support at school but his plan is not followed well. He has ASD and his main problems are anxiety, sensory modulation difficulties and need for predictability.

School report they do not see any anxiety. When we have commissioned observations from private therapists they do see it but he does not display challenging behaviour or disrupt learning for others. He is still achieving but at what cost to his mental health. He has lots of support at home and we have engaged private services. I feel we are been penalised for helping him as much as we can and regarding school he is becoming physically ill and is miserable. Should such circumstances not still be entitled to a holistic statutory assessment.

IPSEA Answer:

If your son has SEN (which it sounds as though he has already been identified as having) and may need an EHC plan in place to ensure he gets the right special education support then you should go ahead and ask for a statutory assessment to be carried out.

The legal test for when an LA must carry out an EHC needs assessment is in fact very low. Academic progress is only one strand of education. What is important is to consider his wider educational needs which include the ability to participate socially, cope with his learning environment and participate in all school activities including break and lunchtimes.

Yes, look at his academic progress but also his other needs. Also it is common for children with the type of issues you describe to have spiky profiles, i.e. to be making progress is some areas but to be unable to generalise and replicate this in other areas.

It is concerning that the school has not observed his anxiety. Is it because he does not display it at school (only at home) or is it because they are not trained to see it? It is better to get this question answered now before things potentially escalate for him and he starts developing an aversion to going to school. By carrying out an EHC needs assessment the LA gather the evidence on which they can decide whether he needs an EHC plan put in place or not. Without doing this they cannot know the full extent of his special educational needs

Parent asks:

My daughter is 19 years old and severely sight impaired (registered blind). Throughout her schooling years she was supported with a Statement of Special Educational Needs in a mainstream environment. She left school in July 2014 upon which her Statement ceased and was moved over to a Section 139a and attended a specialised college for the Blind for 2 years.

During her 2nd year she realised that she wanted to change her career path (she was studying a level 3 in performing arts) but after completing work experience in a school environment she decided she wanted to do a Support in Schools qualification (with a view to becoming a TA) as well as continuing with Independent Living Skills and Mobility to build up her confidence (whilst she academically achieved in mainstream, she was very isolated and socially excluded).

Funding was refused from the LA as she didn't have an EHCP and the 139a was no longer in existence as she had 'successfully' completed what she'd set out to do (performing arts).We applied for an EHCP assessment which was carried out, but an EHCP was refused stating that provision can now be met within a mainstream setting. We are taking this to the tribunal.

What I would like to know is:-

• Should she have been automatically transferred over to an EHCP despite leaving school in July 2014 or at least invited to apply (it appears that if she'd have left school a year later then this would have been the case, although the LA are saying that an EHCP wouldn't have guaranteed despite being statemented)
• Whether it was up to the LA to gather information (asking for a proper social needs assessment) rather than request information from social services (my daughter is not known to social services, as her provision for independent living skills and mobility orientation were being addressed 1-2-1 via the specialist setting). So, therefore 'no advice' was received, despite her having a clear need (even the educational psychologist report has indicated she has a need!). Therefore I feel she wasn't assessed properly for an EHCP.

I'm finding it hard to understand how a child with a clear need, which was recognised by the Local Authority in the form of Statement of SEN could go on to be educated in a very specialist setting, being funded by the LA and to then be deemed to have a reduced educational and holistic need. Our court hearing is in April, but I feel like I'm flogging a dead horse because all our local LA are concerned about is that her academic needs can now be met within mainstream with reasonable adjustments. Her social needs mean nothing.

IPSEA Answers:

• Should my daughter have been automatically transferred over to an EHCP when she left school in July 2014?

The law automatically applied to all young people from September 2014. Therefore you are right that the LA was not in breach of its legal obligations by failing to carry out an EHC needs assessment at the time your daughter left school. At this stage, the most practical thing for you to do was to apply for an EHC needs assessment, as you have already done

• Should a social needs assessment have been carried out as part of the EHC needs assessment?

Information should be gathered from a range of different sources as part of the EHC needs assessment – see paragraph 9.49 of the Code of Practice. The only exception to this is where such advice has already been provided and the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process (paragraph 9.47).

If you do not consider that adequate information has been obtained, you should write to the LA pointing this out and requesting that they obtain the necessary information in advance of the appeal hearing, in order for the Tribunal to have a full set of evidence before them.

At present, it is unclear precisely how much information should be gathered from social services. However, IPSEA’s view is that a ‘not known to this service’ response is not sufficient to meet the requirement of providing “advice and information”, and social services should be providing something more detailed.

• General points on refusal to issue an EHC plan

A plan must be issued where in light of the EHC needs assessment, it is necessary for special educational provision to be made in accordance with an EHC plan.

It is important to note that anything which educates or trains the young person counts as special educational provision, even if it is something you might associate more with social care. Independent living skills and mobility training would fall under this heading, as it would be training your daughter to be more independent. It seems unlikely that a mainstream setting would be able to provide all of the special educational provision your daughter needs from the resources already available to them.

Parent asks:

I have requested the council undertake assessments relating to my daughter's sensory needs and fine motor skills through an Occupational Therapist (OT). My daughter's paediatrician identified a multitude of sensory needs and referred her for sensory OT input but they do not have a service currently for my daughter's age. My health visitor has referred her for a fine motor skills assessment but waiting lists are delaying this.

I have told the council they have a duty to undertake assessments I have made a reasonable request but if they can tell me why it is unreasonable I will be satisfied, after many emails where they said they did not have a duty to undertake assessments. They refer to their own send toolkit requiring a graduated approach meaning referrals to be made in which needs are identified but do not go on to state what happens when there is no service for a referral. They also state that they refer to the tool kit regarding a judgement call required by the local authority. There is no guidance as to what is determined as ‘reasonable’ or not, however, local authorities are not required to commission assessments, the duty is for approaches to be made regarding advice and information.

Ipsea Answers:

The short answer is ‘yes’ the local authority (LA) should be conducting a comprehensive assessment of your daughter’s needs. We assume that your question relates to assessments taking place as part of an EHC needs assessment. The EHC needs assessment process is the legal procedure for identifying all the SEN and special educational provision required.

If needs are not fully identified at this stage and the assessment results in the LA issuing an EHC plan, the EHC plan is unlikely to be sufficiently drafted due to the inadequate assessment process.

From your question, it appears that you are already aware that the local authority (LA) must seek advice from a range of people when undertaking an EHC needs assessment. The list is set out in Regulation 6(1) of the Special Educational Needs and Disability Regulations 2014 (the “SEND Regs”) as follows:

1. the child’s parent or the young person;
2. educational advice (usually from the head teacher or principal);
3. medical advice and information from a health care professional;
4. psychological advice and information from an educational psychologist;
5. advice and information in relation to social care;
6. advice and information from any other person the local authority thinks appropriate;
7. where the child or young person is in or beyond year 9, advice and information in relation to provision to assist the child or young person in preparation for adulthood and independent living; and
8. advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from.

The LA is legally required to seek all of this information as a minimum.

You mentioned that your daughter is under the care of a paediatrician and is also known to the health visitor. In relation to point (c) above (medical advice), the expression “health care professional”, is defined in SEND Reg 2(1): “an individual who is a member of a profession regulated by a body mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002”. This is quite a broad list which means that the medical advice does not strictly have to come from a doctor. In addition, this requirement certainly does not require the LA to seek advice from all the medical professionals giving support to a child with SEN or a disability or from whom the child or may need support.

However, if you would like the LA to seek advice from particular medical professionals then you could consider using the right to reasonably request advice from another person under point (h). In your case, this could include advice from a suitably qualified occupational therapist in relation to both fine motor skills and sensory needs. The obligation to carry out the assessment is on the LA but there are corresponding obligations within the SEN Regs which require the bodies from whom the LA requests information to comply within six weeks (Reg 8). So in relation to the referral for assessment of fine motor skills, the fact there is a waiting list does not relieve the responsible commissioning body of its duty to provide the advice within six weeks of it being requested as part of an EHC needs assessment. It would be very difficult for the LA to argue the request to seek advice from Occupational Therapy is unreasonable just because there happens to be a waiting list or indeed because there is not a service locally for your daughter’s age group, as these issues are irrelevant to the request.

You could also provide the LA with any reports and letters of referral that have been provided by health professionals up to this point. This will help support your position that seeking advice from suitably qualified occupational therapists is a ‘reasonable request’ on your behalf. Objectively, a request should be considered reasonable where, for example, a child or young person has been identified as needing an assessment already and they are on a waiting list, or where the school, college or other professionals have said this advice may be needed. Once the LA are aware of potential ‘needs’ it should follow that the EHC needs assessment investigates such needs with a view to specifying needs, provision and outcomes for a potential EHC Plan as required by SEND Reg 6.

It is always best to put your request in writing (either in a letter or an email), so that you have a record of your communication about the assessment. If the LA do not agree to a reasonable request to seek advice and information from a particular professional (or if they have failed to gather advice from all those listed in SEND Reg 6(1)), you should complain using the LA’s formal complaints procedure. The IPSEA website includes free resources you can access and use including a model letter you can adapt in this scenario where the LA is in breach of legal obligations.

It can also be useful to remind the local authority of their additional responsibilities during the assessment process. SEND Reg 7 contains a list of obligations about the way in which an EHC needs assessment is to be conducted, all of which are around engaging with the parent, the child or the young person concerned. This regulation shows the impact of section 19 of the CAFA 2014 (the general principles to which the LA must have regard in exercising their functions, all of which are about supporting and involving children and young people).

Parent asks:

I requested an assessment through my son’s school pre-lockdown. It was for an Educational Psychologist. I received the report two months later and realised that the school had, in fact, ignored my request and gave the Educational Psychologist remit to provide his view and comment on the school’s draft EHC plan before it being shared with me and the LA. I signed the paper for the Educational Psychologist thinking he was going to assess; is there anything I can do?

Ipsea answers:

From your reference to a draft EHC plan, we assume your son has recently had an EHC needs assessment. As part of this assessment, he should have been assessed by an educational psychologist; please see our page on the EHC needs assessment process for more information. (Due to COVID-19 we understand that the majority of assessments are being carried out remotely at present.)

If your concern is that there has been no assessment by an educational psychologist, you could adapt our model letter on this topic to make a formal complaint to the LA.

If your concern is more to do with the EHC plan being shared with the educational psychologist, it may be that the information was shared without your consent, and as such you could consider making a complaint to the ICO. However we would advise caution with this approach, because it is possible you consented to information being shared with the educational psychologist when you requested the assessment, and also it is not unreasonable for a school to request advice from an educational psychologist when providing information for an EHC plan. It may be more productive to focus on getting the required assessments carried out in order for an adequate EHC plan to be prepared.

Parent Asks:

We are going through the needs assessment process. My child is also on a waiting list for an ADHD assessment. Should the LA commission an assessment as I have reasonably requested?

IPSEA Answers

As part of an EHC needs assessment, the LA must obtain advice regarding needs, provision and outcomes from specific professionals and services as set out in Reg 6(1) of the Special Educational Needs and Disability Regulations 2014 (“SEN Regs”):

1. the child’s parent or the young person;
2. educational advice (usually from the head teacher or principal);
3. medical advice and information from a health care professional;
4. psychological advice and information from an educational psychologist;
5. advice and information in relation to social care;
6. advice and information from any other person the local authority thinks appropriate;
7. where the child or young person is in or beyond year 9, advice and information in relation to provision to assist the child or young person in preparation for adulthood and independent living; and
8. advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from.

As you can see, Reg 6(1)(h) allows parents to make reasonable requests for other professionals/services that are not listed, including speech and language therapy, occupation therapy or CAMHS, for example. However, there is no guarantee that any particular assessment will be carried out, just that they will provide a report identifying needs, provision and outcomes. A professional can choose to use different ways to gather the information they need to compile their report, such as speaking to the child’s parents and/or school, observing the child or reading reports from other professionals. Of course, in many situations the professional will choose to carry out an assessment of some sort, but this will not always be the case. If a professional chooses not to carry out an assessment, they would need to explain why they chose to do this.

We would suggest that you request the assessment from the relevant service as part of the EHC needs assessment explaining why it is needed and why it is ‘reasonable’ but remember that the service does not have to carry out a full assessment and may choose other ways to determine their advice.

It is also worth noting that an ADHD assessment is unlikely to meet the criteria of identifying needs, provision and outcomes for an EHC needs assessment. There is also no requirement for a diagnosis to be made for an EHC plan and the individual needs that would be part of an ADHD diagnosis must each be specified within section B of an EHC plan.You can find more information about EHC needs assessments on the IPSEA website:

What happens in an EHC needs assessment | (IPSEA) Independent Provider of Special Education Advice

Parent Asks:

My son was refused an EHC  needs assessment. I submitted an appeal to the First-Tier Tribunal and the LA reversed their decision immediately. It's the summer holidays during the whole 6 week period when evidence should be gathered by the LA. They are not proposing to conduct any assessments only request opinions from an EP and paediatrician who has never met my son. The school have 2 days to respond after returning from summer break. Can I keep my appeal open and make "a request for change" that the tribunal order the LA to carry out the relevant assessments. Or would I have to appeal again at a later date that the assessment was not properly conducted?

IPSEA Answers:

There is provision in Reg 10(4)(a) of the Special Educational Needs and Disability Regulations 2014 (“the SEND Regs”)  which allows an LA to delay completing an EHC needs assessment where they have requested information from a school just before, or during, the summer holidays. So, the LA is permitted to delay if this is required to obtain information from the school.

In an EHC needs assessment, the requirement on the LA is to obtain advice and information from all those people listed in Regulation 6 of the SEND Regs.  This includes ‘advice and information’ from school (Reg 6(b)), an educational psychologist (Reg 6(d)) and medical advice and information from a health care professional (Reg 6(c)).

Most people would assume that some form of assessment would be necessary to correctly identify a child’s needs and provision but the Regulations don’t state that an assessment must take place.  Whilst it’s not acceptable for one professional to write a report and for it to be signed off by another, it will be down to the professional concerned to determine what exactly is required.  All professionals will have their own professional standards/codes of conduct and regulatory bodies that they must abide by.

Appeal

The status of your appeal will depend on the action taken by you and/or the LA after the LA agreed to conduct the EHC needs assessment.

From the question, it sounds as though the LA agreed to conduct the EHC needs assessment before it submitted its response to your appeal.  In these circumstances, the LA must, within 2 weeks of notifying the SEND Tribunal that it did not oppose the appeal, notify you that ‘it must make the EHC needs assessment’.   This is in Reg 45(3). This means that your appeal about the refusal to conduct an EHC needs assessment has been concluded.

If any of the advice you receive does not address needs, provision and outcomes, you can use the IPSEA model letter to complain. The LA should go back to the professional concerned and ask them for advice which complies with SEN Reg 6(1).

If the LA ultimately issues an EHC plan which is inadequate because it is based on incomplete information, then you would need to bring a new appeal about the contents of that EHC plan.

Parent asks:

My child's EHC plan was recently reviewed. We requested amendments, which is going to take a long time to get back. The problem we have, we do not have much in the way of evidence to support the requested amendments. I do have three reports, but they aren't full reports. My child has a lot of needs, including health care needs. If I get the plan finalised and request no changes, I can then appeal. My daughter does require a lot of assessments to support her needs. Can I request these at appeal or is it worth finalising the plan and then requesting a full reassessment? Or can I request reassessment while waiting for the amended plan and cancel out the amendment?

Ipsea answers:

You are considering three different options:

• Seeking amendments through the annual review process
• Asking for the plan to be finalised as it is, then seeking amendments via an appeal to the SEND Tribunal
• Asking for a re-assessment with the hope this will result in a new, more appropriate EHC plan.

With the first option, as set out in our annual review checklist, amendments should be made and a draft EHC plan issued ‘without delay’ (unfortunately there is no set deadline for issuing the draft plan). Once the draft EHC plan is issued, it must then be finalised within 8 weeks.

If you think it likely that the LA will refuse to make the amendments you are seeking, then you may wish to simply finalise and appeal. Alternatively, you may wish to take a more co-operative approach of trying to reach agreement on the amendments through the annual review process (whilst reminding the LA of their duty not to delay).

Your second option is requesting that the EHC plan is finalised without any amendments and then appealing to the SEND Tribunal. You will need to provide the Tribunal with evidence to support the amendments you are seeking. It is possible to request that new assessments are carried out as part of the appeal process, but you would need to persuade the Tribunal that the case cannot be resolved without the LA obtaining information. We would caution against using an appeal purely to attempt to get new assessments, as the judge may not be willing to order them. Additionally, appealing the EHC plan will not necessarily be any faster than seeking amendments through the normal annual review process. However, if you think it likely that your LA will not want to work co-operatively to make changes to the plan, it makes sense to go straight to an appeal.

Finally, a full re-assessment may be necessary where there have been significant changes to the child’s needs since the EHC plan was drafted. IPSEA has a model letter you can use to request a reassessment, along with further information about how re-assessments work. If the LA agrees to re-assess, it should complete the assessment and issue a final EHC plan within 14 weeks. As new information will be sought, this will result in a new EHC plan being issued – so there would be no point in continuing to seek amendments to the old plan if you decide to go ahead with a re-assessment.

If the LA refuses to re-assess, you can appeal this decision – but please note this type of appeal will only determine whether or not a re-assessment is necessary. The Tribunal would not be able to order specific changes to the EHC plan.

Parent Asks:

Hello my son is 8 years old and has ASD with possible ADHD, undiagnosed communication difficulties, possible dyspraxia and dyslexia.  We are waiting for specialist teachers to change from communication to the learning and cognition teacher assessment.  Waiting for QB test with ADHD team (CAMHS).  We are also on the waiting list for him to be assessed by an OT.

We are considering paying for an educational psychologist to assess my son, who was refused an EHCP in March 2022.  We didn't appeal because the school was going to document more information regarding his daily need, which hasn't been completed. If we pay for an educational psychologist, would we still need an assessment during the EHCNA process, or would they accept this report, hopefully getting us through the process quicker?

IPSEA Answers:

When answering this question, I will assume that your son is not attending a wholly independent school as these do not have the same duties towards pupils with SEND. If your child is attending a maintained school or an Academy, then he should be receiving SEN Support via the school’s SEN budget. As part of SEN Support, the school can and should access support from outside professionals where necessary.

Paragraph 6.59 of the SEND Code of Practice 2015 states:

“Schools may involve specialists at any point to advise them on early identification of SEN and effective support and interventions. A school should always involve a specialist where a pupil continues to make little or no progress or where they continue to work at levels substantially below those expected of pupils of a similar age despite evidence-based SEN support delivered by appropriately trained staff.”

Although this sets out when a school should involve specialists, a school can bring in outside professionals at any time, avoiding delays in accessing support. Paragraph 6.60 of the Code states:

“Where assessment indicates that support from specialist services is required, it is important that children and young people receive it as quickly as possible.”

Therefore, if the school agrees that your son requires an assessment, the school should be arranging an assessment with the Educational Psychologist (EP) as part of the SEN Support package for your son.

However, it is important to note that there is no requirement for an EP report to have been obtained before requesting an EHC needs assessment. The legal test for assessment is set out in s36(8) of the Children and Families Act 2014:“The local authority must secure an EHC needs assessment for the child or young person if the authority is of the opinion that—

(a) the child or young person has or may have special educational needs, and

(b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.”

As you can see, the threshold is relatively low. There is no need to prove at this point that your son definitely has SEN or will definitely need an EHC plan, just that he might. There is also no need for professional reports at this point, as these are all obtained during the assessment itself, although if you do have any reports, they can certainly support that an EHC needs assessment is required.

If you did decide to obtain an independent EP report yourself, you could submit this as part of your request for an EHC needs assessment. If the LA then decides to carry out an assessment, the LA would also then need to make a decision regarding whether to obtain out a further EP report. The process for an EHC needs assessment is set out in Reg 6(1) of the Special Educational Needs and Disability Regulations 2014 (“SEN Regs”):

“Where the local authority secures an EHC needs assessment for a child or young person, it must seek the following advice and information, on the needs of the child or young person, and what provision may be required to meet such needs and the outcomes that are intended to be achieved by the child or young person receiving that provision—

(a) advice and information from the child's parent or the young person;

(b) educational advice and information—

(i) from the head teacher or principal of the school or post-16 or other institution that the child or young person is attending, or

(ii) where this is not available, from a person who the local authority is satisfied has experience of teaching children or young people with special educational needs, or knowledge of the differing provision which may be called for in different cases to meet those needs, or

(iii) if the child or young person is not currently attending a school or post-16 or other institution and advice cannot be obtained under sub-paragraph (ii), from a person responsible for educational provision for the child or young person, and

(iv) if any parent of the child or young person is a serving member of Her Majesty's armed forces, also from the Secretary of State for Defence;

(c) medical advice and information from a health care professional identified by the responsible commissioning body;

(d) psychological advice and information from an educational psychologist;

(e) advice and information in relation to social care;

(f) advice and information from any other person the local authority thinks is appropriate;

(g) where the child or young person is in or beyond year 9, advice and information in relation to provision to assist the child or young person in preparation for adulthood and independent living; and

(h) advice and information from any person the child's parent or young person reasonably requests that the local authority seek advice from.”

As you can see, an EP report must be obtained as part of the EHC needs assessment, and that report must give advice regarding the child’s needs, provision and outcomes. However, if that advice already exists, then the LA can choose to use this rather than obtain another report if the LA, parent and person who wrote the report all agree that the report is sufficient for the purposes of the EHC needs assessment (Reg 6(4) of the SEN Regs).

The word ‘sufficient’ isn’t defined or explained in the SEN Regs so we would suggest considering:

• Does the report identify needs, provision and outcomes?
• Are these specific and quantified?
• Is the report recent?

If the answer to these is yes, then it’s likely to be sufficient. It is important to note though, that there is no timeline for when a report is likely to be out of date, and this will vary from child to child, depending on their age and needs.

It is important that everyone must agree that it is sufficient. If the LA or the EP feel that it is not, then the LA would have to obtain a new report. Therefore, there are no guarantees that obtaining an EP report now will speed up the EHC needs assessment process.

Education Professional Asks:

• Who do you apply to for an EHCP if parents live in a different local authority to the school their child attends?
• Can you reapply to a new local authority if the EHCP was agreed by another authority but without funding?
• The school this child attends is a private school. We have one child with a funded EHCP at the school. The child had the funding turned down in another authority because he attended another private school at the time. Can the LA turn funding down on these grounds?

IPSEA Answers:

• The responsible LA is the one where the parents live.  It is this LA who will be required to secure the provision in the child’s EHC Plan.
• Responsibility for an EHC Plan would only transfer between LAs if the place where the parents lived changed – and we’re not sure from the question if this is what has happened.  It’s not possible for an LA other than the “home” authority to be responsible for securing the provision in an EHC Plan.

If the parents have moved to a different LA, then the old home LA will need to transfer the EHC plan to the new LA and must do so within 15 days of the move to the new LA.  There is a statutory process of transfer which must be followed (you can find this in Regulation 15 of the SEN and Disability Regulations 2014).

In the circumstances you’ve described, the new LA is likely to conduct an annual review of the plan sooner rather than later because the question of placement (and who should bear the costs of the fees and provision) is not straightforward – and this would the time to seek changes to the Plan.

However, the LA should have told the parents, within six weeks of becoming responsible for the Plan, when they intend to review the Plan. Where a child is attending an independent school at the choice of the parent (and the LA is not legally required to fund the place – which seems to be the case here) then the new LA will not be required to fund the independent placement either – unless amendments to the Plan are made i.e. they agree to name this school in Section I.

A “home” LA can’t refuse to assess or to issue a Plan simply because a child attends a private school – the usual statutory tests apply to the LA’s decision making regardless of where the child goes to school (or, indeed, if they even attend school or not).

However, unlike the types of schools listed in s.38(3) Children and Families Act 2014, there is no right to request that a private school be named in a Plan and it can be hard to secure it being named in a Plan unless the evidence supports the fact that it’s the only school able to meet a child’s needs (or the costs are comparable to any alternative placement being proposed).

Parent asks:

From 2004, my wife and I were foster carers for a young man with severe autism. In 2016, aged 18 he moved to supported living and now lives in an adjoining borough . Until the move, our foster son has lived in and been educated in his home borough. The LA in his home borough funds his care package and he attends a local FE college. Due to his situation he has "ordinary resident" status.

Our ex foster son has had a Statement and the school started, but did not complete, his EHCP. We were informed that as he now lives in another borough and they have responsibility for his EHCP. We understand is in line with the SEN CoP.

My question is this: Can his previous LA export their responsibility for our ex-foster son's EHCP? It would seem to make more sense for the local authority that has all the background information and past history to be the body that undertakes the EHCP process. His new LA seems willing to undertake the process but we are a little concerned it could become a "tick box" exercise without very close collaboration between local authorities. Has anyone any similar experience or could offer advice?

IPSEA Answers:

The LA responsible for a young person is the area in which they are ordinarily resident. However, there are a number of provisions in the law and the SEND Code of Practice which could be of assistance if you are concerned about ensuring the new LA have all of the relevant information.

The first step towards getting an EHC plan is an EHC needs assessment (this is the case both when someone is transferring from a Statement to an EHC plan, and if they have applied for an EHC plan for the first time). Paragraph 9.14 of the SEND CoP says that when an LA is considering whether to carry out an EHC needs assessment they should consider evidence of the action already taken by the early years provider, school or post-16 institution to meet the child or young person’s SEN. That means that your son's current LA should contact your ex-foster son’s previous school and LA for information.

The importance of sharing information and avoiding duplication is highlighted at paragraphs 9.32 and 9.33 of the Code:

“9.32 Information sharing is vital to support an effective assessment and planning process which fully identifies needs and outcomes and the education, health and care provision needed by the child or young person. Local authorities with their partners should establish local protocols for the effective sharing of information which addresses confidentiality, consent and security of….”

“9.33 As far as possible, there should be a ‘tell us once’ approach to sharing information during the assessment and planning process so that families and young people do not have to repeat the same information to different agencies, or different practitioners and services within each agency.”

If is his new LA agrees to carry out an EHC needs assessment they should discuss with your ex-foster son the range of advice required to enable a full EHC needs assessment to take place. Again, the principle underpinning this is ‘tell us once’, avoiding the child’s parent or the young person having to provide the same information multiple times, see paragraph 9.47 of the Code. This should provide an opportunity for your ex-foster son, perhaps with support, to ask the LA to approach his previous school or LA for information.

Paragraph 9.49 of the Code says that, where it is not possible to obtain educational advice and information from the manager, headteacher or principal of the early years setting, school or post-16 or other institution currently attended by the child or young person, the authority must seek advice from a person with experience of teaching children or young people with SEN, or knowledge of the provision which may meet the child’s or young person’s needs. It would seem logical for the LA to approach the head teacher of the previous school attended for this information, and reasonable to ask for that to happen.

It may be helpful to know that the Children and Families Act 2014 imposes a duty on an LA to co-operate with another LA in the exercise of its functions under part 3 of the Act. See section 31(1) (a) and section 31(2) (a) and (b):

31 Co-operating in specific cases: local authority functions

(1) This section applies where a local authority in England requests the co-operation of any of the following persons and bodies in the exercise of a function under this Part—

(a) another local authority;

(2) The person or body must comply with the request, unless the person or body considers that doing so would

(a) be incompatible with the duties of the person or body, or

(b) otherwise have an adverse effect on the exercise of the functions of the person or body.