SEND Legal query answers

SEND Legal Query Answers

The queries you submit to SEND legal charity, IPSEA, and that were previously submitted to our EHCP Transfer Clinic can be found below.

To ask a question of your own, click here. Remember, IPSEA can't enter into individual correspondence and if your question requires a lot of personalised input or you're in a tearing hurry, you should contact IPSEA directly. The answers and questions posed will appear here, in category groups.

Click the '+' to reveal the answers and click to move through the pages at the bottom of each section. The 'a' section is on this page, click below for other sections

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E: Education, EHC Plans | H: Health | L: Legal Assistance | N: Negligence | O: Outcomes | P: Parent Participation, Placement, Post 16, Practitioner Matters, Provision | S-Z: SEND Reform, Social Care, Statement provision, Transfer to EHCP, Transport

Advocacy

Can I still advocate for my 15 year old daughter?
I was moved from one LA into temporary accommodation in another. We are currently receiving home education  as the LA have not been able to find her a year 11 place. The home educations is working very well. However, I received a letter asking me to name in order of preference what post 16 college she wishes to attend and that I have to do this soon or they will place her in the closet college. I contacted the LA by phone to request an extension as I cannot view the places she is interested  bu the date suggested on the letter.  I was told this was not possible that is the time frame, basically take it or leave it. They also said that at 15 she is classed as a young person and must talk for herself. My daughter has ADHD/ASD/ODD/Anxiety  and Trauma and cannot cope with these types of meeting, I explained this and said that I believe the age is 16 where I would then have to ask my daughter to write a letter giving me authority to act on her behalf with regards to her EHCP, education and transition to adulthood. I was told they will only accept a letter from the courts and that even at 15 she will have to speak and represent herself. Could you please advise as this is not what I have understood to be true nor what other SEN parents have experienced in the past?

IPSEA says:

You are correct that under the Children and Families Act 2014, it is not until a child has reached the end of compulsory school age (ie the last Friday of June in the year the child turns 16) that they become a young person. At that point parental rights under the law in relation to the young person's education will automatically pass to the young person themselves. However, even then, it is still perfectly acceptable for an LA to deal with a parent, rather than the young person, if the young person wishes. This is explained at paragraph 8.13 of the SEND Code of Practice:  As young people develop, and increasingly form their own views, they should be involved more and more closely in decisions about their own future. After compulsory school age (the end of the academic year in which they turn 16) the right to make requests and decisions under the Children and Families Act 2014 applies to them directly, rather than to their parents. Parents, or other family members, can continue to support young people in making decisions, or act on their behalf, provided that the young person is happy for them to do so, and it is likely that parents will remain closely involved in the great majority of cases. You have not told us if your daughter currently has a statement or an EHC plan, or neither, but the following advice assumes that she does have an EHC plan describing home tuition. If that is not the case, please come back to us. It would appear that the LA are preparing to amend your daughter’s EHC plan in readiness for her transfer to post 16 education in the next academic year. Paragraph 9.179 of the SEND Code of Practice says: An EHC plan must be reviewed and amended in sufficient time prior to a child or young person moving between key phases of education, to allow for planning for and, where necessary, commissioning of support and provision at the new institution Paragraph 9.180 says: For young people moving from secondary school to a post-16 institution or apprenticeship, the review and any amendments to the EHC plan – including specifying the post-16 provision and naming the institution – must be completed by the 31 March in the calendar year of the transfer. The LA would appear to be jumping the gun by asking you/your daughter to choose a college at this stage. The process that should be followed when an LA propose to amend a Plan is explained at paragraph 9.194 of the SEND Code of Practice: Where the local authority proposes to amend an EHC plan, it must send the child’s parent or the young person a copy of the existing (non-amended) plan and an accompanying notice providing details of the proposed amendments, including copies of any evidence to support the proposed changes. The child’s parent or the young person should be informed that they may request a meeting with the local authority to discuss the proposed changes. It is at this stage that the LA should ask the parent or young person which school or other institution they wish to be named in the EHC plan. You must also be given at least 15 calendar days to comment and make representations on the proposed changes to the Plan. The types of school which you have a right to request are set out in s.38 (3) of the Children & Families Act 2014 and they are:
  • 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.
If you make a request for one of the schools or institutions listed in s.38(3), the Local Authority can only refuse your request using one or more of the exceptions in s39(4) Act. These are that: (a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or (b) the attendance of the child or young person at the requested school or other institution would be incompatible with— (i) the provision of efficient education for others, or (ii) the efficient use of resources. These are the only exceptions that the Local Authority can use to refuse the request, and the only ones that they would be able to rely on if the case were to go to the SEND Tribunal. The Local Authority has a duty to consult with the school which a parent or young person requests, but the final decision as to which school or institution to name in the final plan rests with the Local Authority. When one of the schools or institutions listed in s.38(3) has been requested, the Local Authority can choose to name that school / college, even where the school / college has said that they do not wish to be named, or they feel that they cannot meet the child or young person’s needs. You can find the SEN and Disability Code of Practice 0-25 here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/398815/SEND _Code_of_Practice_January_2015.pdf You would probably find it helpful to speak to one of our trained advisers to discuss this in more detail. Follow this link to find out how to do this: https://www.ipsea.org.uk/contact/advice-and-support/advice-line
How to find a parent advocate / SEN lawyer

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

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.

Questioning professionals in the lead up to a SEND Tribunal

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

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.

Should the family spend money on a Lawyer?

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

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!

Assessments

Accepting independent reports

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

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.

Can a Child be Assessed for an EHCP in Anticipation of Needs?

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.

  1. 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

 

 

Can a local authority refuse to consider an independent report?

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

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.

Can I Request And Insist The LA Obtain The OT Assessment?

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?

 ask ipsea

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)).

Can my 22 year old grandson with autism get an EHCP?

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.

Can my Local Clinical Commissioning Group Refuse to Accept a Private Diagnosis?

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?

ask ipsea

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.

How do I know if we have reasonable support?

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

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.

My Child’s Father Is Trying To Block An EP Assessment

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?

 

ask ipsea

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 son’s school has turned him down for extra time in exams, what can we do?

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 answers

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.

Should I request a statutory assessment for my child?

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 answers

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

Should social care assess my daughter as part of the EHC needs assessment?

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.

 

ask ipsea

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.

Should the Local Authority ensure my daughter’s SEND are Holistically Assessed?

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).

Who applies for an EHCP if parents live in a different Local Authority to the School ?

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

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).

Who is responsible for the EHCP when a child moves from one area to another?

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?

 

ask ipsea

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.


Skip to:
E: Education, EHC Plans | H: Health | L: Legal Assistance | N: Negligence | O: Outcomes | P: Parent Participation, Placement, Post 16, Practitioner Matters, Provision | S-Z: SEND Reform, Social Care, Statement provision, Transfer to EHCP, Transport

Please note: These questions are answered by the team at IPSEA Charity, who are trained in SEND law, not by Special Needs Jungle. If your query is urgent, please contact them directly. 



EHC Plans

Applied for Statement, now at Appeal, should it be a Statement or EHC Plan?

Parent Question:

I am helping a family go through the appeal statementing process. We are collecting new evidence and collating existing.  The statement application was rejected in May of this year, so we are still talking about obtaining a statement, although as I understand it new statements can no longer be initiated, as EHC Plans are now in existence. So are we following Statement rules or EHC ones?

ipsea answers

IPSEA Answers:

I presume you are at the first stage – requesting a statutory assessment and that is what the LA is refusing to do? Before a statement under the old system or an EHC plan is issued then a LA must carry out a statutory assessment of a child or young person’s needs. Please look at the IPSEA website to see if this is in fact what you are doing.

If you are appealing this decision and the original application was made before 1 September 2014 the Tribunal when they hear the case will be considering the test under the old law. If they find in your favour then (if parents agree) the Tribunal can order the LA to carry out an EHC needs assessment under the new law. Otherwise, the Tribunal will order the LA to carry out the old statutory assessment process under the old law.

If this is something that you are not familiar with then please seek advice from someone who does know. It is complicated at the moment for these cases that were mid-way when the change happened. If you get it wrong the family’s appeal may well falter as a result.

Can I apply for an EHCP if I home educate my daughter?

Parent asks:

I am the parent of a 10 year old girl with high functioning autism. My daughter's current school have been unable to offer extra support, and as a result of sensory issues and the anxieties caused by this, things have grown progressively more unbearable for her and now she feels unable to attend at all.

I am in regular contact with the SENCO at school, and we are also under the care of a Clinical Psychologist.Unfortunately, though, we find ourselves in a state of limbo, as things progress very slowly with school. My daughter has been at home (other than a few hours at school here and there) since September 2016, and as yet we do not have an EHCP in place.

I am unsure of the right course of action with regard to my daughter's future education. I have considered officially home educating, and would be happy to do this temporarily, but do not see this being the right course of action across her secondary education. I think she would benefit from attending school but only if her basic needs are understood and facilitated. She is a very bright, intelligent girl, and sadly her schools, thus far, have not helped her to reach her full potential.I would rather de- register my daughter and officially home educate -BUT -what happens when she is ready to attend high school?

Can I apply for an EHCP at that stage, alongside an application to attend a special school? I do not need an EHCP to home educate, but I think one will be needed to get my daughter into the right secondary school.I am afraid that by de-registering my daughter from her current school, I will lose my chances of getting an EHCP.

To confuse things further, I phoned a home education helpline and was advised not to get an EHCP because this could limit my control over the situation, e.g. if a particular high school is named in it, but my daughter finds she is very unhappy there, an EHCP makes it extremely difficult to remove her from the school.

ask ipsea

IPSEA Answers:

You raise a number of difficulties that unfortunately we come across quite commonly.  When a child or young person’s special needs are not properly met at their current school, the placement can break down.

Covering the issue of the EHC plan first, the law gives parents the right to apply directly to the local authority for an EHC assessment.  You can write to your local authority explaining your daughter’s particular special needs and challenges, that her current school has stated it cannot meet these needs (and she is currently unable to attend) and that in your opinion she has special educational needs for which special educational provision is necessary.  The local authority is legally required to reply to you within six weeks to let you know whether they agree to carry out an EHC needs assessment.  If they refuse you have the right to appeal that decision.

It appears that the advice from the home education helpline has been given on the basis that your preference is to home educate. From your email, it appears that while you would be happy to home educate temporarily if a more suitable provision is not available, this is not your long-term preference. The test for carrying out an EHC needs assessment is whether the child or young person has or may have special educational needs, and whether it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan. Given that your daughter’s current school is currently failing to meet her needs it seems likely that she requires additional provision.

If you decide to home educate there is not necessarily the same obligation upon the local authority to provide special educational provision.  However, it could be possible to make a case that ‘education other than at school’ (home schooling in your case) be made, enabling you to access special educational provision at home.  This is only possible where the local authority is satisfied that it would be ‘inappropriate for the [special educational] provision to be made in a school’.   To meet this test you would need to demonstrate that education in a school would be inappropriate for your daughter.  The way that that is established has been confirmed by the case of TM v London Borough of Hounslow[2009] EWCA Civ 859 which said that to answer this question all the circumstances of the case must be looked at including the child’s background and medical history; the particular educational needs of the child; the facilities that can be provided by a school; the facilities that could be provided other than in a school; the comparative cost of the possible alternatives to the child’s educational provisions; the child’s reaction to education provisions, either at a school or elsewhere; the parents’ wishes; and any other particular circumstances.

If you did choose to home educate without a plan with a view to later applying before secondary school you would need to be aware that the process from initial application to finalising the plan takes up to 20 weeks.  If the Local Authority were to refuse your request for an assessment or refuse to issue a plan that time could be extended if you had to exercise any rights of appeal.  It will be important to bear in mind these time frames when considering the options available to you.

With regard to the plan itself, a Local Authority is required to set out all the special educational provision needed to facilitate the child’s learning, which in your daughter’s case should include strategies to manage her anxiety and support her with any additional needs she has related to her autism.  A placement should be sought that will be able to meet these needs.  Your choice of school will be given preference by the local authority subject to some narrow conditions which the Authority could use to dislodge it (we have not covered these in our answer today).

So to summarise our advice regarding an EHC plan; you can apply to the Local authority yourself for an assessment.  The Local Authority should tell you within six weeks whether they agree to assess your daughter.  If they assess and issue a plan this should include detailed and specific provision to meet your daughter’s special needs.  You will have an opportunity to tell the authority your choice of school.  The Local Authority is legally required to ensure the special educational provision in the plan is delivered by the school.   If you wish to home educate and have an EHC plan you will need to demonstrate to the local authority it would be inappropriate for your daughter’s special educational provision to be made at school.

Turning to the issue of your daughter’s current education, we are sorry to hear that she has not been at school since September due to her anxiety.  Where a child is unable to attend school due to ill health (and anxiety can be considered ill health), the local authority has a legal obligation under Section 19 (1) of the Education Act 1996 to provide suitable alternative educational provision.  An alternative could include tutoring at home or a placement at a special unit.  We would advise you to write to your Local Authority requesting alternative education and quoting Section 19.  You may wish to provide medical evidence of your daughter’s anxiety which is preventing her from attending school.

You should also be aware that you do have a legal duty to secure your child’s regular attendance at school and a failure to do this could result in prosecution. You should ensure the school is recording her absences as authorised absences in order to mitigate this risk.

If you go to the IPSEA website you will find a number of resources that can help you, including a model letter that you can send to the local authority requesting an EHC assessment.  We wish you the very best of luck.

Can I see the minutes from the EHCP decision panel

Our Daughter's EHCP has gone to panel. We are disappointed in panel verdict. I have asked SEN Officer for a copy of the minuted from the panel meeting, but she is refusing to forward a copy without any reason being offered.

Is this right / correct?

ask ipsea

IPSEA says:

It is not clear how your daughter’s EHCP has gone to the panel; for example, if there has been a recent annual review meeting or the EHCP was in draft and is now ready to be finalised both scenarios result in appeal rights.

Therefore, it is important to check whether the circumstances in which the EHCP has gone to the panel will result in an appeal right to the First tier Tribunal for Special Educational Needs and Disability. If you are in doubt please book a call back with an IPSEA advisor to check your rights.

Under the Data Protection Act 1998, your daughter has a right to obtain a copy of the information that is held about her. This is known as a subject access request.Information about children may be released to a person with parental responsibility. However, the best interests of the child will always be considered. So, it is the child who has a right of access to the information held about them, even though in the case of young children these rights are likely to be exercised by those with parental responsibility for them.

This right of subject access means that you can make a request under the Data Protection Act 1998 to the local authority. You can ask the local authority to supply you with copies of both paper and computer records and related information.

However, it is important to remember that not all personal information is covered and there are ‘exemptions’ within the Act which may allow the local authority to refuse to comply with your subject access request in certain circumstances.

For further information about data protection rights and to see an example of a template letter you could use to request your daughter’s information please see: https://ico.org.uk/for-the-public/personal-information/

Can my Home-Ed Child qualify for an EHC Plan?

Parent Question:

If a hitherto perfectly well, capable, social and intelligent child loses most of their sight during just one year, and at the same time due to other health reasons can only access home tuition - Does this not qualify them for an EHC Plan?

ipsea answers

IPSEA Answers:

Highly likely. The question is whether they have or may have SEN and whether they may need to have an EHC plan put in place for them. This is the legal test contained in Children and Families Act 2014 s. 36(8) for triggering the LA to carry out an EHC needs assessment.

After the LA have completed the EHC assessment process they will have enough evidence to decide whether the special educational provision that has been identified needs to be made via an EHC plan i.e. that it is more than a mainstream school or college in England could be expected to provide from their existing resources – money and expertise. From the little you have told me is highly likely that this child would trigger this first step in the process. Look at the IPSEA website for further information and a model letter you can use to trigger the request. Please call for individual advice.

Can My LA Refuse To Issue A Personal Budget?

Parent asks:

I was recently refused a Personal Budget (for swimming lessons for my 16 yr old) they are not something his school provides nor was it on the placement offer and they are not intending to start them. I was refused under the 'Head would not agree to part of the Personal Budget Regulations, which I know is completely wrong.

  1.  should the SEN team be doing the assessment? They are not social services and are in completely different buildings and departments
  2. Are the short break assessments different to the Chronically Sick and Disabled Persons Act (CSDPA)1970? If so, would I need to stipulate the difference in a request?
  3. A am I correct that the assessment I want is the CSDPA and I would write to the LA Safeguarding Board?

I have researched the  LA's safeguarding boards children's assessment chronically sick and disabled act in all its varieties and wordings and it leads me right back to the SEN Team.  If I do have to go through the SEN team I feel there is no point, as their assessment I assume is made round the table.  The team is very clear on the difference between severe and profound and simply complex.  I do understand funding needs to go to those in the severity of needs first, but severe and profound are the only ones possibly getting support from my LA.

ask ipsea

IPSEA  answers:

The first thing to remember is that direct payments for social care and personal budgets for special educational provision are two separate things.

A personal budget in the context of special educational provision is a notional sum of money identified by a local authority, usually when an EHC Plan is being drawn up or amended, to cover certain provision.  Even if a personal budget is identified (and there are reasons why local authorities don’t have to identify a budget) this doesn’t mean that direct payments for such provision will follow: for example, direct payments cannot be made for goods or services to be used in a school without the express written consent of the head teacher (and this may be what happened in your case).

The assessments and policy you refer to, from your local authority’s website, seem to relate to social care services and you can also receive direct payments for social care provision.  This is outside of IPSEA’s area of expertise.

However, a young person with an EHC Plan will have a number of needs identified by health, education and social care and the law is clear that if the provision to meet a special educational need “educates or trains” the young person, then this is special educational provision and should be in section F of the EHC Plan.

Therefore, in the context you’ve described, if there is a special educational need which requires provision in the form of swimming lessons (for example if your son required a non- weight bearing form of PE or if learning how to swim and be safe in the water was an identified step towards independence and adulthood) then those swimming lessons could be specified in section F of an EHC Plan.

We’re not sure if the swimming lessons are currently identified somewhere in your son’s EHC Plan?  If they are, and they are in section F, then regardless of whether you’ve been given a direct payment and regardless of whether it’s within the school’s “placement offer”, your local authority has a duty to secure that this provision is made under section 42 of the Children and Families Act 2014.  If they are in H1 or H2 then you need to pursue your local authority’s social care department because their duty arises under the social care statutes and not the Children and Families Act.

If the swimming lessons are not specified in your son’s Plan, or are in the Plan but not in section F, then you can certainly try to get the special educational need which means your son requires swimming lessons (and the lessons themselves) specified in the Plan in sections B and F respectively. You will require evidence of the special educational need and of swimming lessons (and their frequency) being the provision to meet that need. The annual review is the best time to try to get changes made to an EHC Plan.

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Can the LA withhold an EHCP until other strategies have been tried?

Parent Question:

Is it normal for an LEA to withhold an application for an Education and Health Care Plan for a number of terms until the school has tried other strategies first? My school has refused to request a plan for a little boy who has been diagnosed with Turrets as they say the LEA won't even look at the application until other steps have been taken and proven unsuccessful. Is this happening in other authorities?

ipsea answers

IPSEA answers:

Often a Local Authority (LA) will suggest that a period of time or a set of circumstances must be fulfilled or satisfied before considering the need to assess for an Education and Health Care plan (EHC Plan). IPSEA hear of these situations on a daily basis, for example a Local Authority may require two cycles of SEN support before assessing, that a child has had over £6,000 of support already in school or that they must be more then 2 years behind.

This however is NOT a legal requirement, but the LA’s own SEN policy. The legal test for whether the Local Authority must conduct an EHC needs assessment is in section 36 (8) of the Children and Families Act 2014. The test is that the LA must secure an EHC needs assessment (having considered the views and evidence of the parent or young person) if they believe
1. The child or young person has or may have special educational needs AND
2. Special educational provision may be necessary (in accordance with an EHC plan).

It is important to stress that this is the ONLY test that should be applied by the LA. We would therefore advise the parent to request an EHC needs assessment themselves. A model letter is available on the IPSEA website

Can the local authority change the wording of the provision in an EHCP?

Parent asks:

My daughter has recently had her statement transferred to an EHCP.  The wording of the provision used to specify " a specialist teacher visiting termly" but now it has been changed to  "a specialist teacher visiting when appropriate." Is there any case law I can use for this not to be changed? Have they broken the law or just acted underhand?

Helen answers:

What your local authority have done here takes away the legal obligation for the specialist teacher to visit every term, and means that if an unspecified person thinks getting them to visit isn't needed, no visits need be arranged. The SEN Code of Practice is very clear that provision should usually be quantified. On page 166 in section 9.69, the very first bullet point says:

Provision must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise.

So, in terms of specialist teacher time, the frequency of visits should be specified. Has the specialist teacher written recent recommendations saying how often the visits should be? If not, would be worth contacting them to ask for this.

The cases on 'statements must not be vague' and 'part 3 must specify hours' are the useful ones here for you. Whilst these cases relate to statements, the principles have carried across to EHCPs. In terms of case law, the best place to look is the IPSEA website at: www.ipsea.org.uk/what-you-need-to-know/important-case-law

Can we apply for an EHCP?

Parent asks:

My son is 12 years old and is currently in year 8 at secondary school. He has a diagnosis of Dyslexia and has been on the SEN register since year 3.  Provision provided at school consists of small class size (14) for English and use of  Lexia  3 times per week. He is a reluctant reader and has difficulties with his writing, spelling and comprehension. He also has short-term memory difficulties and requires some support in maths.

He is currently predicted e/f grades at GCSE in nearly all subjects and is making less than expected progress in English. We have requested additional support for him and we have discussed provision maps which are not SMART. We have discussed the use of audiobooks and e-books but this is frowned upon. During our meeting with the school, we specifically asked, 'despite best endeavours and high-quality teaching, our son is not progressing' (his effort grades are always A&B) can we apply for an EHCP? The Senco said we would not qualify. Do we apply for EHCP or try something else?

ask ipsea

IPSEA Answers:

We are sorry that you son is finding the situation at his school so challenging.  Under the new school support system, schools are required to ‘assess, plan, do and review’.  The impact of the school’s support and interventions should be regularly evaluated and revised, particularly where interventions are not working.  If the school is unable and/or unwilling to take any further action, then requesting an EHC needs assessment is always an option for you. To help you further understand this process we have set out below some information on the relevant legal tests.

The legal definition of a special educational need is whether a child or young person has a significantly greater difficulty in learning than the majority of others of the same age. The process for obtaining an EHC plan is that a parent or school can request the local authority to carry out an EHC assessment.  The legal test, which the local authority must apply in order to decide whether or not to assess a child, is whether the child may have special educational needs for which it may be necessary for special educational provisional to be made in an EHC plan.  This test is not particularly high and the local authority cannot apply blanket policies such as refusing to assess children with dyslexia, for example.  Each case must be considered on its merits and the legal test must always be applied.  If an assessment is refused there is a right to appeal that decision to the First-tier Tribunal (Special Educational Needs and Disability).  If the local authority goes on to assess the child they will then apply another test to determine whether to issue a plan.

To start the process you, as a parent, can write directly to your local authority explaining your son’s particular special needs and challenges, and that in your opinion he has special educational needs for which special educational provision is necessary.  The local authority is legally required to reply to you within six weeks to let you know whether or not it agrees to carry out an EHC needs assessment.

As part of the assessment process, the local authority will obtain evidence, including from your son’s school and an educational psychologist.  The assessment process is your opportunity to provide as much supporting evidence as possible about your son’s special educational needs.  Bear in mind that you will need to show that he has greater difficulty in learning than the majority of children of the same age.  You will also want to show that the current provision put in place by the school is not working and, if relevant, that the school is unwilling/unable to offer any other support.  Evidence of your son’s educational attainments will be useful.   As part of the assessment process, you can ‘reasonably’ request the local authority seeks advice and information from an expert or person who can provide evidence of your son’s special educational needs.  You could request a report from a dyslexia specialist.  We hope this information is of use to you.  Please do visit the IPSEA website for more resources on EHC assessments and plans.

Confused about the sections in an Education, Health and Care Plan

I have been told that on the new EHCP it is illegal to have the provision (section F) listed directly under the outcomes.

There is no general section F for provision needed to cover needs it is just straight under each outcome. Is this correct as that is the format the authority I am dealing with use?

Clearly, I am concerned not to sign something off that isn't right and can then lead to misinterpretation or refusal to meet a need as the provision was then said to be linked to a specific outcome later down the line.

Hope I have made sense!

ipsea answers

IPSEA replies:

There is no prescribed format for an EHC Plan at present, (July 2016) so each LA has devised their own.

The important thing is that all the sections prescribed in the SEN and Disability Regulations 2014 (as amended) are included and separately identified.  However, although they must be in separately lettered sections, they don’t have to be in alphabetical order.

If there is no separately labelled Section F in your draft EHC Plan then this wouldn’t be compliant.  However, if there were, for example, separate boxes labelled E and F next to each other (or above and below one another) then this would comply with the requirements.

https://www.ipsea.org.uk/pages/category/education-health-and-care-plans

The crucial thing is making sure that all your child’s SEN are specified in Section B with special educational provision to meet each need specified and quantified in Section F.

Confusion over the school’s SEN funding request at our child’s review

Parent's Question:

Three months ago we had the EHCP review meeting for our son (Year 1, ASD, mainstream school).

On the last day of last term we were given the review forms to sign by our SENCO to return to LA. We were told at that point that the school would be requesting more LA funding and noted the review form had new wording subsequently added, which is :

"The school will seek to request full funding for 32.5, as this is the provision that ****** requires in order to enable him to make progress in a mainstream setting (costing and provision details attached)."

Consequently, we asked if we please could have another meeting with school regards this, which we hope to do soon.

Please can you advise: 1. Is this additional wording something we should be wary about signing we agreed to? (We strongly feel his needs are currently best met at current school . We would like the school to get as much as funding as possible, but this wasn’t discussed at review meeting, and we are concerned it might sound like the school is constructing that he can't progress without the added funding. 2. What happens regards how long this has taken to return the EHCP review form to the LA? (It is now three months since review meeting.)

Many thanks for your advice.

ipsea answers

IPSEA answers:

In order to fully address the concerns in this question, we have broken down each query:

  1. The wording from the school

First a question. Is it already specified in Section F of the EHC Plan that your son must have 32.5 hours of individual learning assistant support each week? If not, what the school is in effect requesting is that the EHC Plan is amended to specify this provision. At this time it only a request, it is therefore not agreed by the LA.

A review of an EHC plan can make amendments to a plan if agreed and signed by both parties. If the provision is agreed the Local Authority must provide what is specified. How the provision is funded is a matter between the school and the LA. (under section 42 of Children and Families Act 2014).

If your child needs the provision (and couldn’t progress without it) then this should definitely be in EHC plan anyway – once it is in the plan, then funding follows.

  1. Attendance at your chosen school

The EHC plan will specify the school at section I – if the school your son is attending is the stated school, then the LA must continue to fund the provision in this school.

  1. Potential delay and length of time since the review meeting

You don’t say what type of review this was - an annual review of the EHC Plan or a transition review as part of moving from a statement over to an EHC plan. The timescales would depend upon the nature of the review.

If this is an Annual Review the LA must decide on what it is doing (leaving it the same, ceasing plan or making amendments) and notify within four weeks of review meeting in accordance with the SEN Regulations (20(10)).

If this is a transfer to an EHC plan then the timescales are that the LA must issue a finalised EHC plan within 18 weeks of the date when it notified the parent they were doing the EHC needs assessment as part of the transfer: Transitional Regulations (21(3))

You need to go back to the LA and ask them to confirm their decision following the review and confirm whether they have accepted the school’s recommendations that your son needs 32.5 hours of individual support each week. Once you receive the decision letter, if you do not agree with what the LA has decided you will have a right of appeal to the SEND Tribunal.

How Soon After The Annual Review Meeting Should We Receive A Response From The LA?

Parent asks:

When the local authority is amending the EHC plan after the annual review meeting, the SEND Code of Practice states they have to send the original notice within eight weeks. They should also send me a copy of the non-amended plan and an accompanying notice providing details of the proposed amendments, including copies of the evidence used to support the proposed changes.

We received the original notice five weeks ago, we have written to the local authority requesting the necessary information and to date have not had a reply or acknowledgement.

ask ipsea

IPSEA answers:

Once the local authority has held the annual review meeting it is then legally required to send a notice within four weeks stating whether it proposes amending, ceasing or continuing the Plan in its existing form. If the local authority proposes to keep the Plan as it is or cease to maintain the Plan, this will generate a right of appeal to the Special Educational Needs and Disability Tribunal. However, if the local authority decides to amend the Plan, there is no time limit by which it must send the amendment notice. The code of practice simply states that where the decision is to amend, the local authority should start the process of amendment without delay (paragraph 9.176). It is only when the notice with proposed amendments to the Plan is sent, that the local authority needs to comply with an 8 week deadline to finalise the amended Plan. This means parents can find themselves in a situation where the outcome of the review is to amend the Plan, but they are then left waiting for a considerable period of time for the actual amendment notice to arrive.

Our advice in this situation is to follow up your letter to the local authority requesting it substitute its original decision to amend the Plan with a decision to leave the Plan as it is. This will bring forward your right to appeal, as the local authority’s failure to send the amendment notice is frustrating your appeal rights. You can then ask for any amendments to your child’s Plan to be determined by the Special Educational Needs and Disability Tribunal.

If my ‘Post 19’ daughter gets an EHCP will her college place be funded?

A parent asks

My 22 year old daughter is at college. LA have refused to assess for an EHCP and whilst we are going to Court on this one, there is one question that nobody seems able to answer.

LA have 100% acknowledged her SEN High Needs status but will not grant the EHCP. As she is now Post 19 years, she will need to pay £3870 for her course next year. If the LA are at least agreeing her SEN status, will she be expected to pay if education is free for 0-25. She has no income so will not be able to continue on the course she is at present studying.

ipsea answers

IPSEA answers:

It appears that the LA may have agreed that your daughter has a special educational need, but that they do not believe that an assessment is necessary. The legal test for whether the Local Authority must conduct an EHC needs assessment is in section 36 (8) of the Children and Families Act 2014. The test is that the LA must secure an EHC needs assessment  (having considered the views and evidence of the parent or young person) if they believe:

  1. The child or young person has or may have special educational needs AND
  2. Special educational provision may be necessary (in accordance with an EHC plan).

Further, Section 36(10 states that in relation to a young person over the age of 18, a LA must consider whether additional time is necessary compared to your daughters peers who do not have SEN.

It may well be that the LA have refused to assess your daughter. This is an appealable decision and if you do not agree with the decision, and you believe that the LA have failed to use the correct test, you should appeal the First Tier Tribunal. It is likely that they will concede the appeal once it is registered, as they have already identified her as needing high needs funding.

Section 8.53 of the Code of Practice deals with those young people who do not have an EHC plan and confirms colleges can charge for those – further details are available on the Skills Funding Agency website – a link to which is available in the Code of Practice. Until an EHC Plan is issued for your daughter she will be liable to pay the fees. You will need to take individual advice as this may change if she is in receipt of any disability-related benefits.

Is an EHCP more than a short-term target?

Parent Question:

I am concerned that the new SEN system focuses so closely on tiny, short-term targets (like an IEP) that it will be impossible to tie any service down to particular provision (e.g. termly support etc.) - they can just set a couple of activities (or may not even contribute). How can we ensure on-going assessment and support for needs without a fight every time the EHC is reviewed (this clearly needs to be quarterly at the most given the short-term nature of the targets)?

ipsea answers

IPSEA Answers:

This new SEND system should extend the long-term nature of planning for our children and young people – so I am a little concerned that you seem to have heard it will only be based on short-term targets. Like a statement of SEN, a new EHC plan will be reviewed annually but unlike a statement it should in section A clearly outline the aspirations you and your child have for their future. These can be as long-term as you like. All outcomes and provision in the EHC plan across education, health and social care should flow from these aspirations. This is long-term planning or mapping.

Whilst the specification of education, health or social care provision may need to change to reflect changes in the development of or information about your child this must not be done without evidence. The new system should give you more security not less.

Is my child with a mental health condition eligible for an EHC Plan?

Parent Question:

My child has a physical difference which has caused him to have low self-esteem at school - a congenital hand deficiency. She does not need too much support at his mainstream school for this physically as she manages so well, in fact I have only just been able to get the school to put her on the SEN register after 4 years at the school! However she has now developed OCD and is not doing very well with writing and maths and I am more concerned about her OCD than her limb deficiency. Would she be eligible for an EHCP even though she doesn't get DLA or have a statement or anything? It seems children with visual differences slip through the net as they don't need enough help physically?

ipsea answers

IPSEA replies:

What is most important is to look at her progress at school and if she is experiencing any issues first discuss them with her teacher. Remember educational progress is not just about academia – it includes her self-esteem. If she has now been identified as having SEN then the school should have already shared with you their individual SEN Support plan for her – this maybe in the form of an IEP (Individual Educational Plan) or in some other form but it must detail what needs (i.e. difficulties in learning) they think she has, the provision they have put in place to meet those needs and then the outcomes they expect to be achieved and when.

By reviewing the SEN Support Plan with the school – depending on her age I would expect at least once a term – then if she is not progressing you can discuss whether they feel she needs to have an EHC needs assessment. Not receiving DLA or having a statement is irrelevant. What is most important is to assess what are her needs in respect of writing, maths and other learning then support she needs to have put in place to progress and reach her full potential. Start with requesting a meeting with the school to discuss your concerns and the support put in place. If the meeting and documentation show that she is not progressing (and her development of OCD seems to show this is the case where her mental health and well-being are concerned) then the school should put in more support or, if they can’t, should request statutory assessment.

Tania adds: If you haven't already, take a look at the charity Reach. RareConnect also has a patient community for people living with limb differences here

Must schools spend £6000 on support before requesting an EHC assessment for a child?

We have pupils with a hearing loss to whom we provide a high level of support from the sensory support service. When schools apply for an EHC plan they find it difficult to evidence where they have spent £6000 as they are not able to put our service down, as it is not a direct cost to them. Is it a legal requirement for them to have spent this amount of money in order to progress with assessment.

The LA also ask that the children have a 2 year delay academically. This is not always a true reflection of the needs of the child.

ipsea answers

IPSEA answers:

Neither of the criteria you have mentioned are legal requirements for securing an EHC needs assessment.

The legal test that all LAs must apply is set out in s. 36(8) of the Children and Families Act 2014.  No other test applies (and this is the only test that the SEND Tribunal will consider if the LA refuses to assess and the parent/young person appeals).  The test can be summarised as two questions:

  • does the child/young person have or may they have special educational needs (SEN); and
  • might it be necessary for special educational provision (SEP) to be secured for these SEN under an EHC Plan?

If the answer to both these questions is “Yes” then the LA must carry out an EHC needs assessment.

Schools and parents need to demonstrate that a child/young person has or may have SEN and these may require SEP to be made under an EHC Plan.  The evidence required to do this will be different for every child/young person and will depend on the nature of that child/young person’s particular SEN and circumstances.

Remember that the real work of investigating the nature and extent of a child/young person’s SEN and the provision these require is done by the LA during the EHC needs assessment itself!

My daughter has dyslexia, can I apply for an EHCP?

My daughter is 12 (year7) she is diagnosed as severely dyslexic with additional SpLD she is currently working at 3 years behind. She has reports from Ed Psych, Occ Therapist, Speech and Lang, Physiotherapist and an external SpLD specialist. She has not had an EHCP and I believe that she should have one. I have been told that now she has moved to secondary school that the process will start again and that the EHCP should have been done whilst at Primary school. Is this correct? Do we now need the Secondary school to do more assessments, more reports to then find out she is even further behind? It is apparent she needs to go to a specialist school that can cater for her needs.

ipsea answers

IPSEA says:

It’s not clear whether an EHC needs assessment was started whilst your daughter was at primary school, however, you can make the request at any point now and IPSEA has a model letter which you can use to make the request:

https://www.ipsea.org.uk/what-you-need-to-know/model-letters/model-letter-1

Remember that the school aren’t obliged to get new information before a request for an EHC needs assessment can be made:  from what you’ve said, the information you have is likely to be sufficient to meet the legal threshold for carrying out an EHC needs assessment.

Once a request for an EHC needs assessment has been made, the LA has 6 weeks to decide whether or not to assess.  If they do assess but after conducting an assessment decide that an EHC Plan isn’t necessary, they have to notify you within 16 weeks of the date of request.  (You would have a right of appeal to the SEND Tribunal at either of these stages.)  If the LA decide to issue an EHC Plan, you have to receive that final EHC Plan within 20 weeks of the date of the request.

If the LA decide to assess, then whether or not new information and advice was necessary would depend on whether you, the LA and the person who provided the current advice agreed that it was still “sufficient” for the purpose of an EHC needs assessment.  If the reports you have are out of date or your daughter’s needs might have changed, new assessments might be important.  Bear in mind the LA will be working to a statutory deadline so these shouldn’t drag on.

In the meantime, the school still has a duty to use its best endeavours to secure the special educational provision your daughter needs.  The reports and assessments you have should inform this SEN Support.  You can find out more about SEN Support in Chaper 6 of the SEN and Disability Code of Practice 2015:

https://www.ipsea.org.uk/file-manager/SENlaw/send_code_of_practice_january_2015.pdf

My daughter’s draft EHCP is vague

I have just received my daughters draft EHCP. I have read it and am a bit worried that it is not totally accurate. For example, they have stated the type of school setting she needs under 'non-education health needs'. Should this not be under 'education'? This is just one example of the comments I have noticed which I have flagged up as not quite right.

My main question to you though is, what exactly needs to be in the report, specific words etc. if I want to secure a "special" school for my daughter? I am worried that my current EHCP is not specific enough and a bit vague.

Marguerite says:

SEN Reg 13 states that the parent or young person must be given at least 15 days in which to give views and make representations about the content of a draft plan. You also have the right to request a meeting to discuss the content of the draft EHC plan (Special Educational Needs Code of Practice 2015 9.77).

I am not sure how the LA could have named a type of setting when they issued the draft EHC plan. Within section 38(5) of the Children and Families Act 2014 it makes it clear that when a draft EHC plan is sent to parents or the young person it must not name a school or other institution or specify a type of school or other institution.  Why? Because the EHC plan, especially the provision must reflect the needs of your daughter from the assessment advice gathered during the statutory process.

Furthermore, you’ve identified your daughter’s EHC plan is vague. When the LA writes an EHC plan, they must by law ‘specify’ the help your daughter must receive. This means describing it in enough detail so that you and your daughter, among others, can clearly tell what must be delivered, how often, how long for and who by. The duty on an LA to specify is ‘statutory’ as it is required by section 37 of the Children and Families Act 2014.

IPSEA provides an EHC plan checklist you can obtain it from here:

https://www.ipsea.org.uk/what-you-need-to-know/ehc-plans/draft-ehc-plans

This checklist will help you to identify each and every need for provision is there, in the right section and adequately described.  Delete phrases such as ‘access to’, opportunities for’, or ‘up to’ as in ‘up to X hours’.  I would advise you to look through all the assessment advice (section K) attached to the plan and extract any useful advice which actually quantifies provision. If the assessment advice is vague you could contact the professional and ask them to make the amendments.

Also, if you want your daughter to attend a special school, the LA has a duty when issuing a draft plan to advise you and your daughter about where they can find information about the schools and colleges that are available for your daughter to attend (SEN Reg 13).

If you or daughter want a school or other institution which is listed in Section 38 (3) then you or daughter will be able to make a request for it under the Act.

A school or other institution is within this subsection if it is:

  •  a maintained school;
  • a maintained nursery school;
  • an Academy;
  • an institution within the further education sector in England;
  • a non-maintained special school;
  • an institution approved by the Secretary of State under section 41

When the LA receives such a request they must consult the governing body of the school or institution and if it is in another local authority, the other local authority. The LA must secure that the EHC Plan names the school or other institution unless section 39 (4) applies.

Section 39 (4)

This subsection applies where

  • the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or
  •  the attendance of the child or young person at the requested school or other institution would be incompatible with— the provision of efficient education for others, or
  •  the efficient use of resources.

This means that if none of the conditions referred to in Section 39 (4) exists, the school or institution requested by you or daughter must be named in the EHC plan.

 

Our Case Officer said my son’s Asperger syndrome wasn’t an SEN!

We have just had the Annual Review meeting of my daughter's EHCP. The senior SEND case officer made an alarming comment when looking at Section B, Special Educational Needs. She said that "Asperger Syndrome, Social Anxiety and Sensory Processing Disorder" are "not SEN and shouldn't be in that section. We are making changes to Section B in line with DFE guidance." I was too shocked to question her.

My question is are they SEN? If not, where should these diagnoses appear on the EHCP? And what guidance could she be referring to?

ipsea answers

IPSEA replies:

A special educational need (SEN) is a learning difficulty or disability which requires special educational provision to be made for the child or young person. Each and every SEN must be specified in Section B whether it is to be provided for by the school/FE college, the LA, the health service or any other provider.

Therefore, we’d expect Section B to specify conditions such as Asperger Syndrome, Social Anxiety and Sensory Processing Disorder.  In addition, we’d expect that they would be broken down into all the specific needs that each condition involves for your daughter so that each need can be answered by special educational provision specified and quantified in Section F.

We aren’t aware of any DfE guidance that might have prompted the SEND case officer to think otherwise (and guidance couldn’t change the statutory definition given in s.21 of the Children and Families Act 2014 anyway).

You might find our EHCP area https://www.ipsea.org.uk/pages/category/education-health-and-care-plans

Should the LA come to our Annual Review?

My son is 15 and has an EHCP which is due for review. I have just received an email from the school's SENDCo to say that no one from the LA will be attending the review and it's unlikely that the Young Persons Advisor will attend either.

We have some concerns we wish to raise at the review but if no one is attending how can we do that? The SENDco says that the LA now never send anyone to review meetings. Are they legally obliged to attend and what is the point of the review if they don't attend?

Thanks for any advice or guidance on this.

ask ipsea

IPSEA says:

Unfortunately, whilst an LA officer must be invited to attend an annual review meeting, there is no obligation on them to attend (although IPSEA would be interested in seeing any documents about an LA policy not to attend such meetings).  That doesn’t mean you can’t ask again for them to attend and explain why you feel their attendance is important.  However, there are duties on the school and the LA which have to be carried out as part of the annual review process and the meeting is just one part of that process.

You’ve said that the Young Persons Adviser may not attend the meeting.  However, advice and information about your son must be obtained from the LA and sent to you at least two weeks prior to the meeting.  From Year 9 onwards, one of the specific purposes of an annual review is to consider what provision is necessary to assist your son in preparation for adulthood and independent living (Regulation 20(6) SEN and Disability Regulations 2014).  So, it’s reasonable to expect that, at the least, information and advice from the LA and the Young Persons Adviser will be obtained, circulated and then discussed at the annual review meeting.  You can ask school and the LA to make sure this happens.

Within two weeks of the annual review meeting, your son’s school must prepare and send a written report, including the information and advice obtained from the LA, setting out recommendations on any amendments to be made and the difference between the school’s recommendations and those of anyone else at the meeting.  This report is sent to you and the LA and forms the basis for the LA’s considerations about whether and what amendments to make to your son’s EHC Plan.

Therefore, you’ll see that, even if the LA/Young Persons Adviser choose not to attend the meeting, there’s plenty of scope for you and the school to have a thorough discussion of your concerns and make recommendations for what provision will best meet your son’s needs now and as he moves towards adulthood.

The LA has refused to assess my daughter, what can we do next?

My daughter has just finished school and has started college, in between starting college and leaving school we applied for an EHCP instead of her Send school plan. This would help her at College and provides her with the help she needs, she has ASD, severe Social Anxiety and presents with Selective Mutism.

The LA denied a request to assess. They stated her pupil referral unit school already catered for her additional needs. However, their decision is based on her previous school. What are my next steps as the College is very confused?

ipsea answers

 

IPSEA says:

It is not clear when you applied for a EHC needs assessment but when a LA refuse to assess they must state in the refusal letter that there is a right to appeal the decision to the First Tier Tribunal for Special Educational Needs and Disability. The right of appeal must be exercised within two months of the decision or within one month of obtaining a mediation certificate: whichever of the two dates falls the latest.

It is worth bearing in mind that the test in law concerning when a LA must assess a child or young person is set at a relatively low threshold. The test is that the child/young person has or may have SEN and it may be possible that the LA needs to make provision for the child/young person by way of a EHC Plan. The term “may” simply means it is possible so you do not need to show that your daughter needs a EHC Plan with any great degree of certainty.

If you are within the time limit for appealing then your daughter should consider appealing. Appeals against a refusal to carry out a EHC needs assessment are now heard on the papers which means there is no need for anyone to attend a hearing.

If you are out of time for appealing the decision then your daughter can (or you can on her behalf with her permission) make another request to the LA. IPSEA have a model letter which can be used and you can access this here. If the request is refused again it is important to consider appealing. IPSEA have a Tribunal Helpline which can advise on the tribunal appeal process and details on how to book a call back can be found here.

What are some practical examples of needs for an EHC Plan that cannot be met from normally available school resources?

Parent Question:

The SEND Code of Practice states that the threshold for an EHC plan is that the child's special educational needs cannot be met from the resources normally available to mainstream settings.

According to SEN Minister, that's not the same as the £6,000 threshold for banded funding. I'm really struggling to understand this. Could you give a few practical examples of needs that cannot be met from normally available resources? And how would an EHC plan help the school to meet those needs, given that a plan doesn't confer any additional funding to the school?

ipsea answers

IPSEA Answers:

The legal test for when an LA must issue an EHC plan can be found in the C & F Act 2014 s.37(1). It says:

“Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan -

(a)  the local authority must secure that an EHC plan is prepared for the child or young person … “

The test is whether it is “necessary” – there is no reference to levels of funding such as £6,000; hours of support; number of years a child is “behind” or any other test which parents tell us LA’s have as part of their SEN policies.

The £6,000 you refer to is a level of funding referred to in a SEN funding policy approach introduced by the Department for Education. It is not law and the legal test will always “top-trump” policy.

The LA has a legal duty to secure all the special educational provision specified in an EHC plan in section F (just like the provision specified in Part 3 of a statement of SEN). This duty can never be delegated to a school or college. It is for the school/college to be clear about what they have the resources to provide and to request additional funding from the LA if needs be.

What do I need to know about the new EHC Plan?

Parent Question:

My son is 16 years old, and Is in Yr 12. He has had a Statement of SEN since yr 3 and having been in mainstream up til yr 6 and then a specialist independent day provision, now has a weekly residential placement there. From there he attends Bexhill a 6th form college for a BTEC L2 course in IT.

His Statement was amended, with a Solicitor assistance, and was finalised in March of this year.

I have always been pretty on the ball about what is going on - but feel very lost now, with the changes taking place. I would be grateful for some pointers on what should I be aware of re the new ECHP? Will my son be transferred on automatically or do I need to request it - and should I want to? Also, is this be something to raise at Annual Review or before?

ipsea answers

IPSEA Answers:

Don’t panic. Whilst he is still in a school his statement will remain in place until he leaves there. I am presuming that he will stay there until the end of year 14. The question is what does he want to do after he leaves the specialist independent school? If he stays in education or training – maybe at a FE college or transfers to a post 19 Independent specialist college he will need to transition to an EHC plan.

At this year’s Annual Review meeting you should start to be clear about what he wants to do as his next step. If he needs to transition to an EHC plan then tell the LA in writing and ask them to let you know when they propose this will happen. Remember that as he is over 16 years old when he goes through this process the question of mental capacity will need to be answered (see previous question). Post school education – either at 16 years old or 19 years old – is a particular area that LAs and FE colleges are finding really hard to grasp properly under the new law. It is something that they have not engaged in fully before. If you think you need advice please seek it quickly.

What is the defintion of ‘Education’ used in the Education Health and Care Plan?

Parents Asks:

What definition of 'education' is used in Education Health and Care Plans? Does educational provision just cover access to the National curriculum or does it cover the wider school curriculum including support for after school clubs run by the school?

Does educational provision in an EHCP just cover the school day e.g. 9 until 3.15pm? What is the situation, in terms of reasonable adjustments, for schools who offer an after school club on their site, but which is run by a private provider. Is the school still responsible for the club - who must make reasonable adjustments? Does the school have any responsibility for a private provider Education?

ipsea answers

IPSEA Answers:

The definition of education, or more particularly, special educational provision is found in s.21 of the Children and Families Act 2014.  It is defined as educational or training provision that is additional to, or different from, that made generally for other of the same age in mainstreams schools maintained nursery schools, mainstream post-16 institutions or places in England at which early years education is provided.

Special education provision is delivered in the normal school day and ordinarily after school activities are excluded.  If a case can be made that an after school club has an educational element and this is included in the child’s EHC plan at Section F (i.e. it’s demonstrated that it is special educational provision to meet a specific special educational needs in Section B of the Plan), then the LA would be obliged to secure the special educational provision specified.  The norm, however, is that after-school activities are not special educational provision – because it does require evidence to support special educational provision being delivered in this way, outside of the school day, to meet a child’s SEN.

If the child is disabled, then there would be a duty on the provider/school to make reasonable adjustments in accordance with the Equalities Act 2010 (although cost considerations make certain adjustments unreasonable).  It might also be possible to secure support outside of the SEN Law framework via social care support.

Where can I find information about the Personal Budget?

I am about to transfer from a statement to an EHCP and I don't know where to find about the personal budget.

My son is 10 and I am not aware of him having any personal budget but to get one where do I find out what it is?

ask ipsea

IPSEA says:

Firstly, as you are about to start the transition process it is important to make note of the date when the local authority sends you the ‘notice of transfer’. This is the letter they must send in law to formally start the process of transition. Without this letter, it will be difficult to make the local authority adhere to the time limits for transition as it is the ‘notice of transfer’ which formally starts the legal time limits for completing the process.

In law, a transition from a statement to a EHCP is an EHC needs assessment. Your local authority cannot simply ‘tip’ the information from your son’s statement into an EHCP. https://www.ipsea.org.uk/pages/category/education-health-and-care-plans

Personal budgets and direct payments were introduced as a way of increasing independence and choice for individuals by giving them control over the way in which services that they receive are delivered. Direct payments have been available to young people and parents of children with SEN and disabilities for some years to pay for social care provision.

The new feature of the Children and Families Act 2014 was the introduction of personal budgets for the provision specified within the EHC Plan, (including the special educational provision) and the possibility of direct payments for the special educational provision specified in the plan.

In respect of all types of provision for which a personal budget has been requested and identified, there are four potential ways in which parents and young people might be involved in securing the provision and having the personal budget delivered:

  • Direct payments – where individuals receive the cash to contract, purchase and manage services themselves;
  • An arrangement – whereby the LA, school or college holds the funds and commissions the support specified in the plan (these are sometimes called notional budgets);
  • Third party arrangements – where funds (direct payments) are paid to and managed by an individual or organisation on behalf of the child’s parent or the young person;
  • A combination of the above.

There is no duty on you to request that the local authority identify a personal budget, it is completely optional. However if you wish to request a personal budget for the provision within the EHC plan, you can do so:

  • when a draft EHC plan is being prepared following the EHC needs assessment your son has as part of the transition process from a statement to a EHC Plan or;
  • when the EHC plan is being reviewed annually

There are limited reasons in which the local authority can refuse to prepare a personal budget. This will apply where the personal budget is part of a larger overall budget sum and separating the sum for the personal budget:

  • would have an adverse impact on services provided or arranged by the LA for other EHC plan holders, or
  • would not be an efficient use of the LA’s resources.

If the LA does refuse a personal budget on such grounds, it should inform you why it is unable to do so. The SEND Code (paragraph 9.106) indicates that the LA should work with the parent or young person to try to personalise the services in question through other means and should use the information to inform future joint commissioning arrangements to ensure that greater choice and control can be achieved in future. 

Who can I ask to check our draft Statement or EHC Plan?

Parent Question:

After repeatedly asking for and being told by schools that my ds, 8yrs old who has autism would not get a statement, I applied myself and was successful. I have just received the draft statement but I’m not too sure if it's right or worded properly etc. Is there someone who can check it? DS was given 25 hours, going down to 20 next year?

ipsea answers

IPSEA Answers:

It is important that when you are consulted as a parent or young person on a draft statement or EHC plan that you know what should be in it. The IPSEA website has information on both what to look for in a statement and a new EHC plan checklist to help you. What you want to be sure of is that all your child’s special educational needs are recorded in Part 2 of a statement (or section B of an EHC plan) and that for each need there is corresponding special educational provision in Part 3 (or section F of an EHC plan).

That SEP (Special educational provision) must by law be specified i.e. it should make clear who will do what, when and where and how progress will be measured (and then how often). Watch out for weasel words/phrases such as “regular”, “opportunities for”, “as required” and “access to” which are too often used by an LA to leave things fuzzy and unclear – thereby blurring their legal responsibility to provide it! These requirements are the same both for a statement and for an EHC plan. If you have any questions then please seek advice.