ASK IPSEA Legal Agony Answers

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SEND legal charity, IPSEA, answer your special educational needs and disability legal conundrums on this page. We'll send out a blog post each time we receive a new batch of answers.

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!

Advocacy

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?

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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.

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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 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.

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 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

Julie 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 and can be accessed on the JCQ website here: http://www.jcq.org.uk/exams-office/access-arrangements-and-special-consideration/regulations-and-guidance/access-arrangements-and-reasonable-adjustments-2015-2016.

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

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.

ASK IPSEA: 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?

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Julie Moktadir, IPSEA CEO 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/

ASK IPSEA: 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 CEO, Julie Moktadir 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.

ASK IPSEA: 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

Julie Moktadir, IPSEA CEO 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. Before the transition starts it would be useful for you to check out IPSEA’s resources on transition and ‘what happens during an EHC needs assessment’ briefing which can be found here.

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. 

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 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

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 (sectionF) 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

Julie 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.

Our EHC Plan checklist will be helpful in understanding what should be in each Section:

https://www.ipsea.org.uk/file-manager/SENlaw/ipsea-ehc-plan-checklist-2015-april.pdf

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.

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

Julie Moktadir, IPSEA CEO says:

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

Julie Moktadir, IPSEA CEO 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

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

Julie 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 EHC Plan checklist helpful: https://www.ipsea.org.uk/file-manager/SENlaw/ipsea-ehc-plan-checklist-2015-april.pdf

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

 

Julie Moktadir, IPSEA CEO 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.

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.

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!

Negligence

A case of Educational Negligence?

Parent Question:

I know this is for SEN needs and I currently have a legal aid solicitor dealing with my sons issued statement appeal. My question is have you any advice/ suggestions regarding an Educational Negligence Case? I am not really concerned with the cash figure of bringing a case with TORT law, but after 11 years I am sick of seeing the people with duty of care over my son letting us down and the last two odd years in secondary school have got to have been the worst, not only a challenging time for any child but my son has ADHD, DCD, severe receptive and expressive language disorder and the SENCo has called my son lazy, stated he claims not to know things they know he has been taught, refused to accept the  medical professional advice regarding DCD/dyspraxia and has fought me every step of the way in getting my son's statement.  I have paper trail evidence of everything I am saying is there any direction you could point me please

P.S I like to say that this is an amazing idea and desperately needed THANK YOU

ipsea answers

IPSEA Answers:

Cases of negligence are notoriously difficult to bring in SEN – although not impossible. You would need specialist advice to build such a case and evidence as to what action the LA took or failed to take and the result that caused.

The issues you are recounting are to do with the school directly and do not seem to be with your LA. It is your LA who are ultimately legally responsible for ensuring your son receives the special educational provision in his statement. They must hold the school to account and make sure they are doing what they are supposed too. There are two potential issues 1. That the statement is written in such a “woolly” way that it is not clear what support he should be getting or 2. The statement is clear but the school are just not doing its job. Usually it is a combination of both.

As you have an ongoing appeal over your son’s statement, however, it may be best to see if you can start to resolve things by getting his needs (such as his reading age) accurately described in the statement and then the provision to meet those needs pinned down. Once this has happened then if the school continue to fail to put in the support that is required then you and the LA can take steps to ensure they do.

When you have lots of issues, it may be a good idea to concentrate on one course of action which you know can have an effect, and taking one thing at a time. A claim of negligence – even if it was successful – would not actually ensure your son gets the support he needs now.

Parental participation

Should I be told about experts observing my child in school?

A team called ASCOSS have visited my daughter once, at nursery. She has now been in primary school since Sept this year. I managed the transition myself. Ascoss said they would let the school know they were there if the school needed support and that they would arrange to go in at a future date. I then learnt yesterday that ascoss went in to the school and met the head teacher and observed my daughter, without me knowing. Can they do this?

Am frustrated as neither of them knows her needs (she is high functioning ASC). Can I ask to be involved in future? Also, are there guidelines about who needs to be informed about her diagnosis? I want to keep it confidential at the moment.

ipsea answers

 IPSEA Answers:

I am not at all sure who ASCOSS are but am presuming it stands for “Autism Spectrum Condition Outreach Support Service”. This seems to be a locally provided support service in your area. Under the Children and Families Act 2014 the LA has a duty under s. 19 to use their best endeavours to ensure parents fully participate in decisions about their child’s SEN. Not letting you know that this visit was going to take place, not asking for your input, not involving you so far in any decision making around the needs they have identified your child as having or the support needed to be put in place for them is not complying with this duty.

As far as the school is concerned, a school does not need your permission in order for a professional to observe your child but it certainly good practice. Once they begin to make special educational provision (that is provision which is additional to or different from what is being made available general to children of the same age in mainstream schools) they the school must notify you. Importantly you need to find out why you were not been told about this visit? If it is a failure to communicate with you then the school need to review their approach – quickly.

Your question about who needs to know about your daughter’s diagnosis is more difficult to answer. If your daughter is to get the support she needs then it is very important that those responsible for her education know about it. Otherwise they cannot plan to support her properly or get the right professionals in to help them find out what support she needs. This is something that all staff should know about at the school – including lunch-time assistants and classroom support staff. If it is other parents knowing then there is no need for them to know if you do not want that to be the case. You need to make your wishes clearly known. However you may well find it helpful for some of the other parents to know as they may well be a good source of support for you and your daughter.

Placement

Are Tribunal placement decisions portable?

Parent Question:

We had to take the LA to Tribunal to get our granddaughter, who has DS into the school of our choice. Is this decision portable between local authorities?

ipsea answers

IPSEA Answers:

Unfortunately the decision re placement made by the SEND Tribunal is not portable. It would be for the new LA to decide, within six weeks of the family moving to the new authority, whether they will maintain the statement as it is (including leaving the name of her current school in Part 4) or whether they would be looking to reassess your granddaughter’s needs, transfer her to an EHC plan and potentially name a different school. Ultimately it will come down to costs and whether the new LA feel they have a suitable school nearer to where they will be living which is cheaper. However, given it was impossible for the current LA to show this was the case it may well be that the new LA do not have such a school available.

Flexi-schooling for SEN children

Parent Question:

I have been looking into flexi-schooling for my autistic son.

I attended a presentation at the TES SEN show by the Hollinsclough school who advised their LA has prevented them using flexi schooling for children with statements. Please can you advise if Flexi Schooling is not an option for children with Statements as I was very much hoping to explore this option.

ipsea answers

IPSEA Answers:

The term “flexi schooling” can cover many different approaches – e.g. a mix of special school/mainstream school; school/elective home education; ABA programme/school. You first need to be clear what you mean by it. Once you are then you need evidence that this approach to educating your child is effective given his special educational needs and the special educational provision identified through the assessment process and specified in his statement or EHC plan. If you then request that this particular approach to education is adopted for your child the LA must then consider it and if they say no give a reasoned explanation based on his individual situation.

No LA can have a blanket policy that any particular approach to education is “not an option”. For your child it may well be the best option. Remember that for those children and young people with an EHC plan that the LA has a duty to support them to achieve the best possible educational and other outcomes under s. 19(d). If your child has a statement they will be transferred onto an EHC plan at some point before April 2018.

Has our daughter been discriminated against by her choice of college?

Parent Question:

My daughter who was 16 years old on 24th of August, attempted to enroll on a Level 3 Diploma in an Arts and Design course at college in September having left her Special School in July 2014. She was diagnosed with ASD/Asperger's in 2008 when she was 10 years old, and had a Statement of Special Educational needs until she left school. She now has a Learning Difficulty Assessment.

Although she met the “Specific Entry Requirements” according to the prospectus, she was still not allowed to enroll because she only achieved a D at English GCSE. This however is not a Specific Entry Requirement. It was heavily inferred by tutors that the Head of School has discretion over entry.

When I read the Ofsted report for the college, there was criticism of the “Outcomes” ie: results. A friend of mine's son (also with ASD), was told at his college that they were taking a risk by allowing him onto a course because it might “affect their results”

My daughter, instead of being enrolled on her course of choice, has been offered a Level 2 course (no qualifications needed to access this) for one year to “See if she can work at this level”..... I suspect that she too has been discriminated against in case she too is responsible for “affecting results”. I am led to believe that this is not the only case at this college of students with special educational needs and would welcome your advice. I have met with the principal and the Head of school but to no avail, and would consider legal action. Do you consider the college's actions as discriminatory?

ipsea answers

IPSEA Answers:

It is highly likely that the college’s approach is discriminatory under the Equality Act 2010. To bring a claim of disability discrimination may well be the only way to reveal to the college the error of their thinking and practice and to get your daughter on the course that she wants to attend as soon as possible. This needs further investigation and careful advice. (The SEND Tribunal does not hear claims of disability discrimination against FE Colleges – a claim would need to be brought in the county court.) 

I strongly suggest that at the same time you or your daughter – she should do this herself if she has mental capacity to do so or you can act on her behalf if she does not – request that your LA carries out an EHC needs assessment of your daughter’s education, health and social care needs which could then result in an EHC plan for her. Like a statement of SEN – but unlike an LDA – this gives her a right to the special educational provision specified in it. If she is correctly assessed it should mean the right support will be put in place to ensure her needs are being supported and that she can access the course she wants – maybe even get the results that the College seem so keen to ensure their students achieve! Further information and a model letter you can use to make this request can be found on the IPSEA website.

I’m not happy with my son’s school

Parent Question:

My son has spent five years in a special school BESD (Behavioural, Emotional & Social Disorder) primary. He has just started a mainstream secondary school. There have been a lot of incidents. According to the school he is fine which I don’t think is true. His behaviour at home is terrible as he saves it up some days. They say he is educationally bright.

I would like him to go to a BSE school again. The only one suitable is in special measures at the moment. How can I get them to agree this school? If not what are his other options regarding school? Dual placement or out of county? Will he get into a special school again? They are saving money by sending him mainstream.

IPSEA Answers

If you are not happy with his current school placement then you need to first find out exactly what is or is not happening for him. You need a meeting with the school to discuss this. Ask the school for confirmation in writing of what SEN Support he is receiving in school.

Some schools are still calling their records of what support is being provided IEPs (Individual Education Plans) but your son’s school may now be calling it something else, such as an SEN support plan or a pathway plan. Either way there must be a written record to tell you exactly what support they are putting into place for him, when, how and what individual targets they have set for him and his progress to date. Raise your concerns and then confirm in writing to the school. If he only joined them in September this year it is still early days and a settling in period for both him and them but that does not mean they should not be working to support him.

Once you have this information, if you still want him to change school, you need to identify where you want him to go and ideally why. You can look at any school you want and you are not restricted to schools within a LA’s geographical area. Once that is clear you can start working towards him making the move. I strongly suggest you get individual advice on the process of how to do this before you start. The approach you take will depend on the type of school you want.

If your son still has a statement (this is not clear from your question) then you need to involve the LA in this as they are responsible for ensuring that the special educational provision in a statement is delivered. If you are not happy with the school named in the statement then the statement will need to be reviewed.

LA refusing our placement choice for our clever but challenged son

Parent Question:

My authority has refused to send my son to an autism-specific school that can also manage his other special needs. They say he has to go to local special needs school that I am not happy with and fail there before they will pay for him to go to my preferred school. He has already been to a secondary school with an autism unit and I took him out after 5 months (in another area). We had the initial EHC meeting with 11 professionals there and all except the SEN Manager agreed with me.

Also everyone at the meeting agreed that my son should have a personal budget for him to experience independence from me (and to give me a break). First draft approved but then was recalled and someone in council changed it and resent, detailing I would provide everything he needed. I have refused to sign off and there is no submission from health yet. I have home-educated him for over 2 years. They wanted me to sign him up to an online learning system so they could get him on a school's register and claim his allowance but when trialled he could not manage it. I would love him to experience the autism school which would give him a personalised education to his full potential and feel that just because we have moved into this area when he was 12 ( he is now 14 ) that they are happy to refuse till it will be too late and he will end up on the scrapheap and fighting for benefits to survive on for the rest of his life instead of being an asset to society. Why should they be allowed to do this to my clever but challenged son?

ipsea answers

IPSEA Answers

Under both the old SEN system which resulted in a statement of SEN and under the new EHC system, which can lead to an EHC (Education Health and Care) plan, once an LA has assessed a child’s needs then identified the special educational provision needed to be put in place to meet those needs they must then consider at which school or college this provision should be made. Only at this point they should ask parents or the young person to make any request they have for a particular school.

In your case if you requested a non-maintained special school the LA must name it unless they can prove one of the reasons not to listed in the Children & Families Act 2014 section 39(4): the school is unsuitable; the attendance of the child or young person will result in the inefficient education of others or the inefficient use of resources, i.e. it will cost much more. These are the only reasons they can use to say no. It should not be the decision of one person: if all the other professionals are saying that your choice is the most suitable school, then if the LA fail to name it in a final EHC plan the decision is appealable to the SEND Tribunal. You would already have a weight of evidence to back your claim. Get your LA to finalize the EHC plan (if they have already carried out an EHC needs assessment) and if they do not agree with your requested school then they should say very clearly which of these three grounds they are relying upon. Once it is clear you can prepare any case you may have to bring to the SEND Tribunal. If you are still living with a statement rather than a plan, you can appeal after an annual review.

As part of the process of drafting an EHC plan – or once you have an EHC plan when it is reviewed - you can ask your LA to identify a personal budget for your son. This is a notional amount of money (i.e. not an actual amount of money) which is identified as being needed to be spent to make the provision specified in the EHC plan. This can be education, health or social care provision. An LA must do this except in very limited circumstances. Again, if they say no to such a request they must clearly tell you why.

In addition you can request that a part of that notional personal budget is taken as a direct payment. This is an actual amount of money that you would receive to buy –“commission”– any provision specified in the education part of the EHC plan. Again if an LA refuses this request then they must say clearly why they have said no.

In both cases – requesting a personal budget and direct payments – you can ask the LA to review any decision to say no. Ultimately you can challenge such a decision via judicial review. Only when you ask formally will you get a formal decision. Neither personal budgets or direct payments are available until you have or it is agreed a child or young person will have an EHC plan.

The request that your son signs up to an online course needs further investigation. What is important here is to distinguish between where he is “electively” home educated (i.e. you have chosen to educate him out of school) or where he is “educated otherwise” than in school by the decision of the LA. Which it is will affect the advice you will be given and this matter needs careful individual consideration.

Moving to a new area

Parent Question:

Once you've had a post-16 transition review from Statement to EHC Plan and a school is named and young person starts on that new school, if the family move to another borough would the new borough have to accept the school named or they have the right to re-assess and offer another school?

ipsea answers

IPSEA Answers:

Unfortunately if you move LA then the “new” responsible LA does not have to accept a school/college previously agreed by a different LA. They can do so if they chose- if they agree it is still the nearest suitable school/ college placement. But they also have the option of carrying out a reassessment of the young person’s needs and naming a different school/college.

What is an “efficient use of resources”?

Parent Question:

Can you please explain what is meant by 'efficient use of resources' as in Section 39, 227 ?

We are asking for a post 16 special school college which is just over our local authority border,(a local authority school). There is nothing else in our area that offers the curriculum my child wants to follow for her aspirations. Everyone agrees appropriate but not sure it will be funded.

ipsea answers

IPSEA Answers:

Aghhh! The age old question which was relevant under the old law and still under the new. It’s all about the money! Would it cost an LA more to place a young person in the parent/young person’s choice of school or college rather than one that the LA considers as suitable but which is cheaper.

The law does not recognise LA geographical boundaries so you are not limited by that (which unfortunately many LA’s fail to make clear to parents). What is important is to look at the total cost of the placement to the LA including all cost including education, health and social care plus anything else which is an expense to the “public purse” but will be provided by the child or young person being in a particular school/college. Here is a very simple example. It is agreed that a child needs 1 hour direct speech and language therapy per week.

The LA wants the child to attend a mainstream school which does not have a speech and language therapist on staff. The cost of the LA placement is £15,000 p.a. plus the cost of the speech and language therapy which is £2,280 p.a. (38 hours @ £60 per hour). Parents want an independent special school. The fee for that school is £18,000 p.a. When you compare the total cost of the two placements you can see that the parent’s choice would be cheaper so there is no inefficient use of resources. If the LA had however failed to include the additional SALT cost in the calculation you can see it could fall the other way.

It is vital to be clear what the two placements can provide and at what cost. Where a statement or EHC plan is not specified properly it is very difficult to work this out. Where it is not clear what a school/college can provide from within its existing resources – funding and professional expertise – it is also very difficult. That is why it is so important that an LA Local Offer document sets out what it expects its schools to provide from existing funds (as opposed to what is actually does). Unfortunately it is hard to find one at the moment that actually does that.

When do the new SEND rules apply to us?

Parent Question:

My local authority case officer has pretty much told me that until I have an EHCP, that the new Children and Families Act doesn't apply to us. My son's papers are being submitted to the panel for secondary placement consideration and I've been told I cannot make a choice for a school on the SOS approved list until we have been transferred to an EHCP. Are either of these correct please?

ipsea answers

IPSEA Answers

The point in time when part 3 of the Children and Families Act 2014 starts to apply to your son depends on where you are in the process. If he has a statement and is not yet being transitioned into the new system (i.e. if on secondary transfer he is going to get an amended statement and not an EHC plan) then it is still the Education Act 1996 which applies to your son.

If however he is being transitioned now then:

  • The new law will apply to the conduct of the EHC needs assessment which is an essential part of the process of transition;
  • When a draft EHC plan is sent to you the C & F Act 2014 will apply, i.e. you will have rights under the C & F Act 2014 to make representations about the plan, request a meeting with the LA and request a type of school/college(mainstream or special for example) and the actual school/college you would like named in section I. (When you get to that point you are not confined to making a choice from the SOS approved list – you can request any school/college you think suitable is named in the EHC plan. What law applies when then deciding whether they will name it will depend on the type of placement you are requesting. At this point please read the resources on the IPSEA website and call us for individual advice.
  • Then when the EHC plan is finalised the statement will be replaced by the EHC plan and it is the new law which will apply.

Post16

My son with Down’s needs a college place to nurture his talent

I have received my 19 year old son's final EHCP and although I requested a Performing Arts specialist college, they have named a local mainstream college with a specialist provision which they say he could access. My son has Down's syndrome and is an excellent dancer - he has even won a competition and appeared on TV.

I have contacted the mediation service detailed on the letter and they have said I should go straight to Tribunal - please advise.

 

ipsea answers

 

IPSEA Answers

Firstly, it is important to note that because your son is nineteen he is regarded under special educational needs legislation as a young person. This is the case for those who are over compulsory school age – i.e. those who have finished the school year in which they turn 16 years old.

At that point the Children and Families Act 2014 gives these young people their own rights to make decisions about their education under that Act. and they must be included in all decisions and correspondence in their own right unless they lack mental capacity to make a particular decision.  Mental capacity will be assumed unless it can be shown that the young person does not have the capacity to make the decision in question.

If a young person does  lack mental capacity to make a decision on their own, then an 'alternative person' can make that decision for them.  Under the Children and Families Act the young person’s parents will automatically be assumed to be that 'alternative person unless the Court of Protection has appointed a Deputy.

Where a young person has mental capacity to make decisions, their parent can still be involved in helping them to make them, and the local authority should continue to involve them in any discussions they have with the young person if that's what the young person wants.

To bring an appeal against the EHC plan to the SEND Tribunal here, the appropriate young person appeal form must be used Here is a link to the form:

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=4725

There is the option of the young person signing the form themselves or the parent signing it for them as their alternative person where the young person lacks mental capacity.

Where a parent or young person wants a place at an independent specialist college they cannot make a request in the same way that they can for maintained schools and colleges. What they can do is make their views and wishes known by ‘making representations’ for that placement, and the LA must consider their wishes.

Unfortunately, it is not unusual for LAs to refuse to name independent schools or colleges and they usually rely on the fact that it will represent unreasonable public expenditure.

Case law suggests that if the cost differential of placements at a maintained school or college and an independent one is less than about £11,5000 per year, that would not necessarily be regarded as ‘unreasonable public expenditure’.

It is not always possible to show that the cost difference between an independent school or college and a maintained one is not significant but that doesn’t necessarily mean that an appeal will be unsuccessful. Costs are only relevant if both schools or colleges are suitable. If there is something about the provision the child/young person requires which cannot be provided by the LA named setting, then the Tribunal may well accept that the independent placement should be named as it is the only one which can meet all the child/young person’s needs.

The Tribunal hearing is an evidence-based process, so it will clearly be helpful if you have supporting evidence from professional sources that support the need for provision that is available at the preferred college, but might not be available at the LA’s maintained provision.

The EHC plan itself is also a key part of the evidence, so it becomes particularly important that the Section B of the EHC plan should set out all of your son’s SEN and that Section F specifies (and quantifies) all of the special educational provision that is necessary.

So if there are particular features of provision available at your preferred college, you would need to ensure that your son’s need for this provision, and the provision itself, are set out within the EHC plan, if necessary by suggesting and asking for the inclusion of specific wording.

It is not necessary to consider mediation before appealing if the appeal is only against section I – the name of the school or college. If you told the mediator that you want to appeal against the named college and didn’t make reference to sections B and F this may be why you were advised to go straight to appeal. However, as I have explained above, it will be important to appeal against sections B and F of the plan and that means that it will be necessary to obtain a mediation certificate first.

Parents involvement between the ages of 16-18

Parent Question:

In terms of young people (YP), as defined in the Children & Families Act and the Code of Practice, can you confirm that between the ages of 16 and 18 if the YP wishes their parent of parents to be consulted either with them or for them (for example if they have acute anxiety and can't deal with people on their own on a one to one basis or haven't built up a trusted relationship with an Independent Supporter as their input is time limited) and can convey this to a Local Authority (LA), can the LA choose to ignore this wish or have they a duty to honour the YP's wishes?

In addition, how can parents best support their young adults (18 to 25) if their wishes to be helped by their parents remain the same?  Will parents need to apply for a power of attorney or, in more severe cases, to the Court of Protection?

ipsea answers

IPSEA Answers:

A local authority must deal with parents if a young person (someone over compulsory school age - the end of the academic year in which they turn 16 years old) who has capacity to, authorises that they act on their behalf. The LA have no choice. They cannot ignore the young person’s wishes.

If the young person does not have capacity to make that authorization then, unless a local authority is corporate parent or the young person has a separate representative, parents are automatically the people making decision on behalf of their young person. Again, unless the LA has gone to the Court of Protection and obtained an order in exceptional circumstances, then they must deal with parents. There is no choice and the SEND Code of Practice 2014 makes this very clear in Annex 1. Up to the age of 18 years old a parent retains parental responsibility for any child whether or not they have SEN or a disability.

Over 18 years old, where a young person does not have the mental capacity to make decisions for themselves, parents are again automatically the people that LAs must work with unless there are exceptional reasons not to do so, or if the young person already has an alternative representative.

From the age of 16 years old a parent can apply to the Court of Protection to become a deputy for their child in relation to financial matters if there is good reason to do so, such as to handle a large sum of monies on the young person’s behalf.

Whilst deputyship applications can be made for health and welfare matters for young people over 16, these are usually only issued where there is a “live” issue or dispute with another party which needs some form of resolution.

(many thanks to Angela Jackman @ MG Law for checking my answer to this one!)

Practitioner matters

Can I record school meetings?

Parent Question:

I wondered where I stand if I want to record meetings with school/LA. To date I've not had an honest account at any meeting although I do take someone to make notes.

I have been continually told that there is a difference between in the notes taken and nothing has been done! I'm positive the school will not agree to being recorded as they seem to have too much to hide but so far it has been the word of the school is considered more reliable than that of the parent; this incorrect information is being used in official reports and I am being ignored.

ipsea answers

IPSEA Answers:

You should not record meetings with a school or the LA covertly. I suggest that first you raise your concerns with them in writing giving specific examples where things have been recorded inaccurately. Then notify them that as a result of your experiences that you will be openly recording all meetings from now on but that you will consider any alternative strategy they may like to suggest to address the issues you have raised.

Your trust in the school/LA has obviously been seriously eroded by your past experiences. They need to work on earning that trust back. Under the Children and Families Act 2014 s.19 the LA have a duty to take into account your views, wishes and feelings. Unless they have been formally notified of them – in writing - they can’t even begin to start addressing them.

Provision

ASK IPSEA: My child’s OT provision in his plan is being discontinued. What can I do?

I recently went to tribunal regarding Occupational Therapy ( OT ) provision for my son and it was agreed that this would be provided annually for the duration of my son's primary school years.

The LA and health commissioners agreed to this in front of the Tribunal judge. Three months later, following transfer to Education, Health and Care plan and at the next annual review, OT are proposing discharge of my son from their caseload.

At this point, he will only be in year three. I have written to them highlighting the tribunal outcome, which they continue to ignore. What can I do?

ipsea answers

Julie Moktadir, IPSEA CEO says:

Unfortunately, because an Education Health Care Plan is subject to an annual review, the LA is within its powers to amend the plan and to change, reduce or remove elements of the provision at that time. It is worth checking your tribunal decision carefully as we think it is unlikely that the tribunal would have ordered provision beyond the duration of 12 months for this reason. The existence in law of the annual review process effectively limits the tribunal to decide the issues on appeal to the next twelve months of a child's education.

If the LA does amend your son’s EHC plan following the annual review you will have a right of appeal against the new plan, and if you have evidence that he still requires OT it is likely that the Tribunal would order OT provision to be returned to the EHC plan.

In the meantime, until and unless the EHC plan is amended, the LA has a statutory duty to secure the provision specified in Section F of the EHC Plan (s.42 Children and Families Act 2014). There are resources about this on IPSEA’s website here: https://www.ipsea.org.uk/what-you-need-to-know/ehc-plans/final-ehc-plans-and-enforcement

We also have a model letter which you can use to complain to the Local Authority if the provision in an EHC plan is not being provided here: https://www.ipsea.org.uk/what-you-need-to-know/model-letters/model-letter-6

We should point out that we are assuming here that the OT provision has been specified in section F (the special educational provision section) of your son’s plan, rather than in section G, the health care provision. If OT is specified in section G of your son’s plan there is a duty on the responsible commissioning body to arrange the specified health care provision whilst it remains there. As there is no right of appeal against the contents of section G of an EHC plan you would need to appeal to have OT specified in section F. This is where we would usually advise therapies such as OT to be specified because of the explanation at section 21(5) of the Children and Families Act that “Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision).”

ASK IPSEA: My son’s support assistant is untrained!

My son's (mainstream) school have employed an ESA with no experience or training.

Although lovely, she does not have the tools for appropriate differentiation and his progress and behaviour are deteriorating (although not with other, more experienced, staff). This is his 5th in under 2yrs, so I don't want a change, I want to work with school to give her the support and training she needs to help her in her job. We are meeting with school: can you advise me what leverage we have to expect them to get her trained and any links or resources that might help us/them?

Many thanks - and thanks for this wonderful resource that I've only just discovered!

ask ipsea

Julie Moktadir, IPSEA CEO says:

I wasn’t sure from your question whether your son has a statement/EHC Plan or not.  If he doesn’t have one then the key legal duty would be that arising under s.66(2) Children and Families Act 2014 which requires schools to use their “best endeavours” to secure the provision required by the SEN of a pupil.   It might be useful to remind school of this duty and try to establish what support and training they can provide the ESA with to ensure that this duty is met.

It’s also important to remember that it’s not necessarily the job of the ESA to differentiate the curriculum for a child, but to deliver the differentiated curriculum created by the teacher: the school might also need to look at whether the teaching staff need support/education about your son’s needs in order to ensure he gets the right provision.

If school are struggling to provide the right support for your son and he doesn’t already have a statement or Plan, you could consider asking the LA to carry out an EHC needs assessment which is the first step towards getting an EHC Plan and we have information about that here:

https://www.ipsea.org.uk/what-you-need-to-know/ehc-needs-assessments

However, if your son has a statement/Plan then you need to consider whether the special educational provision specified in Part 3/Section F is being delivered.  If the new ESA lacks the training/expertise specified in the statement/Plan or isn’t able to do the things she is required to do by the statement/Plan, then you can involve the LA in your discussions and point out that the provision specified isn’t being delivered.  Ultimately, it’s the LA who are legally obliged to make sure this provision is delivered and it is good to involve them early on if there’s a problem.  They will also be well placed to advise on what resources for training are available.

If getting the right ESA support is proving an on-going problem, you could also think about what changes might be made to the statement/EHC Plan to ensure that this doesn’t keep happening and ask for these changes at the next annual review.  Our online resources might be useful if you’re considering this:

https://www.ipsea.org.uk/what-you-need-to-know/changing-an-ehc-plan

https://www.ipsea.org.uk/file-manager/SENlaw/FAQs-about-statements/statement-faq-18.pdf

ASK IPSEA: What happens to their support when a disabled child moves to a new area?

Parent Question

Please can you advise what happens if a young person moves to a new area with an EHC plan but the new area was not informed of the move prior.

I know that provision shouldn't stop while the new area carry out their assessment, but in this case the area was not informed, so the young person is currently not receiving their care package and it will take up to 20 weeks for a new plan. The plan received from the old area was only issued fairly recently just prior to the move.

ipsea answers

Julie Moktadir, IPSEA's CEO replies:

The fact that the new LA were not told in advance about the family’s move to their area does not mean that the new LA is not responsible. They clearly are aware that the young person is now residing in their area and that means that they are responsible for him/her.

The details of what should happen once a child / young person moves into a new area and their EHC plan is transferred to a new Local Authority, are set out in regulation 15 of the SEN and Disability Regulations 2014, which can be found here: https://www.ipsea.org.uk/file-manager/SENlaw/send-regs-uksi2014.pdf

Within 15 days of being told about the move, the old Local Authority must transfer the EHC plan to the new Local Authority, and as from that date the new Local Authority will be responsible for securing the provision within the EHC plan. This means that the provision specified in Section F and the child / young person’s attendance at the school or college specified in Section I should continue. If a family have moved some distance, and the child / young person’s attendance at the school / college named in the EHC Plan is “no longer practicable”, then regulation 15(6) allows the Local Authority to arrange for them to attend a different school / college. This might not be the school / college of the young person’s choice, but in the short term, the Local Authority would simply have to offer a suitable school or college place to allow the education to continue. They would, however, then have to take steps to change the EHC plan, so that it no longer named the school / college in the ‘old’ Local Authority. At that point, a parent or young person would have a right to request a particular school / college to be named. In all cases (including where the move is only a short distance and the child / young person is able to continue attending the same school / college), the new Local Authority must serve a notice within 6 weeks of the transfer of the EHC plan, informing the parent/young person that:

  • the EHC plan has been transferred;
  • whether they propose to make an assessment, and
  • when they propose to carry out a review of the EHC plan (they have a duty to carry out an annual review of the EHC plan within 12 months of the last annual review or within 3 months of the EHC plan transferring – whichever comes later).

It is certainly not an absolute requirement for the new LA to carry out a EHC needs assessment and it is worth noting that Regulation 15(3)(b) makes it clear that where the old Authority supplies advice from a previous assessment, the new Authority must not seek further advice where the person who wrote the advice, the old authority and the parent/young person are all satisfied that the advice is sufficient for the purpose of a new assessment. This prevents the new Local Authority re-assessing and seeking new professional reports unnecessarily.

Your question makes reference to a ‘care package’ and the information above relates to the educational provision specified in the EHC plan. We are not clear from your question, what type of ‘care’ package you mean.  The SEN regulations do contain provisions in relation to the transfer of responsibilities between bodies responsible for commissioning health care provision, and these address what should happen if the young person is moving to a new area with a different commissioning body.  They make it clear that where it is not practicable for that new commissioning body to arrange the health care provision specified in the EHC plan, it must, within 15 working days beginning with the date on which it became aware of the move, request that the new local authority makes an EHC needs assessment or reviews the EHC Plan, and where the new local authority receives such a request it must comply with that request.

However, we think it might be a social care package to which you are referring, and if this is the case, then  it is worth noting that the Children and Families Act does not impose a duty on LAs to secure the social care provision in section H of a plan. The duty to arrange that provision derives from the underlying legislation (CSPDA 1970 in relation to children) or the Care Act 2014 for young people over the age of 18. We do not know how old the ‘young person’ is from your question, but if they are 18 or older, then then there are specific regulations made under the Care Act setting out what should happen to ensure that ‘continuity of care’ is preserved for a young person moving in this way.  There are factsheets on the Care Act here: https://www.gov.uk/government/publications/care-act-2014-part-1-factsheets/care-act-factsheets

Factsheet 9 addresses the ‘continuity duty’ which will mean that even if a new local authority was not notified of a person moving into their area, and haven’t completed their assessment of their social care needs, they must continue to secure the provision which was previously being provided by the ‘old’ local authority, until that assessment has been completed and a new care plan issued.

There are no specific regulations for provision transferring in the same way for a child receiving social care provision, but we would expect the new local authority to offer social care provision to a child in there area who had previously been receiving such provision (although again, they may well choose to carry out their own assessment to determine whether the nature of any ongoing social care provision which would be offered.)

How can I obtain the appropriate SEND support for my child?

The LA conceded to the tribunal 3 years ago. Since then no support, no EHCP and no help.

The child was bullied at mainstream school and was undergoing tests for autism, although had a diagnosis' of dyslexia

At the same time as the SEND tribunal a 2 year disability tribunal , failure to make reasonable adjustments for dyslexia , could not read the blackboard the tribunal ruled that the child was disabled but the mainstream school did not have a duty to (help) diagnose the child and the child was "choose to sit the spelling" therefore did not discriminate against the child .

Both the tribunals accepted the LA Educational Psychology (EP) report stating the child did not have dyslexia and the parents reports stating he did. The LA harassed parents for a second LA EP report, so they could change their report during the 2 year disability tribunal. The disability appeal was refused and the  SEND appeal was ignored. Please help.

ipsea answers

Julie Moktadir, IPSEA CEO says:

I’m afraid it is difficult to offer you relevant information or advise you without more information but, if you believe that your child is unable to access education because he needs a very high level of support, and he does not currently have an EHC Plan, then the way forward would probably be to make a new request for an Education, Health and Care needs assessment. As you probably know, a parent or carer can make a request for an EHC needs assessment, the process that leads to an EHC Plan being issued. It is not necessary for a child to be attending school to qualify for an EHC needs assessment and the request itself does not need to be made in a particular form. The simplest way to make a request for an EHC needs assessment is simply to write to the local authority.

We have a model letter that could be used for these purposes, which can be found here:

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

It is important to remember the legal test the local authority must apply is section 36(8) of the Children and Families Act 2014 (the Act):

“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.”

The test is simply whether the child or young person may have SEN and that it may be necessary for the special educational provision to be made for the child or young person in accordance with an EHC Plan.

We think it would be helpful if you could speak to one of our trained advisers so recommend you follow this link to find out how to do this: https://www.ipsea.org.uk/contact/advice-and-support/advice-line

How can I stop the reduction in my son’s Occupational Therapy provision?

My son's Occupational Therapy department tell me they want to reduce the five hours per term support on my son's statement to two hours per term because the five hours is 'not working' and they want to integrate OT into school provision.

I don't agree with this - if they want to change provision then I think they also need to monitor whether this is helping and suggest adaptations, particularly as their previous approach was 'not working'. I have an independent report coming which says that his OT provision should increase to 10 hours/term. What muscle do I have in resisting a reduction of hours at his annual review?

ipsea answers

Julie replies:

It sounds as though there may be two conflicting OT reports to be discussed during the upcoming annual review of your son’s statement.  The statutory process of annual review should give ample opportunity to ensure that all the advice is circulated and the evidence for any changes to the statement is considered.

The legal process gives you the “muscle” to ensure that any changes to the statement are evidence based and everyone’s views are considered.

It will be important that the advice from both professionals is circulated by the head teacher before the annual review meeting.  You can also ask the head teacher to invite the professionals to the meeting.

The meeting should focus on discussion about your son’s needs, his progress (or, if things are “not working”, a lack of progress) and recommendations for changes to the statement.  These discussions (and any difference of opinion) should be reflected in that report which will be sent, with the information and advice provided to the meeting, to the LA.  If you’re not happy with the report you can send your own views separately.

Then the LA decides whether to maintain the statement, to cease to maintain the statement or to amend the statement.  These decisions will be sent to you.  If the decision is to leave the statement as it is, you would have a right of appeal to the Tribunal.  If the decision was to amend the statement, you’ll have the right to make representations about the amendments and ask for a meeting with the LA to discuss them if you want one.  Then the LA will finalise the amended statement and, again, you’ll have a right of appeal.

I need help to get the school to enforce a statement

Parent Question:

What do I do when child (16) in 6th form has a statement and yet school are seemingly disregarding it, giving him no support and just 12 hours of education a week? Where can I turn to ensure they meet they statutory obligation to support him.

ipsea answers

IPSEA Answers:

A statement is a legally binding document on an LA to make the special educational provision in it. Ultimately they can be challenged legally for failing to put that provision in place. However, the first question is to look at his statement and make sure it actual specifies what he is supposed to receive by way of support. Too often statements have been written in vague ways which do not give schools clear indications as to what needs to be put in place using words such as “opportunities for”, “regular”, “as required”– weasel words.

Using the statement, identify what provision he should be getting but is not. Then call a review of the statement – this can be the Annual Review if it is due soon or an interim review. If the school won’t hold a meeting write down all your issues and send it to the LA and the school making clear that you are aware that it is the LA’s duty to arrange the provision in Part 3 of the statement. Explain your concerns and the fact that the provision is not being put into place and ask for clarification as to what action the LA will take to get the school to do it.

You may also want to ask what programme of learning he is on and whether this is ambitious enough or suitable for him if it is being provided by only 12 hours a week actually at school. Such an attendance usually relies on pupils doing a great deal of work on their own, and if his difficulties mean that he can’t manage such independent learning, and these are recognised in the statement, you and he have real grounds for complaint. The SEND Code of Practice 2014 at paragraph 8.41 talks about the need for a Local Authority to provide a full package of support across 5 days for those with an EHC plan.

Depending on the result of this meeting/letter you will either have your solution or you will need to get further advice. Contact us via www.ipsea.org.uk

Provision hours for 1:1 support

Parent question:

Please could you advise how many hours 1:1 support you would expect a child with a statement, 22.5 hours to get. My son currently gets 15 hours 1:1 with an LSA, the rest I am told is for resources and small group work.

This seems a little unreasonable to me.

ipsea answers

 

IPEA Answers:

The devil is in the detail!

You need to read very carefully what the wording providing for 22.5 hours actually says. Too often a statement – and I suspect in the future an EHC plan - will have wording something like this: “22.5 hours of individual, small group and whole class support”. This is not the same as “22.5 hours of individual 1:1 support from his own Learning Support Assistant”.

I suspect that when you check it, your wording says something like the first. If you feel your child needs more individual support than they are receiving then talk to the school, look at the evidence you have as to what progress he is making and call an early review to request the wording is amended.

What should I do if the school do not provide a graduated approach?

Parent Question:

What should I do if the school do not provide a graduated approach? The number of TAs in the school has been reduced over time and the Senco says he has not been given any funding to provide specialist support in school.

ipsea answers

IPSEA Answers:

I am presuming that your child has been identified as having SEN but at this stage that the school are able to support them from their existing resources i.e. expertise and funding for the special educational provision they need. This level of support is now called “SEN Support” and replaces the “School Action/School Action +” stages of support under the old system. The question is whether your child is getting the right support for his or her needs. To assess this the school – in partnership with you – need to be clear what special educational needs your child has, what special educational provision the school believe needs to be put in place to support those needs and the expected outcomes from the delivery of this provision over varying timescales. The new approach to doing that is detailed in the SEND Code of Practice – chapter 6 is relevant for schools – and is a four stage process of 1. Assessing a child’s needs; 2. Planning provision/identifying outcomes 3. Doing it i.e. putting it into place and then 4. Reviewing what has happened. Your school should record this process as part of an SEN Support Plan they must have drawn up with you and must review with you at a meeting at least 3 times per year.

If your school are no longer providing the SEN provision that your child needs put in place then it may well be time for them and/or you to request that the LA carries out an EHC needs assessment. If this resulted in a EHC plan being issued the LA would have the legal duty to make the provision i.e. fund the school to make it. You need to meet with the school to discuss the SEN Support Plan particularly the outcomes to be achieved. If your child is making little or no progress then it could be time to trigger that EHC needs assessment – the IPSEA model letter will guide you in doing that.

Who is legally responsible for making sure what is in the EHCP is implemented?

A parent asks:

Who is legally responsible for making sure what is in the statement/Education, Health and Care Plan is implemented?

What is the legal claim on when it is not? I know it is not Educational Malpractice because that does not include legislated legislation (Statement/EHC) I was told it is most likely Personal Injury -  is that so?

Where is the precedent located, which case, for any breach of Statement vs. an SEN?

ipsea answers

IPSEA answers

The LA is responsible for securing provision in the EHC plan in accordance with s.42 of the Children and Families Act 2014 or s.324 of the Education Act 1996 for a Statement.  When a local authority fails to comply with its legal duty to make the provision specified in the EHC plan or Statement, the parents or a young person can make an application for Judicial Review.

An application for Judicial Review must be made by a solicitor to the High Court for breach of  statutory duty. Firms with public law Legal Aid contracts are able to bring cases for Judicial Review for those who are financially eligible. For information about legal aid, see http://www.justice.gov.uk/legal-aid

Judicial Review is the way that courts supervise how public bodies exercise their powers. It is not available as a remedy where there are effective alternative remedies. The court does not decide the merits of a particular case in a judicial review or replace the decision of a public body with theirs. They consider, instead, how the public body carried out their duties and check that decisions were lawful.

It is therefore necessary to ensure that the Statement or EHC plan is clear and specific to claim that there has been an unlawful act by the LA in their failure to provide the provision as stated.

Transfer to EHCP

How can I back up my wish for a particular school for my child with special needs?

My son is in year five primary in a mainstream school. He has his transition review/ annual review. He has Down syndrome and is currently on the waiting list to be assessed for possible ADHD and or ASD. He has a SEN Statement. He will be having his transfer from Statement to EHCP starting in October 2016.

I have viewed three possible secondary school placements for him for September 2017. Two schools out of borough and one school in borough. I am still waiting to be contacted by one school in borough. My gut feeling and from viewing these three schools I do have a preference but it is out of borough, but how do I convince my LA that this will be the best place for my son?

They were the only school to give me any literature on the setting, they are using Wiki's, my son has a Wiki. My son is a twin and his twin sister will go to mainstream secondary. Whilst I did like the other schools I have visited; I felt that the one in borough was geared up for children with more physical difficulties and the one outside of borough just had a feel of a more residential setting than a school.

The school I like will offer my son everything he needs from his education, health and social care, the curriculum is balanced to his needs and there seems a greater enthusiasm to challenge my son's development. The other school, in-borough, who have not replied to me, has had tribunals and appeals stating that it is not the best suited school for children with Down's syndrome, although children with DS attend, I just know that my LA are going to suggest that my son stays in borough.

I am looking for a set of questions that I can use to help evidence my concerns and build a strong case as to why my son should attend an out-of-borough school. I want to be prepared when I have to fight the LA, as I know from many other parents, that is what they have had to do. Thank you for listening.

ipsea answers

Julie replies

Firstly, it is important that you keep an eye out for the formal transition notification the local authority (LA) must send you in order to formally start the process to transition from the statement to the Education, Health and Care Plan (EHC Plan) as this triggers the time limits in law by which the process must be completed.

As your son will be transferring to secondary education September 2017, the LA is under a legal duty to finalise his transition to a EHC Plan by the 15th February 2017. As the transition process in law can take up to 20 weeks this means you should be receiving your formal notification no later than mid September 2016.

In law, a transition is a EHC needs assessment. Once this is complete the LA will issue a draft EHC Plan if they consider a EHC Plan is needed. At the draft stage you have a right in law to state a preference for a particular school to be named so long as it is a ‘type’ referred to in section 38(3) of the Children and Families Act 2014 (C&F Act 2014). The ‘types’ a parent or young person can state a preference for are maintained schools (both special and mainstream), academy schools (both special and mainstream), non-maintained special schools and independent schools who are approved under section 41 C&F Act 2014.

If the school you want is one of the ‘types’ above the LA must name it unless they can prove one of the reasons listed in section 39(4) C&F Act 2014 applies. These are: the school is unsuitable; the attendance of the child or young person will result in the inefficient education of others or the inefficient use of resources, i.e. it will cost much more. These are the only reasons they can use to say no.

They cannot say no just because the school you want is out of borough. You mentioned that the school you want is using ‘Wiki’s’ and that your son is currently using this. It will be additionally important to ensure that Section B of the EHC Plan accurately describes each and every one of your son’s SEN and that Section F properly specifies and quantifies all of the special educational provision your son requires, including the Wiki.

If the LA fail to name the school you want in the final EHC plan the decision is appealable to the SEND Tribunal, as well as appealing Sections B and F.

You are early on in the process and it is important to seek advice as and when you need according to how your situation develops.

How to make a draft EHCP legally enforceable

Parent Question:

My daughter, who is 16, has a draft EHCP. The LA have issued transition arrangements for Children & young people with Statements, but make no reference to those with draft EHCP's. What should the LA be doing to make the draft a legally enforceable EHCP?

ipsea answers

IPSEA Answers:

Does your daughter have a statement of SEN (as well as the draft EHC plan)? If she does then she will transfer to a “legal” EHC plan – once an EHC assessment has been carried out - in accordance with the timetable in your LA’s transition plan.

If she does not have a statement of SEN then the Statutory Guidance on transition issued by the DfE makes it clear that those with a non-legal (i.e. illegal) EHC plan must be a priority group for this first year to go through an EHC needs assessment and be issued with an EHC plan. Read the briefing that we have written at IPSEA on transition http://www.ipsea.org.uk/what-you-need-to-know/transition and then write to your LA and ask them when they intend to start this process. If it is not clear when you receive your reply then please contact IPSEA for individual advice.

My son’s EHCP has taken so long, how can we get a final EHCP?

The LA has carried out an EHC Assessment for our son and has agreed that an EHC Plan is required. However, it is taking an inordinate amount of time for the plan to be finalised and issued (it is now more than 40 weeks since the request for assessment was made). Whenever we raise the issue with the LA there is a flurry of activity and then everything grinds to a halt again.

 

Could this be regarded as a de facto refusal to make an EHC Plan even though a draft exists? What recourse do we have as appeals to the Head of Children's Services end up back with the SEND Department and inactivity?

ipsea answers

Julie Moktadir, IPSEA CEO says:

 

It would appear the LA is in breach of its legal duty. Although there is no legal time limit specified by which the LA must issue the draft EHC Plan, Regulation 13(2) of the Special Educational Needs and Disability Regulations 2014 states that the LA is required required to send a copy of the finalised EHC Plan as soon as practicable, but in any event, within 20 weeks of the local authority receiving the request for a EHC needs assessment. There are very limited exceptions to exceeding the time limit and 40 weeks appears incredibly excessive. If a draft exists, it is unlikely that you could regard the LA’s inaction as a refusal to make an EHC Plan.

 

Although you have already raised this issue with the LA we would suggest you do this using IPSEA’s model letter which can be used in these circumstances. You can find the letter by clicking on this link. If you do not receive a satisfactory response to your letter you could contact Civil Legal Advice with a view to exploring whether you or your son could take action against the LA for the breach of legal duty using legal aid. More details and how to contact them can be found here.

The council want to transfer my 18 year old son to an EHCP, but he has no school

A parent asks

I am a parent of a 18 year old who has an SEN, but has been excluded from independent school since May 2015 with the full knowledge of LA and has not been provided education since.

My son's Statement of Special Educational Needs exists, has not ceased to be maintained, still in force and no provision of part 3 of the Statement of Special Educational Needs has been made since he was excluded. I have advised LA this is unlawful. My LA are dismissing the fact that they have not provided education for one year but want to arrange a transfer meeting to start process changing over to EHCP. I have said that LA should make arrangements to provide as per my son's statement first.

The independent school should not have excluded my son but likewise my LA to withdraw his placement leaving him in limbo without any education for one year without accounting for their actions. 

ipsea answers

IPSEA answers

The first question to ask here is what outcome are you looking for? Does your son want to return to a similar school or post 16 placement?

Under your son’s current statement, the LA has a duty to ensue he receives the provision specified in Part three, but beware: a statement of SEN can only provide support whilst he is in a school placement and the fact that he is 18 years old and over compulsory school age - the end of the academic year in which a child turns 16 years old - will mean that it is very unlikely that the LA will amend it to name a different school now. It could even be argued by the LA that the statement has lapsed and that they no longer have a legal duty to make provision for him

You should start the transition to an EHC Plan as soon as you can. As he currently has a statement this will mean that the LA have to carry out an EHC assessment of his needs and decide if they are going to issue an EHC Plan for him. If the LA issue an EHC Plan this will ensure that he continues to be entitled to special educational provision and will name a new educational placement for him potentially up to the age of 25 years old, which can include a place at an FE College or an apprenticeship. It is clearly not right that the LA has not made provision for him for the past year, but do not lose the opportunity to transition to an EHC Plan now.

You should contact the LA and say you want to start the process of transitioning to an EHC Plan at once.

Who is responsible for purchasing my son’s disability equipment?

My son is 16 and in last year of secondary. We are in the process of transferring statement to EHCP.

We have a temporary Physio covering maternity leave.

My son has recently outgrown his standing frame and the Physio says, medically he does not need a standing frame, she wants him to stand in his walker in English or maths. This decreases his hand function. His walker is banned from the cookery class as is a H&S risk.

I have a 2012 private Physio report and a 2015 NHS Physio report, both say he needs to stand in a standing frame for 50 minutes a day, he also has a Physio and walking program to follow. All quantified in part 3 of his statement. The private Physio stressed that skills could be lost as he goes through puberty if this is not done.

The private Physio emailed the LA and SENCO on Saturday, stating that she had viewed the photographs and video I sent her of my son in his walker. She recommends that he still needs a standing frame to access the curriculum fully.

The LA would agree to buy a standing frame but of course cannot because the current Physio will not recommend it.

I have heard nothing from anyone concerned.

What would my next step please?

I have refused to accept the EHCP as it is.

ipsea answers

Julie Moktadir, IPSEA CEO says:

From what you’ve told me, your LA seems to have misunderstood their legal duty under s.324(5) Education Act 1996 during transition.  Whilst the process of transition is taking place, the current statement of SEN still has effect in law.  This means that if the provision of a standing frame is specified in Part 3 then, no matter what the physio says (and no matter what discussions are on-going about the draft EHC Plan), the LA must ensure that this is provided.

IPSEA has a model letter you can use to complain when the LA is failing to arrange the provision in the statement and it’s found at “Common Problem 6” here:

https://www.ipsea.org.uk/file-manager/SENlaw/FAQs-about-statements/common-problems-and-model-letters-relating-to-statements-of-special-educational-needs.pdf

When you get a draft EHC Plan you have the right to make representations about its content.  You are right to ask that your son’s need for the standing frame is included in Section B of the EHC Plan and both the provision of the frame itself and the programme of therapy to support your son’s physical training with it is included in Section F (specified and quantified in the same way that it currently is in Part 3).

If there’s a disagreement between professionals as to what your son’s needs are and what provision is required to meet those needs, then the LA needs to get further information and advice to try to resolve this. However, it seems here that the LA agrees with the private therapist and the NHS report from 2015 but the fact that the temporary physio won’t authorise it (and, presumably, pay for it) is the real problem.

Ultimately, as was the case with statements, the LA’s duty is to specify and quantify all of the special educational provision required by your son’s SEN in Section F of the EHC Plan.  You can certainly remind the LA of this duty (s.37 Children and Families Act 2014).

It’s also worth remembering that the local partners in your area are obliged to work co-operatively with LAs in carrying out their duties under Part 3 of the Act.  A failure to do so might be something that OFSTED and the CQC are interested in addressing when they carry out their Local Area SEND Inspections:

https://www.ipsea.org.uk/news/2016/briefing-on-local-area-send-inspections

If the LA won’t agree to specify and quantify certain provision then you would be able to appeal to the SEND Tribunal once you have the final EHC Plan.

Transport

Are there guidelines for SEN transport?

Parent Question:

Are there guidelines to stress free home/school transport for SEN children?

ipsea answers

IPSEA answers:

There is statutory guidance to the provision of home/ school transport which you can find on the IPSEA website http://www.ipsea.org.uk/what-you-need-to-know/home-to-school-college-transport

It does not however define what “stress free” is. This needs to be identified in the context of an individual child’s needs as what is stressful to one may well be relaxing to another! If the description of your child’s needs are accurate in their statement/EHC plan this should help identify triggers which would make it stressful.

SEN Transport is causing anxiety!

Parent Question:

What happens if a statemented 8yr child refuses to go on transport to school because of negative experiences causing severe anxiety? What are the responsibilities of the LA and setting? Is no education provision since June acceptable?

ipsea answers

IPSEA Answers:

This is a question that requires answers to further questions before you can be advised so please call IPSEA.

But remember that an LA has a duty to provide a full time education for a year 8 child and provide free home to school transport to their nearest suitable school if the child is an an eligible child – there are various different ways to qualify but children with SEN and disabilities who have mobility problems such that they could not reasonably be expected to walk to school on their own will qualify. The school named in your child’s statement or EHC plan if they have one is accepted as the nearest suitable school by your LA unless they have entered into an alternative arrangement with you. Free home to school transport is not just available for those who have statements or EHC plans.

The transport arrangements made have to be stress free and safe. If the negative experiences the child has experienced have been around previous transport arrangements then this needs to be carefully looked at, assessed and a suitable alternative put in place. Whatever the cause of the delay not receiving an education since June is not acceptable. Please seek advice quickly.