Can an LDA transfer to an EHCP without completing a EHC assessment?

My 18-year-old son is at college. In the middle of transferring his LDA to EHCP. A man appears to be writing the draft, no assessments been done, no communication from the LA at all and no first letter. Nothing at all.

Apparently, the draft has been sent to the LA and Inclusion Manager at the college.  The Inclusion Manager informed me that she has contacted the Educational Psychologist, for an assessment but heard nothing yet. The Inclusion Manager is going to  complete a full assessment of his learning needs and then provide me with a  report.  In addition, she will complete section F then send it to LA and the LA will then send my son his EHCP. Is this legal?

Marguerit replies

Marguerite says:

Regulations:

The Children and Families Act 2014 (Transitional and Saving Provisions)  (No.2) Order 2014 is the set of specific regulations dealing with transition. Amended in August 2015 by the Children and Families Act 2014 (Transitional and Saving Provisions) (Amendment) (No 2) Order2014 to make a change to the transitional time line. Referred to as the TP Regs.

Guidance:

The Department for Education issued departmental advice on transition. The current version then is the one issued in September 2015 and it is called“Transition to the new 0 to 25 special educational needs and disability system: Departmental advice for local authorities and their partners".

The answer is No! Young people who have an LDA are entitled to ask for an assessment under the C & F Act 2014, recognising the different level of legal protection offered by an EHC plan as compared with an LDA, i.e. the new law applies to them now.

For young people with LDAs, the transition process must have been completed by 1 st September 2016 as any LDAs remaining after this date will cease to have any legal effect. However, Stuart Miller, from the DFE wrote to the LA's and extended this deadline until December 2016. A key part of the procedure for transition is the duty of the LA to give notice that the EHC needs assessment is to begin–the LA has to give two clear weeks’notice. The process should take 20 weeks which includes the notice period.

A key part of the procedure for transition is the duty of the LA to give notice that the EHC needs assessment is to begin–the LA has to give two clear weeks’ notice.  You can obtain further information about the EHC assessment here.

There is some confusion about the entitlements of young people with LDAs but the TP Regs makes the position clear. LAs will have their own timetable for transition  and this will include young people with LDAs. However the fact that a particular LA has in mind to transition their young people by (say) 2016 is not a legal reason for the LA to say No if a young person requests an EHC needs assessment earlier than that which they are entitled to do. If the LA does say No, the young person will have a right of appeal to the Tribunal.

IPSEA has produced a timeline which you can download from here. This explains the timeline for the transition process from a statement or an LDA to an EHC plan in more detail.

You can also complain to the Director of Children's Services when the LA does not seek the advice required by law as part of the EHC needs process. IPSEA have produced a model letter which you can download from here. If you don't receive a reply after 2 weeks you can contact IPSEA for further advice.

If the LA issues a final EHCP to your son without following the legal process contact IPSEA Tribunal helpline immediately.