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?
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.