Parent Asks:

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

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

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

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

IPSEA Answers:

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

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

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