My son is 16, due to start college in September. The education psychologist recommended he has lots of help put in place, including travel assistance, a tablet or computer, and a trusted person. I had mediation with LA. They refused an EHCP on the grounds of not enough evidence from the school.

Home educating now and every tutor has documented poor handwriting, slow response, needs things repeated etc. LA rep suggested he has ADHD!

He gave me a sort of contract to show any college he needs level 2 funding, but wouldn’t issue Ehcp. Can you advise where I stand, please? I think he needs EHCP to fund GCSEs which he wants to do, as well as college (2 days a week).

IPSEA replies:

When an EHC needs assessment is requested, the LA has six weeks to decide whether to carry out an assessment or not. This decision is made using the legal test set out in s36(8) of the Children and Families Act 2014 (CFA):

The local authority must secure an EHC needs assessment for the child or young person if… 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.

It sets a relatively low threshold for assessment and at this point there is no need to evidence that your child definitely does have SEN or definitely will need an EHC plan, just that there is a possibility that they will. If the LA refuses to assess, then you have the right to appeal to the SEND Tribunal once you have a mediation certificate. The deadline for appeal is two months from the date of the decision or one month from the date of the mediation certificate, whichever is later, and you will need to use the SEND35a form which is available here: https://www.gov.uk/government/collections/special-educational-needs-and-disability-tribunal-forms.

You can download IPSEA’s Refusal to Assess pack here which explains the process for this type of appeal: Refusal to assess appeals | (IPSEA) Independent Provider of Special Education Advice.

Once an LA has carried out an EHC needs assessment, it must decide using the information gathered as part of that assessment whether it is ‘necessary’ for an EHC plan to be issued and maintained (s37 CFA). This decision will be based on the details in the professional reports and other evidence regarding the child’s special educational needs and the required special educational provision to meet those needs. The LA will also consider whether the child’s educational setting will be able to provide the special educational provision from its own resources.

If the LA refuses to issue an EHC plan, then you have the options of mediation and appeal to the SEND Tribunal. Once you have obtained a mediation certificate, you can submit an appeal to the SEND Tribunal. The deadline for appeal is two months from the date of the decision or one month from the date of the mediation certificate, whichever is later, and you will need to use the SEND35 form which is available here: https://www.gov.uk/government/collections/special-educational-needs-and-disability-tribunal-forms.

As your son is now over compulsory school age, the appeal should be brought in his name and he may be eligible for legal aid in his own right. You can find information about how to check this and other options for support with your appeal here: https://www.ipsea.org.uk/where-can-i-get-help-with-making-an-appeal.

For more information about appealing a refusal to issue decision, you can download IPSEA’s Refusal to Issue pack which explains the process in more detail: https://www.ipsea.org.uk/appeals-against-a-refusal-to-issue-an-ehc-plan.

In the meantime, the college has duties to support your son and provide SEN Support, so we would suggest that you arrange a meeting with the person responsible for SEN at the college (similar to a SENCO) as soon as possible to discuss your son’s needs and how they will be supported. You can find more about the college’s duties here: https://www.ipsea.org.uk/how-your-nursery-school-or-college-should-help.

In addition to this, there is no requirement to have an EHC plan for funding for your son to attend the college to take GCSEs. Guidance for further education funding states that:

‘The study programme must be tailored to the prior attainment of each student, have clear study and/or employment goals reflecting the student’s prior attainment, show progression in learning...’

Therefore, GCSEs can be funded through usual 16-19 funding for pupils where this would show a progression in learning and takes into account prior attainment. Your son’s college should be able to discuss this with you and may have information on their website. You can find the full guidance here: https://www.gov.uk/guidance/16-to-19-funding-how-it-works#funding-formula-and-study-programmes.