Parent asks:

Following the SEND Tribunal, the LA have been ordered to do the needs assessment. However,  the LA state that the EHC needs assessment will be without Occupational Therapy (OT), as the waiting time is outside of the statutory needs assessment time. They say they will add it in later and are also say following assessment my child may not be provided with an EHC plan.

Can I request and insist the LA obtain the OT assessment by other means (external agency) so it is included in time for the EHC plan panel decision?

IPSEA Answers:

The SEN and Disability Regulations 2014 state that the local authority (LA) must obtain information and advice from such persons as you reasonably request (Regulation 6(1)(h)): and it may well be reasonable for you to ask that information and advice is obtained from an occupational therapist e.g. where a child has or may have sensory processing difficulties or where they have difficulties relating to motor coordination.  The LA must also seek information and advice from any person that it thinks is appropriate (Regulation 6(1)(f)).

From what you’ve written, It’s not clear that your LA is refusing to obtain information and advice from an occupational therapist because it’s not appropriate or it’s unreasonable for you to ask – but rather because there’s a waiting list.

This problem is solved (in theory) by Regulation 8 which says that: Where a local authority requests the co-operation of a body in securing an EHC needs assessment in accordance with section 31 of the Act, that body must comply with such a request within 6 weeks of the date on which they receive it.  It may be that both your LA and the occupational therapy service need to be reminded of this duty.

If information and advice from an occupational therapist is sought by the LA and the body in question won’t comply (or won’t comply within the deadline) then it would seem appropriate for the LA to seek such information and advice from outside the NHS/CCG. Certainly this was the view of the LGO in upholding a complaint recently:

http://www.lgo.org.uk/decisions/education/special-educational-needs/15-011-838

It’s always the case that just because the LA has carried out an EHC needs assessment doesn’t necessarily mean an EHC plan will be issued.  Once all the information and advice is gathered, the LA has to make a decision about whether or not a plan is necessary (s.37 Children and Families Act 2014).  If it refuses, then you will have a right of appeal if you disagree with the decision.

It’s worth making a note of the deadlines that apply where the Tribunal has ordered that the LA carry out an EHC needs assessment following an appeal.  You must be notified within 10 weeks of the Tribunal’s Order if the LA decides it’s not necessary to issue an EHC plan and you must receive a final EHC plan, if they decide it necessary, within 14 weeks of the Tribunal’s Order (see Regulation 44(2)(b)).