Parent asks:

I have requested the council undertake assessments relating to my daughter's sensory needs and fine motor skills through an Occupational Therapist (OT). My daughter's paediatrician identified a multitude of sensory needs and referred her for sensory OT input but they do not have a service currently for my daughter's age. My health visitor has referred her for a fine motor skills assessment but waiting lists are delaying this.

I have told the council they have a duty to undertake assessments I have made a reasonable request but if they can tell me why it is unreasonable I will be satisfied, after many emails where they said they did not have a duty to undertake assessments. They refer to their own send toolkit requiring a graduated approach meaning referrals to be made in which needs are identified but do not go on to state what happens when there is no service for a referral. They also state that they refer to the tool kit regarding a judgement call required by the local authority. There is no guidance as to what is determined as ‘reasonable’ or not, however, local authorities are not required to commission assessments, the duty is for approaches to be made regarding advice and information.

Ipsea Answers:

The short answer is ‘yes’ the local authority (LA) should be conducting a comprehensive assessment of your daughter’s needs. We assume that your question relates to assessments taking place as part of an EHC needs assessment. The EHC needs assessment process is the legal procedure for identifying all the SEN and special educational provision required.

If needs are not fully identified at this stage and the assessment results in the LA issuing an EHC plan, the EHC plan is unlikely to be sufficiently drafted due to the inadequate assessment process.

From your question, it appears that you are already aware that the local authority (LA) must seek advice from a range of people when undertaking an EHC needs assessment. The list is set out in Regulation 6(1) of the Special Educational Needs and Disability Regulations 2014 (the “SEND Regs”) as follows:

1. the child’s parent or the young person;
2. educational advice (usually from the head teacher or principal);
3. medical advice and information from a health care professional;
4. psychological advice and information from an educational psychologist;
5. advice and information in relation to social care;
6. advice and information from any other person the local authority thinks appropriate;
7. where the child or young person is in or beyond year 9, advice and information in relation to provision to assist the child or young person in preparation for adulthood and independent living; and
8. advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from.

The LA is legally required to seek all of this information as a minimum.

You mentioned that your daughter is under the care of a paediatrician and is also known to the health visitor. In relation to point (c) above (medical advice), the expression “health care professional”, is defined in SEND Reg 2(1): “an individual who is a member of a profession regulated by a body mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002”. This is quite a broad list which means that the medical advice does not strictly have to come from a doctor. In addition, this requirement certainly does not require the LA to seek advice from all the medical professionals giving support to a child with SEN or a disability or from whom the child or may need support.

However, if you would like the LA to seek advice from particular medical professionals then you could consider using the right to reasonably request advice from another person under point (h). In your case, this could include advice from a suitably qualified occupational therapist in relation to both fine motor skills and sensory needs. The obligation to carry out the assessment is on the LA but there are corresponding obligations within the SEN Regs which require the bodies from whom the LA requests information to comply within six weeks (Reg 8). So in relation to the referral for assessment of fine motor skills, the fact there is a waiting list does not relieve the responsible commissioning body of its duty to provide the advice within six weeks of it being requested as part of an EHC needs assessment. It would be very difficult for the LA to argue the request to seek advice from Occupational Therapy is unreasonable just because there happens to be a waiting list or indeed because there is not a service locally for your daughter’s age group, as these issues are irrelevant to the request.

You could also provide the LA with any reports and letters of referral that have been provided by health professionals up to this point. This will help support your position that seeking advice from suitably qualified occupational therapists is a ‘reasonable request’ on your behalf. Objectively, a request should be considered reasonable where, for example, a child or young person has been identified as needing an assessment already and they are on a waiting list, or where the school, college or other professionals have said this advice may be needed. Once the LA are aware of potential ‘needs’ it should follow that the EHC needs assessment investigates such needs with a view to specifying needs, provision and outcomes for a potential EHC Plan as required by SEND Reg 6.

It is always best to put your request in writing (either in a letter or an email), so that you have a record of your communication about the assessment. If the LA do not agree to a reasonable request to seek advice and information from a particular professional (or if they have failed to gather advice from all those listed in SEND Reg 6(1)), you should complain using the LA’s formal complaints procedure. The IPSEA website includes free resources you can access and use including a model letter you can adapt in this scenario where the LA is in breach of legal obligations.

It can also be useful to remind the local authority of their additional responsibilities during the assessment process. SEND Reg 7 contains a list of obligations about the way in which an EHC needs assessment is to be conducted, all of which are around engaging with the parent, the child or the young person concerned. This regulation shows the impact of section 19 of the CAFA 2014 (the general principles to which the LA must have regard in exercising their functions, all of which are about supporting and involving children and young people).