When applying for an EHCNA can we ask the LA to consider our EP report?

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When applying for an EHCNA can we ask the LA to consider our EP report?

Parent Asks:

Hello my son is 8 years old and has ASD with possible ADHD, undiagnosed communication difficulties, possible dyspraxia and dyslexia.  We are waiting for specialist teachers to change from communication to the learning and cognition teacher assessment.  Waiting for QB test with ADHD team (CAMHS).  We are also on the waiting list for him to be assessed by an OT.

We are considering paying for an educational psychologist to assess my son, who was refused an EHCP in March 2022.  We didn't appeal because the school was going to document more information regarding his daily need, which hasn't been completed. If we pay for an educational psychologist, would we still need an assessment during the EHCNA process, or would they accept this report, hopefully getting us through the process quicker?

IPSEA Answers:

When answering this question, I will assume that your son is not attending a wholly independent school as these do not have the same duties towards pupils with SEND. If your child is attending a maintained school or an Academy, then he should be receiving SEN Support via the school’s SEN budget. As part of SEN Support, the school can and should access support from outside professionals where necessary.

Paragraph 6.59 of the SEND Code of Practice 2015 states:

“Schools may involve specialists at any point to advise them on early identification of SEN and effective support and interventions. A school should always involve a specialist where a pupil continues to make little or no progress or where they continue to work at levels substantially below those expected of pupils of a similar age despite evidence-based SEN support delivered by appropriately trained staff.”

Although this sets out when a school should involve specialists, a school can bring in outside professionals at any time, avoiding delays in accessing support. Paragraph 6.60 of the Code states:

“Where assessment indicates that support from specialist services is required, it is important that children and young people receive it as quickly as possible.”

Therefore, if the school agrees that your son requires an assessment, the school should be arranging an assessment with the Educational Psychologist (EP) as part of the SEN Support package for your son.

However, it is important to note that there is no requirement for an EP report to have been obtained before requesting an EHC needs assessment. The legal test for assessment is set out in s36(8) of the Children and Families Act 2014:“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.”

As you can see, the threshold is relatively low. There is no need to prove at this point that your son definitely has SEN or will definitely need an EHC plan, just that he might. There is also no need for professional reports at this point, as these are all obtained during the assessment itself, although if you do have any reports, they can certainly support that an EHC needs assessment is required.

If you did decide to obtain an independent EP report yourself, you could submit this as part of your request for an EHC needs assessment. If the LA then decides to carry out an assessment, the LA would also then need to make a decision regarding whether to obtain out a further EP report. The process for an EHC needs assessment is set out in Reg 6(1) of the Special Educational Needs and Disability Regulations 2014 (“SEN Regs”):

“Where the local authority secures an EHC needs assessment for a child or young person, it must seek the following advice and information, on the needs of the child or young person, and what provision may be required to meet such needs and the outcomes that are intended to be achieved by the child or young person receiving that provision—

(a) advice and information from the child's parent or the young person;

(b) educational advice and information—

(i) from the head teacher or principal of the school or post-16 or other institution that the child or young person is attending, or

(ii) where this is not available, from a person who the local authority is satisfied has experience of teaching children or young people with special educational needs, or knowledge of the differing provision which may be called for in different cases to meet those needs, or

(iii) if the child or young person is not currently attending a school or post-16 or other institution and advice cannot be obtained under sub-paragraph (ii), from a person responsible for educational provision for the child or young person, and

(iv) if any parent of the child or young person is a serving member of Her Majesty's armed forces, also from the Secretary of State for Defence;

(c) medical advice and information from a health care professional identified by the responsible commissioning body;

(d) psychological advice and information from an educational psychologist;

(e) advice and information in relation to social care;

(f) advice and information from any other person the local authority thinks is appropriate;

(g) 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

(h) advice and information from any person the child's parent or young person reasonably requests that the local authority seek advice from.”

As you can see, an EP report must be obtained as part of the EHC needs assessment, and that report must give advice regarding the child’s needs, provision and outcomes. However, if that advice already exists, then the LA can choose to use this rather than obtain another report if the LA, parent and person who wrote the report all agree that the report is sufficient for the purposes of the EHC needs assessment (Reg 6(4) of the SEN Regs).

The word ‘sufficient’ isn’t defined or explained in the SEN Regs so we would suggest considering:

  • Does the report identify needs, provision and outcomes?
  • Are these specific and quantified?
  • Is the report recent?

If the answer to these is yes, then it’s likely to be sufficient. It is important to note though, that there is no timeline for when a report is likely to be out of date, and this will vary from child to child, depending on their age and needs.

It is important that everyone must agree that it is sufficient. If the LA or the EP feel that it is not, then the LA would have to obtain a new report. Therefore, there are no guarantees that obtaining an EP report now will speed up the EHC needs assessment process.