“The Local Authority refused to assess my child for an EHC Needs Assessment," “I have an unacceptable EHC Plan”and “The Local Authority has taken away the provision my son receives” are all too familiar concerns raised by the parents of children with special educational needs.
Since the implementation of the Children and Families Act 2014, the law is very clear. Firstly, section 36(8) sets out that if your child/young person has or may have special educational needs and it may be necessary for special educational provision to be made for him/her, the Local Authority must secure an EHC Needs Assessment.
Nonetheless, this does not prevent local authorities from seeking to bend the rules and apply their own policy in place of the legal test. I have heard Lead Judge of the SEND Tribunal, Judge Jane McConnell, highlight this issue at various networking events, so it is encouraging to note that this problem is also being picked up by the Tribunal.
When a child or young person has special educational needs - the legal test
(1)A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her.
(2)A child of compulsory school age or a young person has a learning difficulty or disability if he or she—
(a)has a significantly greater difficulty in learning than the majority of others of the same age, or
(b)has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.
Common refusals I have seen range from, “It's not possible to obtain an EHC Plan for dyslexia” and “Charlie’s needs can be met by the Educational Psychology Team providing support to his current school” to “Daniel’s needs are primarily health needs and therefore it is not necessary to obtain an EHC Needs Assessment.” The problem is that none of these reasons are lawful. For example, by the very fact that Charlie’s difficulties need to be met by input from the Educational Psychology Team, this satisfies that it ‘may’ be necessary for special educational provision to be made for him in accordance with an EHC plan. These reasons are all unlawful and parents should rest assured that the SEND Tribunal will always apply the law.
Furthermore, in relation to EHC Plans, the Children and Families Act 2014 and accompanying Regulations set out very clearly that once a child is in receipt of an EHC Plan, the plan should set out quite clearly in Section B, the child/young person’s special educational needs and the special educational provision they require in Section F. The educational placement that can meet those needs and make such provision, should then be detailed in Section I.
Sections B and F of an EHC Plan should be specific and quantified, with no room for doubt.
So why do I continually see phrases such as “access to,” “opportunities for” and “benefit from” when reviewing a child/young person’s EHC Plan? Like many people, I would benefit from a hot meal. I would also benefit from a holiday in the Maldives, but it is clear that there is a large disparity between the frequencies of these. What about the parent who believes their child needs ‘access to’ a speech and language therapist on a weekly basis and the Local Authority, who considers a yearly visit to be appropriate?
Parents who are dissatisfied with the local authority’s decision - whether a refusal to assess for an EHC Needs Assessment, refusal to issue an EHC Plan or a refusal to increase provision that the parents have requested at an Annual Review - will always be afforded the right to appeal to the SEND Tribunal. Parents can appeal themselves, use a charity or local support service to help them or use specialist legal representation - whatever your personal circumstances allow.
If you want to try the amicable approach...
Alternatively, some parents do not want to adopt the litigious approach and instead wish to first attempt to resolve the situation amicably with the Local Authority. If this is your chosen approach, here are a few pointers to help you along the way:
- Set out the amendments you would like to be made to the EHC Plan/the decision you wish to negotiate on, clearly and in writing. It is helpful for the Local Authority to be able to see exactly what you are asking for and to avoid any confusion on either side.
- Set a time limit – how long are you going to attempt to liaise with the Local Authority? Remember that your ‘Right of Appeal’ to the SEND Tribunal is two months from the date of the Local Authority’s decision letteror one month from the date of the mediation certificate (whichever is the longer). If you continue to liaise past the two-month deadline (and do not obtain a mediation certificate) and the local authority do not agree to your amendments, you are back to square one (and the potential of waiting another 10 months for a new Right of Appeal.)
- Who are you talking to? It is all very well providing your views to the LA Case Officer, detailing the level of provision that you would like in your child/young person’s EHC Plan, but do they have any decision making power to agree to these changes? If you are seeking to negotiate – cut out the middle man. Request a meeting where somebody with decision-making ability from the local authority is also able to attend.
- What evidence do you have? The SEND Tribunal is an evidence-based system and Local Authorities up and down the country are strapped for cash. While I would like to think we could live in a world where Local Authorities will fund provision because parents say their child/young person needs it, we all know this is not accurate. Gather your own evidence of the support your child requires. Do not rely on the Local Authority to obtain this for you.
- Consider taking Legal Representation with you. Depending on your circumstances it may be financially more worthwhile to take a solicitor with you to assist with coming to an agreement early on, than having to use their services to represent you in a Tribunal Appeal.
- Be courteous but firm. Know the law and be clear on your rights.
- Even if you don’t wish to take a Solicitor with you, take a friend or family member who is able to take notes for you. Often parents engaged in the meeting find it difficult to keep an accurate record of what is being said and a helpful friend/family member will be able to do this for you. These notes can prove very useful later on.
- Lastly, be firm in your belief of the changes to the EHC Plan/decision that needs to be made. Remember, nobody knows your child better than you.
- EOTAS: Education Otherwise Than At School. What is it, and can I get it? - November 2, 2021
- Could remote hearings be the new normal at the SEND Tribunal? - April 10, 2020
- Coronavirus and SEND law: Part 4 What does my child’s EHCP still provide? - March 27, 2020