Our daughter has been on SEN support for a while but we are concerned that she is only making very small amounts of progress. The school and the LA say she will not qualify for a EHC needs assessment unless we demonstrate the school has spent £6,000 worth of SEN provision on her. We have tried to challenge this but the school says this is the LA’s policy and it must be followed. Is this right? Expand You can request an EHC needs assessment yourself and should do so. We have a template letter to help you do this which can be found here. As set out on our page about asking for an EHC needs assessment, under the law the local authority (“LA”) must carry out a EHC needs assessment if a child has or may have SEN and it may be necessary for the LA to make special educational provision for the child by making an education, health and care (“EHC”) plan. Once you send in the request the LA must respond to it within 6 weeks. Despite the low threshold of the legal test for assessment, many LAs operate policies which set the threshold higher than the law. Common examples include policies which require a report from an educational psychologist or other professional, or requiring the parent or school to demonstrate that a particular sum of money (often £6,000) has already been spent on the child’s SEN provision. These are unlawful requirements. Schools do not often know the law surrounding this area so often believe the LA’s policy ‘trumps’ when it does not. If the LA refuses to assess they must detail your right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) (“the SEND Tribunal”) in the refusal letter. Refusal to assess appeals are decided on the paperwork so you do not have to go to a hearing. The SEND Tribunal must decide the case based on the law and not what the LA’s policy says. The deadline for appealing is two months from the date of the decision or one month from the date of the mediation certificate, whichever date falls the latest. You can find out more about appealing to the SEND Tribunal here. Refusal to assess appeals are one of the most common appeals made to the SEND Tribunal and they have a high success rate in favour of parents and young people.
My LA is saying that my child doesn’t need an EHC needs assessment, because the school should be relying on existing SEN funding streams, but this is not happening in practice. Is this lawful? Expand The only legal test that the local authority (“LA”) should be applying when considering whether to carry out an education, health and care (“EHC”) needs assessment is set out at s. 36(8) CAFA 2014. Overemphasis on SEN funding policies may cause LAs to unlawfully refuse EHC needs assessments. If SEN Support appears inadequate for a child/young person, then an EHC needs assessment is likely necessary. The question is not whether the school could in theory use their SEN funding to meet the child/young person’s special educational needs, but whether that is happening in practice.
Are the rules and processes of an EHC needs assessment different if the child is below compulsory school age (under 5's / preschool / nursery children)? Expand The process of an EHC needs assessment is exactly the same whatever the age of the child or young person. Parents/carers can request an EHC needs assessment for a child who is below compulsory school age and the only test the local authority (“LA”) must apply is the one contained in s.36(8) CAFA 2014. Sometimes parents come to our helplines because they think that a child needs to have been in school or nursery for a certain amount of time before an EHC needs assessment can be requested: this is not true. The legal definition of what constitutes a special educational need is slightly different for children aged under compulsory school age. The LA is required to look forward to whether the child is likely to have a learning difficulty or disability when they are of compulsory school age or would be likely to without special educational provision – this can be found here. The definition of special educational provision is also slightly different for those aged under 2 – it means educational provision of any kind (so it’s not compared to what might be available in settings for under 2s). Remember, health care and social care provision which “educates or trains” is capable of being special educational provision. This can include things like speech and language therapy.
Can a child who is below compulsory school age have an EHC needs assessment? Expand Yes: the purpose of the Children and Families Act 2014 (“CAFA 2014”) was to extend the benefit of statutory support to those children and young people with special educational needs (“SEN”) from aged from 0-25, so this includes under 5's / preschool / nursery children. For a definition of compulsory school age, please see here.
We want to make a request for an EHC needs assessment for our child. They go to a school in a different LA. To which LA should we make the request – our home LA or the LA of the school? Expand Requests for EHC needs assessments should be made to the LA you live in, even if your child goes to school in a different LA. If your home LA decides it will issue your child with an EHC plan, the home LA (not the school LA) will be responsible for securing provision in it.
Is Covid-19 still affecting the EHC needs assessment process? Expand During the Coronavirus pandemic, there were relaxations to the deadlines which apply to local authorities (“LA”) throughout the EHC needs assessment process. However, these only applied from 1 May 2020 to 24 September 2020. LA’s can no longer use Covid-19 as a reason for breaching these statutory deadlines.
The LA has agreed to an EHC needs assessment but when we asked for it to approach Child and Adolescent Mental Health Services for advice it said no because there is a really long waiting list. Our son is suffering with anxiety and we don’t know what else we can do. What rights do we have? Expand When a local authority (“LA”) agree to conduct an education, health and care (“EHC”) needs assessment, they are agreeing to seek advice and information from a specified list of professionals including anyone the parent or young person ‘reasonably requests’ (this is set out in Regulation 6(1) of the Special Educational Needs and Disability Regulations 2014 – see the section on what happens in an EHC needs assessment for more information). If you have made a request for the LA to seek advice and information from Child and Adolescent Mental Health Services (“CAMHS”) or anyone else, then the LA is under a legal duty to approach the professional for advice so long as the request is reasonable. When a health service is approached for advice and information it must provide it within 6 weeks of being contacted by the LA. The information and advice must be in relation to the child’s needs, outcomes and provision. 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. If a child has mental health needs, it would be very difficult for the LA to argue the request to seek advice from CAMHS is unreasonable just because there happens to be a waiting list as this is irrelevant to the request. You should write a formal letter to the LA using IPSEA’s template letter. If the LA continue to say no to seeking advice from CAMHS or another professional you have asked them to obtain advice from you should consider making a formal complaint to the LA using their complaints process. You can find out more about making a complaint against an LA here. IPSEA’s case work suggests it is common practice for some of the professionals specified on the Regulation 6 list to respond to a request for advice with a “not known to this service” letter, or, a statement to say there is a long waiting list so they are unable to provide the advice. Such a response is likely to be unlawful and does not meet the legal requirement of the LA to seek and obtain the advice in relation to needs, outcomes and provision. The template letter referred to above can also be used to complain if you receive an inadequate response.
We have just received our daughter’s draft EHC plan and we are not happy with the way her needs have been described in Section B. All it says is that she is a friendly and playful little girl (which we already knew) with ‘a general delay with her learning’. In fact she has a specific problem with reading and writing. In other areas her development is fine. What can we do? Expand It is important to get Section B of your child’s education, health and care (“EHC”) plan right. This is because the LA must specify, under Section F, provision to meet each and every one of the needs identified in Section B. If Section B fails to mention one of your child‘s needs, they may not get the provision required to meet that need. If you are not happy with your draft EHC plan, it is vital to check whether you need to request to change Section F as well as Section B. After receiving the draft EHC plan, you will have at least 15 days to write to the local authority (“LA”) and make written representations to them about the contents of the EHC plan and/or ask for a meeting. There is more information in the section on what to do when you receive the draft EHC plan. You should first read through all of the professional advice which you will have received along with the draft EHC plan. They may contain more specific descriptions of your daughter’s learning difficulties than the one contained in Section B of the EHC plan. It is acceptable for Section B to include some other detail about the child, rather than just her needs and difficulties, but those needs must still be set out clearly. If you agree with the descriptions of your daughter’s needs in the advice, then in your written representations and/or at your meeting with the LA ask that the draft EHC plan is amended in order to include the specific descriptions of her needs as they appear in the professional advice. Remind the officer that in law Section B of the EHC Plan must refer to the needs identified during your daughter’s assessment. There have been a large number of cases which have confirmed this. See the section on what an EHC plan should contain for more information. You can also use IPSEA’s EHC plan checklist to check whether your draft EHC plan complies with the legal requirements for how it should be set out. If you disagree with the way your daughter’s needs are described in the professional advice, you should consider flagging this up with the advice giver directly. The section on complaining when an EHC needs assessment is not carried out properly contains more information on how to do this. When you ask the LA to amend the EHC plan, give the LA officer a copy of what it is you want the EHC plan to say in Section B (and Section F, if necessary). Prepare this before the meeting. Leave a copy with the LA officer and keep one for yourself. If the LA finalises the EHC plan as it was originally drafted, without amending it as you requested, you can appeal to the First-tier Tribunal (Special Educational Needs and Disability). The deadline for appealing is two months from the date of the final plan or one month from the date of the mediation certificate, whichever date falls the latest.
We had always wanted our son to go to the local primary school along with his sisters. Our son has attention deficit disorder and he is a very slow learner. He has been assessed by the LA and we have just received the draft EHC plan with the professional advice. We are very concerned about the advice from the educational psychologist. When we spoke to him, he told us that he thought that our son was going to need more specialist teaching support than theLA would probably be prepared to give him in a mainstream school. We’ve combed through his report and he says nothing at all about the amount of help he thinks our son needs. Does this mean he’s changed his mind, or has he been ‘leaned on’? Expand Now that you have the draft education, health and care (“EHC”) plan you have the right to ask for a meeting and/or make written representations about the contents of the EHC plan. The local authority (“LA”) must give you at least 15 days to make any representations and/or request a meeting. For more information, see the section on what to do when you receive the draft EHC plan. We would recommend you arrange a meeting with the LA and raise the following points: The law says that written advice must include a professional’s opinion on ‘the provision which may be required.’ The educational psychologist’s (“EP’s”) advice says nothing about the amount of help your son needs, but you know he has an opinion on this because he discussed it with you. The EP now needs to say, and put on record, the amount of support – teaching and non-teaching – that he believes your son re (If the EP does this, ask that it be written down and attached to the advice as an addendum.) This means the EP’s full opinion will form part of his written advice and that, therefore, the LA will have to take account of it when they make their decision about the amount of provision to be specified in Section F of the EHC plan. It should also help you, as parents, to argue for an appropriate amount of help for your son in the mainstream school of your preference. And, if the LA ignores the EP’s views and your own views, you will be in a stronger position to challenge the LA through an appeal to the First-tier Tribunal (Special Educational Needs and Disability) (“the SEND Tribunal”). It may be that the meeting gets you no further forward. The LA officer may say they have a policy preventing professionals from recommending particular provision, or the EP may say he is not allowed to include his opinion on types of school in his professional advice. This is not in line with the law or the statutory guidance; see the section on what to do when you receive the draft EHC plan for more information. If this happens, you should inform them that you will be raising these issues as part of your appeal to the SEND Tribunal should it be necessary when the EHC plan is finalised. The deadline for appealing is two months from the date of the final plan or one month from the date of the mediation certificate, whichever date falls the latest. You should also leave the LA officer with written points stating exactly how much help and support you want the EHC plan to specify for your son in Section F. The law gives parents the right to express a preference for the type of school and the individual named school which they ‘prefer’ for their child (as set out in the section on choosing a school). When a child has special educational needs, parents inevitably decide their preference on the basis of which school can give their child the right kind of help to meet their needs. When LA officers and professionals refuse to tell parents how much help their child needs (following an EHC needs assessment which is intended to find this out), they prevent parents acting in their child’s best interests. LAs are under a duty to specify the special educational provision a child or young person requires and this must not be ignored.
Section F of the draft EHC plan does not detail any of the special educational provision our son needs. There is only a paragraph to say the school will decide how much provision he needs and when. Is this lawful? Expand You are right in thinking that the special educational provision must be specified in Section F of the education, health and care (“EHC”) plan. There must be provision to match each and every one of his special educational needs (“SEN”) which should all be identified in Section B. When a local authority (“LA”) makes an EHC plan for a child or young person, it is in recognition that the school cannot make the special educational provision required and it is up to the LA, not the school, to specify and then secure the special educational provision. See the section on what an EHC plan should contain for more information. You can also use IPSEA’s EHC plan checklist to check whether your draft EHC plan complies with the legal requirements for how it should be set out. You will have at least 15 days in which to write to the LA and make written representations to them about the contents of the EHC Plan and/or ask for a meeting. It is important to do this. Before making your views known you should read through all of the professional advice which you will have received along with the draft EHC plan. There could be specific recommendations about the type and frequency of special educational provision your son requires which must be specified in Section F. In your written representations and/or at your meeting with the LA, ask that the draft EHC plan is amended in order to specify all of the special educational provision your son requires. Remind the LA officer that in law Section F of the EHC Plan must specify all of the special educational provision, regardless of who is delivering it. If you are unable to persuade the LA at the draft EHC plan stage to properly specify all of the provision that is needed then you will need to appeal to the First-tier Tribunal (Special Educational Needs and Disability) when the EHC plan is finalised. The deadline for appealing is two months from the date of the final plan or one month from the date of the mediation certificate, whichever date falls the latest.
We have the draft EHC plan, and there is a therapy we would like to have included in section F. Can a particular therapy be included in an EHC plan if it is not available from the local health service? Expand Yes it can. If a child’s SEN are identified in Section B of the EHC plan, provision to meet these needs has to be made in Section F. The only relevant issue is meeting the child’s needs (not whether resources are locally available). Paragraph 9.69 of the SEN and Disability Code of Practice states, “Provision must be specified [in Section F] for each and every need specified in Section B”. Note also that section 21(5) of the Children and Families Act 2014 says: “Health care or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision)”. This means it is the local authority (rather than the health service) who has the legal obligation to provide such a therapy.
The LA agreed to do an EHC needs assessment but now it is complete we’ve received a letter saying the LA is going to make a ‘My Plan’ for our daughter. This looks like a EHC plan but the information accompanying it says it is ‘non-statutory’. What does this mean? Does our daughter have an EHC plan? Expand When an LA completes the EHC needs assessment they must decide whether to make and maintain an EHC plan. If the decision is not to make an EHC plan they must notify the parent or young person of their right to appeal this decision to the First-tier Tribunal (Special Educational Needs and Disability). Some LAs send this notification accompanied by a document which looks like an EHC plan and this can be very confusing. These ‘non-statutory’ documents carry no legal entitlements therefore they do not have to be followed by anyone involved with the child or young person. If they have issued you a ‘non-statutory plan’, this means the LA has made a decision not to issue an EHC plan. It will be important to consider appealing the LA’s decision not to issue an EHC plan. The ‘non-statutory’ plan setting out your daughter’s needs and provision requirements could actually be helpful to use as part of your appeal, if it helps to indicate that she has needs which require provision greater than that which can be provided out of the school’s own resources.
We want occupational therapy moved into Section F of our son’s education, health and care plan. Section B lists fine motor skills and sensory difficulties as some of his special educational needs, but occupational therapy is written in Section G as ‘health care provision’. We do not believe this is right but what else can we do? We had a meeting with the LA when the EHC plan was at the draft stage but it said it is a service provided by the NHS and it is out of the LA's hands. Expand You are right in thinking that the occupational therapy is likely to be special educational provision therefore should be specified in Section F of the education, health and care (“EHC”) plan. What supports your argument is that the local authority (“LA”) has described your son’s difficulties with fine motor skills and sensory difficulties in Section B as special educational needs (“SEN”). The law is clear that any health or social care provision which educates or trains a child or young person must be treated as special educational provision instead of health or social care provision. See the section on what an EHC plan should contain for more information. You can also use IPSEA’s EHC plan checklist to check whether your draft EHC plan complies with the legal requirements for how it should be set out. It is not uncommon for LAs to be reluctant to specify provision which comes from a health or social care service in Section F of the EHC plan as once they do, they become ultimately responsible for securing the provision, even if health or social care can’t or refuse to do so. You will need to appeal to the First Tier Tribunal (Special Educational Needs and Disability) (“the SEND Tribunal”). The deadline for appealing is two months from the date of the final plan or one month from the date of the mediation certificate, whichever date falls the latest. You should also consider appealing Section B of the EHC plan after checking it to make sure all of your son’s SEN are properly specified.
The EHC plan has been finalised and we still disagree with the description of our son's needs in Section B and the lack of appropriate provision in Section F of the final EHC Plan. The provision in Section F is really vague and there is an appendix to the EHC Plan titled ‘steps to achieving outcomes’ which lists all the special educational provision. Expand Some local authorities (“LAs”) create additional sections to education, health and care (“EHC”) plans despite the law being clear that the statutory sections are A to K. While it is not strictly unlawful for LAs to add additional sections, it can be confusing and misleading. It is, however, unlawful for the LA to specify educational provision anywhere other than Section F of the EHC plan. The EHC plan must contain all of the sections required in law. Any additional sections the LA adds will not have any legal effect, so it is important to ensure any of the special educational provision your son needs is properly specified in Section F and is not left to be determined in a section which has no legal status. You will not be able to compel the LA to secure the special educational provision unless it is specified in Section F. Section B of the EHC plan must specify all the special educational needs (“SEN”) and Section F must specify all of the required special educational provision. See the section on what an EHC plan should contain for more information. You can also use IPSEA’s EHC plan checklist to check whether your draft EHC plan complies with the legal requirements for how it should be set out. It is important that you do not miss your deadline for appealing to the First-tier Tribunal for Special Educational Needs and Disability (“the SEND Tribunal”). The deadline is 2 months from the issuing of the final EHC plan or 1 month from the date of the mediation certificate, whichever date is the latest. Getting the EHC plan right now will be crucial to ensuring your child receives the special educational provision they need in the future. It will be difficult for the LA to justify, and defend, specifying provision in a non-statutory section of the EHC plan and refusing to specify it in Section F.