An Education, Health and Care (“EHC”) needs assessment is an assessment of the education, health care and social care needs of the child or young person.

Who will carry out the assessment?

The local authority (“LA”) must seek information and advice on a child or young person’s needs, the provision required to meet those needs, and the outcomes expected to be achieved by the child or young person. This advice must come from a range of different people, described below.

The LA has the legal duty to carry out the assessment process. They cannot ask a school or college to carry out the assessment for them, and they cannot require the school or college to pay for any part of the assessment (such as the educational psychologist’s report).

Who should be asked for advice?

The LA must seek advice from a range of people. The list is set out in Regulation 6(1) of the Special Educational Needs and Disability Regulations 2014 (the “SEN Regs”):

  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.

If a child or young person is hearing impaired and/or visually impaired the educational advice must come from a suitably qualified person (SEN Reg 6(2)).

The LA should consider whether a social care assessment or health assessment is also needed. There is some debate as to whether health and care assessments are automatically triggered when a request for an EHC needs assessment is made. In practice, it is best to request social care and health assessments independently to ensure the request is received.

Can parents or young people ask for advice from a particular person?

Under point SEN Reg 6(1)(h), a parent or young person can ask the LA to seek advice from anyone within education, health or social care, as long as it is a reasonable request. This can include a speech and language therapist, occupational therapist, physiotherapist or someone from CAMHS (Child and Adolescent Mental Health Services).

A request would 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.

It is best to request that a particular professional is approached in writing (either in a letter or an email), so that you have a record of your request. If the LA do not agree to your request, you can use our model letter to complain.

What if there are existing reports or advice about the child or young person?

The LA does not have to seek new advice where that type of advice has previously been provided for any purpose – for example, if there already was a recent educational psychologist’s report. This exception will only apply if the person providing that advice, the LA and the child’s parent or the young person are all satisfied that the existing advice is sufficient. Previous advice can only be sufficient for an EHC needs assessment if it is relatively up to date and accurately reflects the child or young person’s current needs. As a rough guide, an educational psychologist’s report which is over two years old will not usually be recent enough to be useful.

If a parent or young person already has their own advice and reports, these can be submitted as part of their own advice (which the LA must ask for under SEN Reg 6(1)(a)) to ensure that they form part of the assessment process. This evidence must then be considered when the LA makes its decision.

Copies of evidence submitted by the parent or the young person must be supplied to the other people from whom information is being sought (SEN Reg 6(3)).

What should the advice contain?

Their advice must be clear, accessible and specific (see paragraph 9.51 of the SEN and Disability Code of Practice). In particular, it should address the child or young person’s needs, the special educational provision required to meet those needs, and the outcomes which this provision will aim to achieve. LAs are not permitted to have policies preventing professionals from giving evidence on the provision required.

In relation to point (e) (advice and information in relation to social care), it is not uncommon for LAs to receive a response from social care stating “not known to this service”. The advice sought from the list of professionals contained in SEN Reg 6(1) must be in relation to the child’s needs, provision and outcomes. A response stating “not known to this service” is not going to fulfil the local authority’s duty to obtain the advice necessary for a full and accurate EHC needs assessment.

If any of the advice you receive does not address needs, provision and outcomes, you can use our model letter to complain. The LA should go back to the professional concerned and ask them for advice which complies with SEN Reg 6(1).

How should the LA involve the parents, child and/or young person?

As well as the duties relating to evidence, the LA must:

  • Consult with the parent or young person, and where the case involves a child, they must also consult with the child. They must take into account their views, wishes and feelings;
  • Engage the child and the child’s parent or the young person, ensuring that they are able to participate in decisions; and
  • Minimise disruption for the child, the child’s parent, the young person and their family.

SEN Reg 9 requires the LA to consider whether the child’s parent or the young person requires any information, advice and support in order for them to take part effectively in the EHC needs assessment, and if so this must be provided.

How long will this take?

Anyone who is asked for information and advice must respond within 6 weeks (SEN Reg 8(1)). The only exceptions to this are if exceptional circumstances affect the child, the child’s parent or the young person during that 6 week period; the child, the child’s parent or the young person are absent from the area of the authority for a continuous period of not less than 4 weeks during that 6 week period; or the child or young person fails to keep an appointment for an examination or a test made during that 6 week period.

This is a legal duty which must be complied with; it cannot be avoided because there is a long waiting list or because there are staffing shortages. If an LA is genuinely unable to obtain one of the necessary pieces of advice during the time frame, they would be expected to obtain an independent report in its place.

The LA must notify the parent or young person of their decision whether or not they will issue a plan within a maximum of 16 weeks from the request for assessment.

Following an EHC needs assessment, when does the LA have to issue an EHC plan?

The LA must decide whether it will issue an EHC plan for the child or young person based on the evidence it has gathered as part of the EHC needs assessment. The legal test which the LA must apply is found in section 37(1) of the Children and Families Act 2014 which says:

“(1)    Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan -

(a)     the local authority must secure that an EHC plan is prepared for the child or young person, and

(b)     once an EHC plan has been prepared, it must maintain the plan.”

Therefore the LA must decide, on the basis of the evidence from the EHC needs assessment, whether it is necessary for the child or young person to have an EHC plan.

What will happen when the LA makes a decision?

If the LA decides not to issue an EHC plan, it must tell the parent or young person within 16 weeks of the date the request for an assessment was made. The parent or young person can appeal this decision to the SEND Tribunal.

If the LA decides to issue an EHC plan, it will first send out a draft plan for the parent or young person to review and comment on. It should then send the final EHC plan to the parent or young person within 20 weeks from the date the assessment was requested. In order to meet this deadline they would need to send out the draft plan a maximum of 14 weeks from the date the assessment was requested.

 

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Complaining when the local authority does not seek the correct advice during an EHC needs assessment: Model letter 7

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Author: Emma Brock

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