If a child is not reaching educational targets and outcomes as part of any additional special educational needs (SEN) support provided at school, it may be necessary to request an Education, Health & Care (EHC) needs assessment to the home Local Authority (LA). The request can be made by the school or by the parents. Some LAs require the school or parents to complete a form but this should not be necessary.
The only information required to request an EHC needs assessment is:
- A description of the difficulties that the child is having in school and the support that has been put in place by the school (including any additional support that parents may be providing out of school); and
- Evidence of additional support that may be required. This may be by way of review documents collated by the school and reports from the school, therapists, Educational Psychologist as well as medical reports.
What are the requirements for an EHC Needs Assessment to take place?
The LA has to apply a legal test when considering whether or not to go ahead with the EHC needs assessment. The LA will consider whether, in light of the information in front of it, the child may have special educational needs that may require support through an Education Health & Care Plan (EHCP). The threshold is a fairly low one. Parents and/or the school only need to show that there is a possibility that the child has SEN that may lead to the possible requirement of an EHCP. Provided this threshold is met, the LA should carry out an EHC needs assessment.
The process from requesting an EHC needs assessment to the issue of a final EHCP should take no longer than 20 weeks.
The 20-week EHC Needs Assessment timetable
The LA will write to the school to request any information and evidence of support and progress. The LA will make a decision within the first six weeks as to whether or not they will continue with the assessment. If the LA refuses, they must write to the parents who will then be given a chance to appeal the decision to the Special Educational Needs and Disability (SEND) Tribunal.
If the LA agrees to go ahead with the assessment, over the next six weeks it will collate information. The LA will write to the child’s parents, the school, an Educational Psychologist and any other therapists where necessary including Speech and Language Therapist, Occupational Therapist, Physiotherapist, medical professionals, social services and teachers of the visually or hearing impaired (where relevant).
Parents can also put forward any other reports that they wish as part of their own contribution, this includes any independent experts’ reports. If using independent experts’ reports or their own advice, it is important that experts are advised to consider the difficulties the child may face in a school environment and the support that they are likely to require in school. When detailing the type of support required, the expert should set out very specific recommendations.
The EHCP is a legally binding document and to avoid any misunderstanding or misinterpretation, all support must be very specific and quantified. It is also important that any therapy reports or experts reports avoid the use of any woolly or vague words such as ‘would benefit from’, ‘on occasions’, ‘access to’, ‘opportunities for’. It is preferable to quantify any support very specifically so, for example, a recommendation for ‘termly speech and language therapy’ would be better drafted as ‘speech and language therapy to be provided by a Speech and Language Therapist for 30 minutes every two weeks during term time on a 1:1 basis or small groups (of no more than four pupils).’ The report should also state how often the Speech and Language Therapist would review any programmes that have been left for Teaching Assistants or the school to follow, any indirect time in training, attendance at meetings and Annual Reviews.
The LA will consider all reports and evidence collated and will decide at the end of that process whether or not they will issue an EHCP. If the LA decides that they will not be issuing a Plan this is often because it feels that the school ought to be able to make provision from within funds already allocated to it. If so, the LA will send a letter to the child’s parents notifying them of their findings and often sending out a Plan which is very similar to an EHCP but which does not have any legal status. Parents can challenge that decision to the Special Educational Needs & Disability Tribunal.
If the LA decides that they will be issuing a Plan, they must send a draft Plan to parents, who will be given 15 days to respond. Parents should look through the EHCP with great care, remembering that only Sections B, F and I are binding on the LA. Whilst other sections are important to build a holistic picture of the child, it must be remembered that the EHCP in itself does not entitle the child to any health or social care provisions set out within it, but that any health and social care provision set out in the Plan is simply as a result of those statutory bodies already having decided that they will provide that level of support. The focus when checking the draft Plan should be on Sections B and F. There must be educational support set out for each educational difficulty.
Parents will be also be asked to put forward their preferred school for insertion into Section I of the Plan. The LA must consult with parents’ preferred school before deciding whether to name it. At this stage, parents can also request a personal budget for any aspect of the EHCP. If a personal budget is agreed, then the LA may decide whether or not to provide direct payments in respect of any support in the plan.
The LA must issue the final EHCP by week 20. Once the Plan is finalised, the LA, through the school, must put in place the provisions set out in the Plan. If parents are not content with the support set out in the Plan or the name of the school in the Plan, they can appeal to the SEND Tribunal and must do so within two months (+ one month for mediation) of the LA decision letter. Once the EHCP is finalised, the school named on the Plan must admit the child, whether it is a mainstream school, unit within a mainstream school, special school or an independent school. Where it is an independent school, the LA must pay the school fees.
Can I challenge an EHC Needs Assessment?
It should be noted that only the content of Sections B, F and I can be challenged by way of an appeal to the SEND Tribunal. The Tribunal can consider health and social care alongside an education appeal and can make recommendations, but it does not have the same level of enforceability as the educational sections where it can make an Order.
Produced by Laxmi Patel, head of Boyes Turner’s Education team
This article was written for us by Laxmi Patel who leads Boyes Turner’s leading Education team. An expert in special educational needs, Laxmi works closely with parents, schools, local authorities and case managers to ensure that children and young people with special educational needs and disabilities receive the support they need to achieve their potential in their education.
Boyes Turner is a Reading based full service law firm with a dedicated Education team who help families get the extra help and support they require for their children with special educational needs and disabilities.
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