All you need to know about Education, Health and Care plans (part 2)
What is the legal threshold to trigger an assessment?
It’s low. The legal test for when a local authority must carry out an EHC needs assessment is that:
- The child or young person has or may have special education needs; and
- It may be necessary for special educational provision to be made.
What should be included in the EHC plan?
- Make sure every area of need and provision is specified and, wherever possible, quantified: who will deliver the provision? How often will the speech and language sessions take place? How long will they last? If the provision isn’t specific and quantified, it’s harder to enforce.
- Make sure all the recommendations from all the professionals who assessed your child are included in the plan. If the professional advice – say a SLT report – is woolly and unspecified, go back and request specified advice.
- Local authorities sometimes do not quantify provision for children in special schools, but in the majority of cases they should be.
- The provision will be dependent on evidence. A parent saying that their child needs something is unlikely to be enough.
- If your child needs it, there is no limit to the provision that can be specified within an EHCP, though there is no legal entitlement to the best possible provision.
- If you do not agree with the findings of a professional report, consider seeking further professional evidence in the form of an independent report – for example, from an educational psychologist or a speech and language therapist.
- Most autistic kids will need support during unstructured times, such as lunchtimes or breaks. If this applies to your child, make sure the need for structured activities during these times is specified.If your child needs one-to-one support from a TA, make sure it is clearly stated.
- Local authorities and schools like this not to be nailed down so they have more room to use the TA elsewhere or take them away.
What happens if my EHC plan assessment request is turned down?
Some local authorities refuse all requests the first time round, as a way of managing their workload. Local authorities give parents a variety of reasons why they won’t assess a child – many of them unlawful.
The first thing to do if your request is to ask your local authority for more information on why they came to their decision and explain why you think they got it wrong. If that doesn’t get you anywhere, or you don’t get a reply, many go to tribunal – you have two months after the local authority’s decision not to assess to register your appeal, or you lose the right to appeal – or gather more evidence and request another assessment (there is no limit to how many assessments you can request).
Before you can go to tribunal, you have to either enter mediation or get a certificate from a mediator to show you have considered the option – you have two months to start mediation from the day the local authority makes its decision not to assess. If you choose to go to mediation and it fails, you have a month after that point to lodge an appeal.
For refusal-to-assess cases, tribunal judges can now reach their decision by looking at the paperwork, and parents don’t have to be there, though they still have the option to request an oral hearing if they prefer. You will need to include any evidence contained in your application letter – a diagnosis or a professional report – and your view as well as the school’s if they agree on why your child may need a plan.
If you do launch an appeal, particularly if the school is supporting you, the tribunal judges are likely to agree with you.
Read the part 1 and part 3 of this blog.