Problems obtaining an EHCP?

Potential systemic non-compliance - deter, defer, delay

Reminder of remedies for refusal to assess decisions/breach of 20-week assessment windows

A great recent case (W, R (On the Application Of) v Hertfordshire County Council [2023]) well worth a read which will hopefully serve to assist all those experiencing the frustration of LA refusals to assess for an Educational Health Care Needs assessment (via a wrongful application of the S36 Children & Families Act 2014 test (CFA)) and having passed that hurdle face an unlawful assessment period well outside the statutory 20 weeks.

Important takeaways include:-

a)    99% of this LAs decisions (2021/22 period) were conceded or lost when challenged by appeal. How many parents chose not to appeal accepting the LA response as plausible? Analysis of the LA response revealed obvious misapplication of the S36 CFA test and the suggestion of proper scrutiny only when an appeal had been launched.

b)    Confirmation of the timelines. Regulation 2 of the Special Educational Needs and Disability Regulations 2014 provides that where an LA agree to assess and issue a Plan it must do so as soon as practicable, and in any event within 20 weeks of the local authority receiving a request for an EHC needs assessment. 

Where an appeal against a refusal to assess has been lodged then proper practice is for the LA to notify the Tribunal and for an Order to follow. The assessment and finalised EHCP will then have to be completed within 14 weeks of the date of a direction. Reg 44(2) SEND Regs 2014. 

In this case no such step was taken meaning the original timeline attached e.g. 20 weeks started at the point of the parental request was received. At no point does the clock re-start in these circumstances.

c)    As is common in many other cases the LA accepted delays in assessment were linked to lack of resources, in particular available Educational Psychologists, but crucially was absent of any meaningful steps to remedy the unlawful inaction. Existing case law of in fact answers this point. R v East Sussex County Council, ex parte T [1998] 2 WLR 884. The delays in turn denied the right of remedy attached to a Tribunal appeal hence the requirement for a Judicial Review action.

The case has also served to shine a light upon potential systemic non-compliance of Hertfordshire County Council including practices of alleged ‘deter, defer, delay’.

Will other Local Authority’s reflect upon the wider impact of this decision? It will be interesting to see if the individual in this case takes it further in order to scrutinise practices and explore the potential of an award of damages.

If you have any questions or would like to discuss a case involving these issues, please get in touch by emailing senexpertsolicitors@boyesturner.com or call 0118 467 6547.