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Special Educational Needs Q&A Seminar - Get your questions answered!
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Boyes Turner SEN team hosted a seminar on 4 March 2015 to explore reviews and appeals with experts, case managers and parent support groups.
During the discussion a lot of new, interesting questions were raised. We include here a sample of the questions asked for your reference, just click on the question to see our response…
- What should we do when a child with special educational needs moves to a new area?
- How long can the local authority take to decide what action it will take after the Annual Review of a Statement?
- Are there any benefits to moving from a Learning Difficulty Assessment (LDA) to Education, Health and Care Plan (EHCP) early?
- During an EHC Needs assessment, is there any requirement for the expert to meet the child / young person?
- Can a local authority limit the EHCP to containing only three or four Outcomes?
- If parents agree that a particular assessment is not needed during an EHC needs assessment, can they change their mind?
- Can a local authority refuse, for example, to conduct speech and language and occupational therapy assessments in respect of a child with Autism on the basis that no amount of therapy will reduce their needs?
- Can parents or young people ask for a second opinion from a different expert?
- During the Annual Review of an EHCP, who decides whether a further assessment is necessary?
- Who can assess of Mental Capacity?
- Is there any age limit on when a young person can be issued with an EHCP?
- If a young person suffers an acquire brain injury, can they access an EHCP?
- Can a local authority cease a Plan because a child or young person is not making progress in health or social care?
- At the Annual Review of an EHCP, should we expect to have reached short- and mid-term Outcomes?
- If a health need is identified, who is responsible for putting that in the EHCP? Who is responsible for providing it? Do we have to notify the Health team?
- Can a Health need give rise to a right of appeal?
- Do the SEND Tribunal pilot Regulations give a right of appeal against Health and Social elements of the EHCP?
- Who can attend mediation?
- Can parents recover the costs of having to appeal to the SEND Tribunal?
- Who pays for a young person to bring an appeal to the SEND Tribunal?
- How do university students get additional support, such as extra time in exams?
Q. What should we do when a child with special educational needs moves to a new area?
A. When a child or young person moves to another local authority their Statement/EHCP should be transferred to the ‘new’ local authority by the ‘old’ authority. The ‘new’ local authority should then adopt the Statement or the EHCP as quickly as possible to ensure a smooth transition.
The ‘new’ local authority may decide to conduct new assessments and amend the Statement/EHCP as it sees fit. Any amendments made can be appealed to the Special Educational Needs and Disability Tribunal by parents or the young person.
Before moving into a new area, it is strongly advisable that parents inform both the ‘old’ local authority and the ‘new’ local authority of the intended move. Parents and young people should also find out as much as possible about potential educational placements. It is also very helpful for the Statement/EHCP to be sent to the ‘new’ local authority before the move takes place and send confirmation of moving dates.
Q. How long can the local authority take to decide what action it will take after the Annual Review of a Statement?
A. Once the Annual Review meeting has taken place, the headteacher must send the Annual Review report to the local authority within 10 days.
The local authority then has to consider the report “promptly” and make a decision about any changes it intends to make. Once a decision is made, it must communicate that decision within one week.
There is no clarification of what “promptly” means and will depend entirely on how much information the local authority has to consider and whether the circumstances require a quick decision.
Q. Are there any benefits to moving from a Learning Difficulty Assessment (LDA) to Education, Health and Care Plan (EHCP) early?
A. Pupils with an LDA have the ability to request to make the move to EHCP early. If they make this request, the local authority must comply with it.
Whilst the decision to transfer early will not be right for everyone, there are benefits:
- The EHCP is holistic – it includes Health and Care provision whereas the LDA does not.
- The EHCP can last until the age of 25; the LDA must lapse at age 19.
- The LDA is not enforceable. The recent case of Bexley found that LDAs could not be enforced.
Of course, there are a number of difficulties with transferring into the new system so many people may decide to hold off moving to EHCPs until the teething problems are (hopefully) resolved.
Q. During an EHC Needs assessment, is there any requirement for the expert to meet the child / young person?
A. The law is silent on this. The requirement is that to complete an EHC needs assessment the local authority must secure “advice and information” from:
(a) The child’s parent or the young person
(b) Educational advice (usually from head teacher or principal of post-16 institution)
(c) Medical advice and information from a health care professional
(d) Psychological advice and information from an educational psychologist
(e) Advice and information in relation to social care
(f) Advice and information from any other person the local authority thinks is appropriate
(g) Where the CYP 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
(h) Advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from.
The question really is whether “advice and information” can be provided without a direct assessment of the child in question by the relevant expert.
Under the ‘old law’, in order for an assessment to be completed “advice” has to be provided. It was common practice that this meant that the expert met and assessed the child in order to provide the advice.
As it was common practice for a direct assessment to take place in order for “advice” to be provided, we would conclude that the same practice must continue into the new regime for the provision of “advice and information”.
Ultimately, it will come down to what is deemed reasonable professional practice. If an expert can provide advice without assessment, for example where that expert has very recently seen the child, then no assessment is required. However, we would envisage that this would be very rare.
Q. Can a local authority limit the EHCP to containing only three or four Outcomes?
A. No. If the local authority is requiring a school to only set out three or four Outcomes we would consider this to be unlawful.
At 9.68 of the SEND Code of Practice it states, “…Outcomes underpin and inform the detail of EHC plans. Outcomes will usually set out what needs to be achieved by the end of a phase or stage of education in order to enable the child or young person to progress successfully to the next phase or stage…”
Setting an arbitrary maximum number of Outcomes would make it impossible, in some cases, to comply with this requirement.
Q. If parents agree that a particular assessment is not needed during an EHC needs assessment, can they change their mind?
A. Regulation 6(4) Special Educational Needs and Disability Regulations 2014 sets out that the local authority may not seek advice from any particular expert if the local authority, parents (or young person) and the expert themselves agree that no further advice is needed.
Parents may, therefore, agree that no advice is needed but then change their mind.
The EHC needs assessment process is a long-term process. It would seem reasonable that if parents inform their local authority that they have changed their mind during that assessment process then the local authority should obtain the relevant advice.
Also, remember the overriding principal set out in s19 of the Children and Families Act 2014, that local authorities must have regard to the views of parents and the importance of parents participating as fully as possible in decisions.
Q. Can a local authority refuse, for example, to conduct speech and language and occupational therapy assessments in respect of a child with Autism on the basis that no amount of therapy will reduce their needs?
A. No. This is a blanket policy which, if being employed, may well be open to challenge by way of Judicial Review.
The decision on what advice is necessary to secure during the EHC needs assessment is entirely subjective. The purpose of the EHC needs assessment is to work out what the child’s special educational needs are, what they have difficulties with and what support is needed to help them manage those difficulties.
In the example given, the local authority seem to be indicating that because a child with Autism will never be “cured” of their speech and language difficulties there is no need to secure speech and language therapy. This is entirely wrong. If a child has communication difficulties they will need their curriculum to be modified to cater for those needs. A failure to do so would be an entire failure to comply with the statutory regime.
Q. Can parents or young people ask for a second opinion from a different expert?
A. Yes – but it is very unlikely that the local authority will be willing to fund it. Only in the most exceptional circumstances, where there is clear evidence that the expert’s findings are utterly inadequate / incorrect might the local authority potentially consider funding a second opinion.
Q. During the Annual Review of an EHCP, who decides whether a further assessment is necessary?
A. During the annual review of an EHCP the local authority must conduct an assessment of the child’s needs if it is “necessary”.
There is no clear definition of “necessary”. It is the local authority who will decide what is “necessary”. It is best to use the standard English meaning of essential, crucial or something that must be done. Therefore, if there is clear evidence from the school that they do not understand the needs, or there is evidence that additional support is required, this may make an assessment necessary.
Q. Who can assess of Mental Capacity?
A. Any medic or social care professional should have appropriate training and qualification to assess Mental Capacity.
Q. Is there any age limit on when a young person can be issued with an EHCP?
A. No – any young person under the age of 25 can secure an EHC needs assessment and an EHCP.
Between 0-25 the same legal tests apply for an EHC needs assessment and Plan. For young people over 19, the local authority must also consider whether the young person requires additional time, when compared to others without special educational needs, to comply education or training.
Q. If a young person suffers an acquire brain injury, can they access an EHCP?
A. Yes. If the brain injury amounts to a disability the child or young person may well have acquired “special educational needs”.
Q. Can a local authority cease a Plan because a child or young person is not making progress in health or social care?
A. No. An EHCP can only come to an end if it is no longer necessary i.e. when they no longer require support for their education. Our full factsheet can be found here.
Q. At the Annual Review of an EHCP, should we expect to have reached short- and mid-term Outcomes?
A. Outcomes should be achievable. As such, it should be expected that some will be reached. However, reaching all Outcomes can be a trigger for the EHCP to come to an end.
Q. If a health need is identified, who is responsible for putting that in the EHCP? Who is responsible for providing it? Do we have to notify the Health team?
A. The local authority is responsible for drawing together all the advice from education, health and social care. It is for the special educational needs team at the local authority to prepare the EHCP. The health team is required to engage with the local authority in the development of the EHCP and should, therefore, have direct input into what is included.
The Health section of the EHCP is directly enforceable. S42 Children and Families Act 2014 requires that any Health provision specified within the EHCP must be provided.
As such, parents or anyone acting for the child or young person do not need to liaise with Health directly. The centralised body for all work towards the EHCP is the local authority SEN team. If a particular Health provision is sought, the SEN team should be advised of it. Any specialist health advice should be sent to the SEN team, not the health team. It is for the SEN team to inform and involve the Health team and for Health to provide its own advice.
If Health fail to engage in the process of preparing the EHCP but ultimately are required to provide something under an EHCP then that is their own failing. It will not mean that the child or young person is not entitled to receive that provision.
The Health team cannot impose additional criteria for services. If a provision is within the EHCP it must be provided, irrespective of any other policy or criteria.
Q. Can a Health need give rise to a right of appeal?
A. On the face of it, no. However, if the health need actually results in an Education need then potentially yes. For example, a dietary need requiring an adjustment by the school would be an education provision. If this is not included within the Education section of the EHCP this could give rise to a right of appeal.
Q. Do the SEND Tribunal pilot Regulations give a right of appeal against Health and Social elements of the EHCP?
A. No. The new Regulations mean that if an appeal is brought against the named ‘pilot’local authorities the tribunal can make recommendations about Health and Social care. However, the actual basis for the appeal must still be the special educational needs elements of the Plan.
Q. Who can attend mediation?
A. Unless it is a placement-only appeal, before you can appeal to the Special Educational Needs and Disability Tribunal about an EHCP, you must consider mediation. The Regulations set out who may attend mediation:
(a) the parents (or young person) and the local authority;
(b) an advocate for each party;
(c) where the child’s parent is a party to the mediation, the child (with the agreement of the parent and the mediator);
(d) any other person, with the consent of all of the parties to the mediation, or where there is no such agreement, with the consent of the mediator.
Q. Can parents recover the costs of having to appeal to the SEND Tribunal?
A. Typically, no. There are some very rare occasions when the Tribunal can make an Order requiring the local authority to pay the parents’ costs. This can only happen if the Tribunal consider that the local authority have behaved in such a way as to make it almost impossible to advance the appeal or has behaved in a way which is completely contrary to the Tribunal Procedure Rules. Costs awarded are typically low in value.
Q. Who pays for a young person to bring an appeal to the SEND Tribunal?
A. It is worth remembering that young people over 16 will have the right of appeal. This means that it is only the young person, not the parent, that can appeal.
If there is a trust fund, the fund may pay for the young person’s appeal.
The young person may qualify for legal aid, however, the legal aid regulations will require that the young persons’ parents’ finances are taken into consideration.
Ultimately, parents may have to pay their young person’s appeal costs. This could well give rise to significant questions of a conflict of interests if parents start to disagree with the young person about how the appeal should be resolved.
Q. How do university students get additional support, such as extra time in exams?
A. As a matter of law, the EHCP cannot continue until university.
Any additional support for university students will need to be accessed via the Disabled Students’ Allowance. Students will have to meet the definition of disability under the Equality Act 2010.
I am so happy at the outcome, I don't think we would have had such a comprehensive service from any other law firm, and you took the worry away...I do not regret a single second of the whole process, apart from the bit before you got involved.
James' mother, Boyes Turner client