Update on EHCPs - Boyes Turner provide training to Scope's Independent Supporters

We ran a training session on 16 September 2015 at Scope’s head office in London, reviewing the changes for children with special educational needs (SEN) a year after the Children and Families Act 2014 (CFA) came into force. The training was attended by Scope’s Independent Supporters and coordinators.

We had interesting discussions about how different local authorities (LAs) are putting the transition to the new SEN regime in place and how the Independent Supporters can best inform parents. There were recurring themes, mainly around the request for an Education, Health and Care (EHC) needs assessment and drafting the Education, Health and Care Plan (EHCP).

Request for an EHC needs assessment

The main points raised were:

  • LAs are refusing requests for an EHC needs assessment because the school has not put appropriate support in place before the request is made. Should children be penalised if schools delay or fail to provide adequate evidence of support?
  • Are LAs permitted to set up eligibility criteria when considering requests for EHC needs assessments?

The request for an EHC needs assessment can be made by parents, a young person (YP) or the school/college. The statutory test that the LA must consider is whether the child or young person (CYP) has or may have SEN and that it may be necessary for special educational provision to be made in accordance with an EHCP.

In most cases, before a request for an EHC needs assessment is made, the child will have been receiving Additional SEN Support. As part of this process the school should be assessing, planning, providing and reviewing support given to the child. If, despite this input, the child is still having difficulties, then this is the trigger for a request for an EHC needs assessment. If the school has been recording its Additional SEN Support, then there should be evidence to support the request. If, however, it transpires that the school has little or no documented evidence of its intervention, then the child should not be penalised. Either the request for an EHC needs assessment will be a trigger for the school to put more support in place, in which case parents can review it after a term or two, or parents or the YP will need to provide the following type of evidence:

  • Academic attainment and rate of progress
  • CYP’s physical, emotional, social and health development and how this relates to their education.

Paragraph 9.16 of the SEND Code of Practice 2015 (CoP) clearly states that LAs may develop their own criteria when considering requests for an EHC needs assessments but they cannot apply a ‘blanket’ policy. Each case must be considered individually.

Drafting the EHCP

The main concerns here were:

  • LAs are not including parents in discussions about their child’s needs, outcomes and support required
  • LAs are not carrying out a complete EHC needs assessment upon transition from a Statement to a Plan.

Section 19 of the CFA sets out the LA’s overriding duties under the new SEN regime.  It makes clear that local authorities must:

  • Have regard to the views, wishes and feelings of the child or young person and parents
  • Have regard to the importance of participation and to be provided with the tools necessary to enable participation
  • Support the child and his or her parents, or the YP to help them “achieve the best possible educational and other outcomes”.

Clearly, parents need to be fully involved in the process. That does not mean that the LA will agree with, for example, their desired outcomes for their child, but it does mean that their views must at least be considered.

A significant and persistent problem that we encounter is LAs not carrying out the full EHC needs assessment. The Department for Education clarified the law in its advice, Transition to the new 0-25 SEND system. In essence, the LA needs to seek advice from all appropriate professionals unless the LA, the person providing the advice, and parents or the YP are satisfied that existing advice is sufficient. Points that are likely to be considered are:

  • How recently advice was provided
  • Whether and how far the needs of the child or young person have changed since it was given
  • Whether it is sufficiently focused on the outcomes sought for the child or young person.

Even when the LA agrees to carry out a full assessment, there can be problems with getting reports because of a shortage of therapists. In a survey of its members by the Association of Educational Psychologists (AEP) in June 2015, 85% reported a marked increase in their workload during the previous six months – at the same time that the SEN reforms started. The government has funded an additional 18 training places (from 132 to 150) to try and curb the shortage but the AEP has warned that one-off funding will be insufficient in the long term. For more information see the article in Children & Young People Now.

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

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