Seeking an EHC assessment

One of the enduring problems that local authorities often get into a tangle about, is failing to deal with properly with requests for an EHC needs assessment. The starting point is always the legislation. Section 36 of the Children and Families Act 2014 provides as follows:

(1) A request for a local authority in England to secure an EHC needs assessment for a child or young person may be made to the authority by the child’s parent, the young person or a person acting on behalf of a school or post-16 institution.

(2) An “EHC needs assessment” is an assessment of the educational, health care and social care needs of a child or young person.

(3) When a request is made to a local authority under subsection (1), or a local authority otherwise becomes responsible for a child or young person, the authority must determine whether it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

(4) In making a determination under subsection (3), the local authority must consult the child’s parent or the young person.

Section 36 (1) to (4) couldn’t be clearer. This is a two stage process, where the procedure set out in the first part of the section requires a local authority to make a screening decision as to whether “it may be necessary” for special educational provision to be made in accordance with an EHC plan.

If the local authority decide to screen out the child or young person, on the grounds that it is clear that it is “not necessary”, then a statutory duty is imposed on the local authority to communicate that decision: with reasons.

(5) Where the local authority determines that it is not necessary for special educational provision to be made for the child or young person in accordance with an EHC plan it must notify the child’s parent or the young person—

(a) of the reasons for that determination, and

(b) that accordingly it has decided not to secure an EHC needs assessment for the child or young person.

More detail of the process is provided in regulation 4 of the Special Educational Needs and Disability Regulations 2014 where it states:

(1) Where a local authority determines that it is not necessary for special educational provision to be made in accordance with an EHC plan it must notify the child’s parent or the young person in accordance with section 36(5) of the Act as soon as practicable, but in any event within 6 weeks of—

(a) receiving a request for an EHC needs assessment under section 36(1) of the Act, or(b) becoming responsible for the child or young person in accordance with section 24 of the Act.

(6) Subsection (7) applies where—

(a) no EHC plan is maintained for the child or young person,

(b) the child or young person has not been assessed under this section or section 71 during the previous six months, and

(c) the local authority determines that it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

Where the local authority is satisfied that it “may” be necessary for special educational provision to be escalated through the making of an EHC plan, then the local authority must undertake a more formal, or authoritative evaluation of whether an ECH needs assessment is required, with a duty of consultation with the parents or young person directly to encourage them to put forward their views and submit evidence to support or indeed to contradict the conclusion that an EHC needs assessment should be carried out.

(7) The authority must notify the child’s parent or the young person—

(a) that it is considering securing an EHC needs assessment for the child or young person, and

(b) that the parent or young person has the right to—

(i) express views to the authority (orally or in writing), and

(ii) submit evidence to the authority.

In addition the balance of regulation 4 of the Special Educational Needs and Disability Regulations 2014 adds more flesh to the bones of the statute, setting out further and additional consultation that must be done, when determining whether or not an EHC Plan is called for. The regulation provides:

(2) Where the local authority is considering securing an EHC needs assessment it must also notify—

(a) the responsible commissioning body;

(b) the officers of the local authority who exercise the local authority’s social services functions for children or young people with special educational needs;

(c) in relation to a child—

(i) if the child is a registered pupil at a school, the head teacher of that school (or the person holding the equivalent position), or

(ii) if the child receives education from a provider of relevant early years education, the person identified as having responsibility for special educational needs (if any) in relation to that provider; and

(d) in relation to a young person—

(i) if the young person is a registered pupil at a school, the head teacher of that school (or the person holding the equivalent position), or

(ii) if the young person is a student at a post-16 institution, to the principal of that institution (or the person holding the equivalent position).

The threshold for deciding to undertake an EHC needs assessment is low: again, if there “may” be special educational needs and “may” be a need for an EHC plan then the local authority should resolve to carry out an EHC assessment.

(8) The local authority must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted under subsection (7), the authority is of the opinion that—

(a) the child or young person has or may have special educational needs, and

(b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

The statute then imposes a duty on the local authority to notify the parents or young person, with reasons for their decision to secure an EHC plan, or not, as the case may be.

(9) After an EHC needs assessment has been carried out, the local authority must notify the child’s parent or the young person of—

(a) the outcome of the assessment,

(b) whether it proposes to secure that an EHC plan is prepared for the child or young person, and

(c) the reasons for that decision.

The statute also requires a local authority, not to write off young people on the basis of their chronological age, if they in fact might require additional time beyond the age of 18 to undertake their education, when undertaking its determinations.

(10) In making a determination or forming an opinion for the purposes of this section in relation to a young person aged over 18, a local authority must consider whether he or she requires additional time, in comparison to the majority of others of the same age who do not have special educational needs, to complete his or her education or training.

The statute also cascades down further provisions, to be made in regulations:

(11) Regulations may make provision about EHC needs assessments, in particular—

(a) about requests under subsection (1);

(b) imposing time limits in relation to consultation under subsection (4);

(c) about giving notice;

(d) about expressing views and submitting evidence under subsection (7);

(e) about how assessments are to be conducted;

(f) about advice to be obtained in connection with an assessment;

(g) about combining an EHC needs assessment with other assessments;

(h) about the use for the purposes of an EHC needs assessment of information obtained as a result of other assessments;

(i) about the use of information obtained as a result of an EHC needs assessment, including the use of that information for the purposes of other assessments;

(j) about the provision of information, advice and support in connection with an EHC needs assessment.

Of these, regulation 5 of the Special Educational Need and Disability Regulations 2014 is particularly pertinent:

(1) The local authority must notify the child’s parent or the young person as soon as practicable and in any event within 6 weeks of—

(a) receiving a request for an assessment under section 36(1) of the Act, or

(b) becoming responsible for the child or young person in accordance with section 24 of the Act of its decision whether or not it is necessary to secure an EHC needs assessment for the child or young person.

There is a further obligation to notify the consultees, and a specific duty to notify the disappointed parents or young person:

(2) The local authority must also notify the persons who were notified in accordance with regulation 4(2) of its decision.

(3) When notifying the child’s parent or the young person of its decision that it is not necessary to secure an EHC needs assessment for the child or young person, it must also notify them of—

(a) their right to appeal that decision;

(b) the time limits for doing so;

(c) the information concerning mediation, set out in regulation 32; and

(d) the availability of—

(i) disagreement resolution services; and

(ii) information and advice about matters relating to the special educational needs of children and young people.

(4) The local authority need not comply with the time limit referred to in paragraph (1) if it is impractical to do so because—

(a) the local authority has requested advice from the head teacher or principal of a school or post-16 institution during a period beginning one week before any date on which that school or institution was closed for a continuous period of not less than 4 weeks from that date and ending one week before the date on which it re-opens;

(b) the authority has requested advice from the person identified as having responsibility for special educational needs (if any), in relation to, or other person responsible for, a child’s education at a provider of relevant early years education during a period beginning one week before any date on which that provider was closed for a continuous period of not less than 4 weeks from that date and ending one week before the date on which it re-opens;

(c) exceptional personal circumstances affect the child, the child’s parent, or the young person during the time period referred to in paragraph (1); or

(d) the child, the child’s parent, or the young person, are absent from the area of the authority for a continuous period of not less than 4 weeks during the time period referred to in paragraph (1).

Regulation 5(4) is a statutory embodiment of the principle that in the world of education August “doesn’t count” and the special educational needs procedure effectively hits the buffers, during the school summer holiday. This principle also finds reflection in the time limits for making an appeal to the First Tier Tribunal, as I shall examine in a later post.

As will be seen from section 36(11), all the detail as to how an ECH assessment is actually to be conducted, is contained in the Regulations. Regulation 6 is prescriptive of the information that must be obtained:

(1) Where the local authority secures an EHC needs assessment for a child or young person, it must seek the following advice and information, on the needs of the child or young person, and what provision may be required to meet such needs and the outcomes that are intended to be achieved by the child or young person receiving that provision—

(a) advice and information from the child’s parent or the young person;

(b) educational advice and information—

(i) from the head teacher or principal of the school or post-16 or other institution that the child or young person is attending, or

(ii) where this is not available, from a person who the local authority is satisfied has experience of teaching children or young people with special educational needs, or knowledge of the differing provision which may be called for in different cases to meet those needs, or

(iii) if the child or young person is not currently attending a school or post-16 or other institution and advice cannot be obtained under sub-paragraph (ii), from a person responsible for educational provision for the child or young person, and

(iv) if any parent of the child or young person is a serving member of Her Majesty’s armed forces, also from the Secretary of State for Defence;

(c) medical advice and information from a health care professional identified by the responsible commissioning body;

(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 child or young person 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; and

(h) advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from.

(2) Where it appears to the authority, in consequence of medical advice or otherwise, that the child or young person in question is either or both—

(a) hearing impaired;

(b) visually impaired,

and any person from whom advice and information is sought as provided in paragraph (1)(b) is not qualified to teach children or young people who are so impaired, then the advice sought shall be advice given after consultation with a person who is so qualified.

(3) When seeking advice in accordance with paragraph (1)(b) to (h), the local authority must provide the person from whom advice is being sought with copies of—

(a) any representations made by the child’s parent or the young person, and

(b) any evidence submitted by or at the request of the child’s parent or the young person.

(4) The local authority must not seek any of the advice referred to in paragraphs (1)(b) to (h) if such advice has previously been provided for any purpose and the person providing that advice, the local authority and the child’s parent or the young person are satisfied that it is sufficient for the purposes of an EHC needs assessment.

To ensure that the wealth of professional advice does not drown out the voices of the parents or the young person, there are specific statutory duties placed on the local authority:

When securing an EHC needs assessment a local authority must-

(a) consult the child and the child’s parent, or the young person and take into account their views, wishes and feelings;

(b) consider any information provided to the local authority by or at the request of the child, the child’s parent or the young person;

(c) consider the information and advice obtained in accordance with regulation 6(1);

(d) engage the child and the child’s parent, or the young person and ensure they are able to participate in decisions; and

(e) minimise disruption for the child, the child’s parent, the young person and their family.

It is meant to be a holistic process, with other interested bodies, under their own obligations to provide information or consultative views, within a set and reasonably tight timeframe:

(1) Where a local authority requests the co-operation of a body in securing an EHC needs assessment in accordance with section 31 of the Act, that body must comply with such a request within 6 weeks of the date on which they receive it.

(2) A body need not comply with the time limit referred to in paragraph (1) if it is impractical to do so because—

(a) exceptional circumstances affect the child, the child’s parent or the young person during that 6 week period;

(b) the child, the child’s parent or the young person are absent from the area of the authority for a continuous period of not less than 4 weeks during that 6 week period; or

(c) the child or young person fails to keep an appointment for an examination or a test made by the body during that 6 week period.

Not all families will be engaged middle class parents, with sharp elbows. The local authority must specifically consider how to tailor the information that is provided, so that the parents or young person can engage with the assessment in a meaningful way:

When securing an EHC needs assessment the local authority must consider whether the child’s parent or the young person requires any information, advice and support in order to enable them to take part effectively in the EHC needs assessment, and if it considers that such information, advice or support is necessary, it must provide it.

Finally the Regulations deal with the consequences of the assessment, where a decision is made, or not, as the case may be to provide an EHC plan:

(1) Where, following an EHC needs assessment, a local authority decides that it is not necessary for special educational provision to be made for a child or young person in accordance with an EHC plan, the notification given in accordance with section 36(9) must be given as soon as practicable, and in any event within 16 weeks of the local authority receiving a request for an EHC needs assessment in accordance with section 36(1) of the Act, or of the local authority becoming responsible for the child or young person in accordance with section 24 of the Act.

Again, to maintain a holistic approach the consultees must be notified:

(2) It must also notify the responsible commissioning body and the person notified in accordance with regulation 4(2)(c) or (d).

(3) When notifying a child’s parent or young person in accordance with paragraph (1) the local authority must also notify them of—

(a) their right to appeal that decision;

(b) the time limits for doing so;

(c) the information concerning mediation, set out in regulation 32; and

(d) the availability of—

(i) disagreement resolution services; and

(ii) information and advice about matters relating to the special educational needs

of children and young people.

(4) The local authority need not comply with the time limit referred to in paragraph (1) if it is impractical to do so because—

(a) the authority has requested advice from the head teacher or principal of a school or post-16 institution during a period beginning one week before any date on which that school or institution was closed for a continuous period of not less than 4 weeks from that date and ending one week before the date on which it re-opens;

(b) the authority has requested advice from the person identified as having responsibility for special educational needs (if any) in relation to, or other person responsible for, a child’s education at a provider of relevant early years education during a period beginning one week before any date on which that provider was closed for a continuous period of not less than 4 weeks from that date and ending one week before the date on which it re-opens;

(c) exceptional personal circumstances affect the child or the child’s parent, or the young person during that time period ; or

(d) the child or the child’s parent, or the young person, are absent from the area of the authority for a continuous period of not less than 4 weeks during that time period.

If an EHC plan is however, to be provided, then in a sense that is only the end of the first stage of the process, as the EHC plan must now evolve through a tortuous process, to ensure that a child’s special educational needs are identified, that special educational provision is prescribed for those needs, and an appropriate placement found, which may be in a mainstream school, but may not be, depending on what provision is required to meet the needs.

 

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