Refusal to issue

[aprdilemma]

Got the dreaded phone call today. LA refused to issue an EHCP for my son. They claim there has been enough progress recently and school will be able to meet needs with basic SEN funding (starting Reception in Sept). I know it’s not true.
They have received a ton of professional reports (SLT, EP, OT, ASD/ADHD assessment) all recommending the same thing - mainstream with 1-1.
Feeling deflated. Mediation or appeal?
Called SENDIASS but was sent straight to voicemail.
Help

Appeal, the majority of appeals are upheld. Don’t bother with mediation, just get the certificate and submit to SENDIST, you only have to consider mediation not actively partake. LAs use mediation as a delaying tactic, if they are going to concede they will do so regardless of whether you actively partake in mediation or just get the certificate.

Be careful with SENDIASS, while some are helpful, some repeat the LAs unlawful policies. They receive LA funding so aren’t totally independent. IPSEA and SOSSEN are better.

Thanks! Just back from a meeting with the nursery manager, she is fully supportive and suggested to appeal too. Will have a look to IPSEA and SOSSEN, thank you

Agree - don't bother with mediation, just get the certificate and register the appeal asap.

Information here:

www.ipsea.org.uk/appealing-to-the-send-tribunal

www.ipsea.org.uk/appeals-against-a-refusal-to-issue-an-ehc-plan

Have a look at SOS SEN's booklets and webinars, I think they have one coming up on appeals against refusal to issue.

If the reports agree your daughter needs full time 1:1, you have a clear case. There is no way they could fund that within normal mainstream resources, which is the main criterion.

Agreed - appeal. Use the IPSEA resources or an Advocate if you are willing to pay but beware of SENDIASS. Some are not aways as independent of the LA as they could be.

Hi I understand how you feel. It’s so frustrating. My daughters school requested an EHCP assessment 10 months ago that was refused even though I paid £500 privately for an Educational Psychologist to assess her, In which he diagnosed her with severe dyslexia and dyscalculia. The LA refused to assess and requested the recommendations from the Ed Psyc be followed. 10 months on the school have gone above and beyond and another assessment request was applied for. Firstly the LA did not respond within the required 6 week timeframe. I emailed twice directly to the allocated family worker and did not receive a reply however a few days later was notified that the request had been declined due to not providing supporting evidence. With the application were approx 14 attachments showing IEP”s, timetables, school reports and an Ed psych report. I am so disappointed in there response as I believe they have in no way shape or form actually reviewed my daughters application. What makes it worse is the fact that in the refusal to assess letter they sent me on one particular paragraph the have actually called my daughter by a different name. Amy advice please? Should I agree to mediation or go straight to tribunal?

In your position I would get the mediation certificate and go straight to appeal. The LA has refused to assess twice now - it's unlikely they're going to change their mind at mediation. Some LAs use mediation as a stalling technique.

This is going to sound cynical but again some LAs seem to say 'no' to almost all EHCP assessments as they're playing a numbers game. I imagine there are parents/carers who for many reasons don't appeal so that's fewer Dc who the LA have legal obligations to support via an EHCP. Likewise, the longer a LA stalls/frustrates the EHCP process, that's another year of money saved.

I believe parents/carers win over 90% of appeals so the odds are very much in your favour.

Do read the Ipsea links posted up thread. That's a good place to start in terms of how to get your appeal started. It sounds like you've already got some good evidence - and you have the school on board, which helps.

I agree with toomanyminifigs, don’t bother with mediation, just get the certificate and submit to SENDIST. The vast majority of refusal to assess appeals are upheld.

First of all, I would direct you to your local "SENDIASS" service. Do this as a matter of urgency as they can support you with your appeal. Mediation can be useful process as it brings, yourself, school and the L.A into one room to discuss where the application has failed. Depending on the situation, some refusals can be overturned there and then, or they can go back to the "panel" to be reconsidered.

If we consider the Children and Famiies Act, an assessment MUST be conducted if the child has or "may" have SEN and MAY request specialist provision to be made in the form an EHCP (this is paraphrased). As you can see, the threshold for an assessment is low. What I tend to find, is that assessments meet the first part of the criteria "may have SEN". This is of course, very easy to prove. Where it fails is "needing specialist provision from an EHCP"

You also need to bare in mind what people are telling you on the forum. As the the L.A do have their own policies on how they assess whether or not an "EHCP" is necessary. For example, the L.A like to see that the school have exhausted their SEN budget (6k near me), they like to see that all external agencies have been utilized (for example educational psychologists and outreach services) and they like to see that the child is not making any progress despite interventions. So while some of those comments are correct in the sense that the L.A should only take into consideration the two part legal test, how they ASSESS the second part of the test is through the above. It might be, that the school need a bit of support with demonstrating this via their "graduated response" (hence why i suggest mediation)

If you do skip to the tribunal, just ring your mediation service and tell them you have "considered" mediation and you would like your mediation certificate. This will allow you to appeal. Simple form, download and complete "SEND35a) and complete and send to "[email protected]" its all based on the paperwork so you are not require to attend at a tribunal.

Regards,

newdad2022

google SEND My experiences vary... but often i find the L.A can't be bothered appealing a refusal to assess, it's just a waste of time and costly.

If you want any further advice just send me a message.

IPSEA and SOSSEN are better than SENDIASS. In many LAs SENDIASS are the LAs mouthpiece and repeat their unlawful policies.

Local policy doesn’t trump the law. LAs may like to see £6k has been spent and external agencies used, but if they refuse an EHCNA request because of it they are acting unlawfully. Parents don’t need e.g. an EP assessment to apply, in fact, in many schools there isn’t the funding for providing one. An EP assessment must be part of the EHCNA.

Alternatively mediation wastes time and LAs use it to drag the situation out and out. If the LA are going to concede they will do so regardless of whether the parent actively partake in mediation or just get the certificate and submits to SENDIST. Not partaking in mediation doesn’t have to stop parents and LAs communicating.

A MN’er once proved via a FOI request that the ‘panel’ the LA claimed was part of the EHCP process in their LA didn’t actually exist.

I respectfully disagree. I'll not repeat my advice above, as it is already there for the parent to read. However, lodging an appeal does not guarantee a victory. Despite my experience of Local Authorities "backing down" to refusal to assess appeals, some local authorities will challenge the decision, and if they do you are talking a good 4-5 months to be seen. Mediation can lead to either an "overturn" or a "back to panel" decision, to resolve the issue which is a significantly quicker turnaround.

With regards to the law, it sounds like you're off the mark slightly. As already stated, the two part legal test is

1. Might have SEN
2. Might need SEP provided through an EHCP

1. So, how do you evidence SEN? School reports, diagnosis, etc. All fairly straight forward.
2. How does the L.A conclude that SEP might not be necessary? Information gathering, academic reports, professional reports, recommendations from specialists etc. If the L.A can conclude that a Childs SEN needs can be met within the school setting from the resources they have, you can't blame them. They are not "acting unlawfully" by evidencing the legal test which they are required to show. They are simply saying "based on the evidence provided, we don't think this case meets both part of the test" Ultimately a judge will decide this at tribunal. However, just be aware that in a refusal to assess case, the onus or "burden of proof" is on the parent to show why an EHCP is necessary.

Regards,

Newdad2022

Obviously lodging an appeal does not guarantee success, nowhere did I post it did, but the vast majority of refusal to assess appeals are upheld. Statistics also show a proportion of appeals don’t make it as far as a hearing. Again, obviously not all are conceded, but it is not a minuscule proportion either. Some LAs concede as soon as the LA sees the parents are serious about appealing.



With regards to the law, it sounds like you're off the mark slightly. As already stated, the two part legal test is

1. Might have SEN

2. Might need SEP provided through an EHCP

No, I am not “off the mark slightly” . The legal test of a) has or may have SEN, and b) it may be necessary for SEP to be made for via an EHCP does not require proof £6k has been spent, nor do they require external agencies to be involved or any other hoop the LA require such as 2 assess/plan/do/review cycles. Of course evidence may include it, but blanket policies that they are required are not necessary and, yes, they are unlawful. There are many ways of evidencing the second part of the test, £6k and external agency involvement are not essential. You are mistaken if you believe they are.

refusal to assess case, the onus or "burden of proof" is on the parent to show why an EHCP is necessary.

No, it is not, a parent does not have to prove an EHCP is necessary, only that it may be. Vast difference.

Again, I think you have misunderstood slightly. You can't just tell people "the legal test, the legal test" how do you think these "tests" are being met? Now, I am not suggesting that the L.A requires proof of their SEN spending, that was merely an example of evidence gathering. (which is how you seem to have read my comment)

I would strongly suggest you read the code of practice which reiterates my point about gathering evidence to demonstrate part two of the test: There is nothing "unlawful" about the L.A considering the below.

" paragraph 9.14 the Code states that “the local authority should consider whether there is evidence that despite the early years provider, school or post-16 institution having taken relevant and purposeful action to identify, assess and meet the special educational needs of the child or young person, the child or young person has not made expected progress”. The LA should pay particular attention to:

evidence of the child or young person’s academic attainment (or developmental milestones in younger children) and rate of progress;
information about the nature, extent and context of the child or young person’s SEN;
evidence of the action already taken by the school or other setting;
evidence that where progress has been made, it has only been as the result of much additional intervention and support over and above that which is usually provided;
evidence of the child or young person’s physical, emotional and social development and health needs, drawing on relevant evidence from clinicians and other health professionals and what has been done to meet these by other agencies."

As you can see, when people say "the legal test is the only thing they should be considering" the L.A actually need a method of "considering it" do you understand? There is nothing "unlawful" about saying the evidence doesn't support the test which we have applied? I can't make it any clearer than that, I am sorry. If you have any further questions, I will do my best to answer them.

Regards,

newdad2022

Again, I have not “misunderstood slightly”, as you like to put it. You posted ”As the the L.A do have their own policies on how they assess whether or not an "EHCP" is necessary. For example, the L.A like to see that the school have exhausted their SEN budget (6k near me), they like to see that all external agencies have been utilized (for example educational psychologists and outreach services)” And I replied saying LA policy doesn’t trump the law, and the LA may like it but they cannot insist on it, as that is unlawful. And such blanket policies are unlawful. Whether you accept that or not.


I would strongly suggest you read the code of practice

I have, how condescending are you? I have 2 DC with excellent EHCPs. No where in the code of practice does it say £6k or external professionals are required.

evidence of the child or young person’s academic attainment (or developmental milestones in younger children) and rate of progress;
information about the nature, extent and context of the child or young person’s SEN;
evidence of the action already taken by the school or other setting;
evidence that where progress has been made, it has only been as the result of much additional intervention and support over and above that which is usually provided;
evidence of the child or young person’s physical, emotional and social development and health needs, drawing on relevant evidence from clinicians and other health professionals and what has been done to meet these by other agencies.

None of these mean spending £6k or external agencies are essential.

Considering all information and then refusing to assess is different to refusing because £6k hasn’t been spent or external agencies aren’t involved or 2 assess/plan/do/review cycles haven’t been carried out or the child isn’t 2+yrs behind or any other myth LAs like to spout, which IS what you insinuated. Refusing because one of the latter reasons hasn’t happened is unlawful.

Case law shows it is even possible to secure an EHCNA when the school could do more, but won’t. MC v Somerset County Council (SEN) [2015] UKUT 0461 (AAC). It is important to look at whether a child’s needs will be met without an EHCP, not just can they be - JP v Sefton MBC [2017] UKUT 0364 (AAC) and DH & GH v Staffordshire CC [2018] UKUT 49 (AAC). Again there are various ways of evidencing this, £6k and external agencies are just 2.

You can also secure an assessment on the basis of an assessment is necessary because without a needs assessment one cannot know what SEP is necessary. C v Somerset CC HS/718/2015


do you understand?

Again, how condescending are you! I could say the same about you as you seem to believe the LAs myths.

If you have any further questions, I will do my best to answer them.

Nothing like a bit of mansplaining.

I am going to cease this discussion for now, as it's not really adding to the advice already given, and you seem to hyper focused on the element 2 funding, which I mentioned once as a means of explaining how local authorities gather evidence. I've already explained proving 6k is not "required" it is merely an example as to how they can gather information. At this point the discussion is just going to bamboozle somebody looking for advice and support. Apologies if you think this is being "dumbed down"

Regards,

newdad2022

I don’t know what happened to the formatting in my pp.

The SENCOP doesn’t overrule statutory legislation such as the CAFA either. Case law Devon CC v OH [2016] UKUT 0292 (AAC) and Staffordshire CC v JM [2016] UKUT 0246 (AAC).

The Noddy guide specifically covers the SENCOP not being aligned with the CAFA and states ”Note that COP2015 identifies additional considerations and factors which bear little resemblance to the statutory test – see COP2015 #9.14 (with its focus on progress made and related matters).” It later clarifies the SENCOP doesn’t trump statutory legislation such as the CAFA either. (Devon CC v OH [2016] UKUT 0292 (AAC) and Staffordshire CC v JM [2016] UKUT 0246 (AAC)).

Perhaps you are one that needs to do more reading.

I am not hyper focused, just correcting the myth there is any other legal test and that the myth of £6k needs to have been spent and outside agencies are needed are just that, myths. If you didn’t believe it was part of the test why mention LAs often use it in their own policies?

Hi all, thanks for your replies and advice. I agreed to mediation however the LA failed to respond and arrange a meeting within 30 days so I now have to appeal through a tribunal. I have also sent a complaints letter to the LA and the EHC referrals hub. I have had a response saying me complaint has been sent to the FPL for my area. Can anyone tell me what FPL stands for?