Delaying an EHCNA by waiting for a duplicate report. Is this allowed?

[WaitingForAWin]

My DD is currently being assessed for an EHCP. Prior to requesting the EHCNA, I had her assessed by an independent EP and I provided the local authority with the report.

The local authority have advised me that they are very likely to breach assessment timescales due to a shortage of EPs; they’ve advised that my DD is currently on a waiting list to be assigned an EP but with no view of when this will happen.

This is absurd as they already have an independent EP report and it appears they are causing avoidable delays. Is there anything I can do about this?

TIA

There are 2 issues.

1.A lack of staff/resources is not a lawful reason to breach the statutory timescales. If LAs can’t access in-house within the timescales they must commission independent assessments. Email the LA’s Director of Children’s Services informing them if they breach the timescales you will be forced to begin judicial review proceedings.

1. The existing report can be used if the LA, you and report writer agree it is sufficient. If all agree it is sufficient the LA must not seek a further report - Reg 6(4) SEN Regs 2014. How old is the report? Have you asked why the LA don’t consider it sufficient? Many LAs say they don’t agree because their own reports are less detailed, specified and quantified.

I am awaiting a response as to why they have not used the report I have sent them. I have made it clear that awaiting a further assessment from an EP is going to cause avoidable delays. The LA have specifically stated that there are going to be significant delays to issuing or finalising a plan due to waiting for this report. It’s nonsensical.

Based on your advice above, I’m going to push this, it is unnecessary delay tactics. I appreciate your very helpful reply

If you haven’t already email the Director of Children’s Services and use the words judicial review. Often emailing the Director of Children’s Services and threatening judicial review gets their attention because they see you are serious and will enforce DC’s rights.

Out of interest, are you in the north, @WaitingForAWin?

Have just been through this myself. LA late because of EP capacity even though a 'more than sufficient' independent report was available. Remedy for unlawful delay would be LA to commission independent report....

They need to comission a private report of they have none of theirs available. Additionally your child cannot be assessed in the same thing within 6 months so if you already have a report, their reasoning is bs.

@FloatingBean The local authority have responded to advise that whilst they will consider the independent EP report, they must also seek advice from their own EP as part of the statutory assessment. They also stated that for this reason there will be significant delays to complete the assessment and that this is a nationwide issue.

The independent report is less than four months old and was completed by a regulated professional EP. The report clearly outlines DC SEN, provision and outcomes. I have now asked to escalate to the DCS as I believe it’s unnecessary to cause such delays when the EP evidence is there.

Must EP advice be obtained in house or can independent EP assessments be used? Surely it won’t matter as long as some EP advice is obtained?

@stopthepigeon I’m in the Midlands. Do you mind sharing what your outcome was?

The LA has stated that they do not commission private reports even if timescales will be breached. We just have to wait (I understand that there’s around a three month wait for EPs).

They are correct that they also have to seek their own evidence. What they need to do is commission a private EP to do this if their in house one is not available within the time period. The EP won't be able to assess your child in the areas they've already been assessed in the last 6 months, ensure they know this.

@Dodgeitornot I do think that this is a real attempt at delay tactics. It makes no logical sense for them to refuse an independent EP report when they can not do their own.

@Dodgeitornot Oh so they do need to use their in house EP too?

They have stated that they will not commission a private EP as there are no private EPs available. I do know this to be true as I waited a long time for the private EP myself.

DC had a full EP assessment and was assessed over and beyond what I believe their EP will assess for. I don’t know what else they could possibly assess for.

The LA has stated that they do not commission private reports even if timescales will be breached. We just have to wait (I understand that there’s around a three month wait for EPs).

You don’t have to wait. If the LA breach the timescales you can force them to comply, via judicial review if necessary. Independent assessments can be obtained and used. If the LA can’t assess in-house within the timescales they must commission independent advice. See this IPSEA page.

They are correct that they also have to seek their own evidence.

No they aren’t. It isn’t as straightforward as that. Existing reports can be used if the LA, report writer and parents agree is sufficient. If all agree they are sufficient then the LA must not seek new advice, Reg 6(4) SEN Regs 2014 states this. Unfortunately LAs often argue existing reports aren’t sufficient.

Professionals can’t repeat tests/exercises but can use other methods to test the same area(s) of need. There are often various tests to measure the same thing.

They have stated that they will not commission a private EP as there are no private EPs available. I do know this to be true as I waited a long time for the private EP myself.

If they try hard enough and pay well enough they will be able to commission an independent assessment within the timescales.

@FloatingBean Will I need them to commission an independent EP if I already have one?

There is no doubt they will breach timescales if they want to do another EP report and they’ve openly told me this.

The existing independent EP report is less than four months old and I (and the author) would certainly agree that it is sufficient.

I will need to learn about judicial review. I am out of my depth.

If the LA doesn’t agree the existing one is sufficient.

@FloatingBean I shall contact the DCS and request they confirm whether the report is sufficient or not.

If they do not agree it’s sufficient and inevitably breach timescales, I could start a judicial review?

Yes. Normally a pre action letter is sufficient to give them a kick into action. www.ipsea.org.uk/judicial-review

You can write one yourself or comission a solicitor.

I’m extremely grateful for all advice on this thread and for the links. I need to spruce up on judicial reviews!

SOSSEN charge very little for their pre action letters. Get their advice. Honestly often this is enough to scare them.

Yes, you can pursue judicial review proceedings. Before paying for a pre-action letter email the Director of Children’s Services threatening JR as sometimes the threat works. If not a pre-action letter (unless you know what you are doing don’t attempt to write your own) mostly does. Few get to an actual hearing

Hi 👋🏼
Ive had the exact same problem, we’re in Essex, DS got agreement to assess 23rd Dec, had the same excuse made about EP delays etc and also had funded private EP report in Nov to help with EHC app.
I’ve battled it out with our caseworker, repeatedly cc’ing in her boss and finally today I got the phonecall saying they have had approval that they can use my private EP report instead of waiting. They said it had to be checked out as her words “there are good eps and bad ones” thankfully for us I sourced a private EP who actually used to work for Essex LA and his report was done in preschool setting which is a big factor.
hope this helps.

@Awood Thanks for sharing; I’m more determined that it can be done. I’m confident the EP we have used is more than sufficient. The EP we used also previously worked for a local authority and the assessment was conducted in school with DC.

I’ll await a response having asked whether they agree if the report is sufficient . I am reluctant to make a nuisance of myself but it makes no sense to not use the report if the whole reason for the delay is access to an EP.

@WaitingForAWin I used to worry so much about being a nuisance but sage to say l I’m over it now, think sometimes it’s the only way you get heard. I sent a rather scathing email when I had had radio silence from them for five weeks after they said they’d check with superiors to see if EP report could be used. Once I’d threatened legal action safe to say it had all got moving and now accepted a week later.
hope you get to where you need to be soon

@Awood You mention threatening legal action, was this in the form of threatening judicial review which the other posters have mentioned?

There’s such brilliant advice on this thread, I am going to push this as I’m confident it is a way of delaying.

Honestly, I used to be reluctant to make a nuisance of myself until they didn't give a crap my DD wasn't getting the help she needed. They are happy to delay and delay but bank on parents to feel like they're a nuisance do won't do anything.