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

Sadly DC whose parents know the system, can advocate for them and enforce their rights get better support. It shouldn’t be that way, but it isn’t going to change any time soon. LAs often start to take note when parents demonstrate they know the law and will enforce it.

I went in to this process with a lot of naivety but having read numerous threads on here with the same issues cropping up and the tactics used by local authorities, as well as what is happening with my own DC, it has dawned on me that it is a case of railroading your rights to get anywhere.

@WaitingForAWin yes I said,

should I not receive confirmation of either a date for LA EP assessment OR my privately commissioned EP report is being used instead then I will follow the LAs complaint process, should it then not be resolved in accordance with legislation, then due to the way the LA have unlawfully handled ‘childs’ assessment I will have no choice but to lodge a judicial review case against the LA.

Additionally, should the LA make the conscious decision to unlawfully delay ‘child’ needs assessment any longer, by way of refusing to accept my private EP assessment, then I will seek legal advise to investigate putting forward a case of Maladministration leading to injustice to the LGSCO.

feel free to use this.
x

Posting to say a ginormous thank you to all posters on this thread. I wrote to the DCS and put forward the argument of using the existing EP report and explaining I would not accept an unreasonable delay.

I received a response to advise that the SENCOP dictates the LA must use their own EP but DD has now been allocated and the assessment will start soon. The independent report will also be used for the LA EP to form advice. Thank you for giving me the information I needed to push this.

I am glad you have had progress.

I would email back asking where exactly the SENCOP dictates the LA must use their own EP and what the corresponding legislation is because the SENCOP states no such thing because Reg 6(4) SEN Regs 2014 and the 9.47 SENCOP states if the LA, report writer and parents agree the information is sufficient existing reports provided for any purpose should be used and new advice must not be sought.

The problem normally is getting the LA to agree it is sufficient but if they aren’t disputing this then a further EP assessment shouldn’t be undertaken.

@FloatingBean I will find which part of the SENCOP they’ve referred to.

@FloatingBean Section 9.49 of the SENCOP mentions the “EP should normally be employed or commissioned by the LA”. This is what our LA have referred to. It does appears to be a waste of time to re consult for the same advice.

Yes, it does. But legally “should normally” is not “must”. The SENCOP doesn’t state the LA must use their own EP, especially if they are going to breach the statutory timescales or not comply with the legislation in Reg 6(4) SEN Regs 2014 which states “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. “

@FloatingBean Both very good points! I have not yet responded so I shall mention this. My concern is that the LA report is not going to be as detailed as the independent one which will only benefit the LA.

Unfortunately unless you are lucky the LA EP report won’t be as detailed, specified and quantified as a good independent report. This is why LAs often claim existing independent reports aren’t sufficient, although that doesn’t appear to be the case for you.

@FloatingBean I specifically requested that the LA tell me if they don’t agree that the independent report is sufficient and their reasoning why, but as you’ve mentioned, they don’t appear to dispute this.

Would there be any negatives allowing them to use their own EP alongside the independent report? They have stated the existing independent report will be used to form the advice. The legal deadline should now be met which was the reason I was concerned about.

My thinking is if they then refuse to issue, the independent report would be considered by a judge anyway.

The only disadvantage is it is likely to be less detailed, specified and quantified. If the LA is going to finalise within 20 weeks and you think you are going to need to appeal anyway I would let them carry on and assess with the intention of appealing if they refuse to issue or the EHCP is vague and woolly.

The alternative is you refuse further assessment, which will mostly likely result in the LA refusing to issue. You will appeal and the LA will ask SENDIST to order an assessment. By this point the independent assessment is many months old and SENDIST agree to order said assessment.

@FloatingBean Thankyou. It appears it makes more sense to allow them to proceed as they are and then appeal the final plan if there are any inconsistencies.

Provided they do not breach the statutory requirements then I will just let it take its course.

How is everyone getting on with this?

The deadline for completing the EHCNA is less than one week away and to no surprise, there has been no EP assessment. I agreed to a minor delay but as no progress has been made (the school head is not even aware the EP will be attending school), it’s likely this will extend in to another 4-6 weeks, therefore throwing out the whole timeline and meaning DC will not be assessed before transition.

I am planning to contact the LA next week to again push for the use of the independent report or to assess asap or they will leave no option other than JR.

JR will take around four months; how likely are the LA to respond and complete at the threat of JR?

Very few actually get to a hearing. Sometimes the mere threat to the Director of Children’s Services works, but if not a pre-action letter mostly does. SOSSEN explain more about the timings and how few get to a hearing here under the FAQ “isn’t JR really slow”.

Am currently at week 23 without a draft report yet due to late LA EP advice. Have complained to Director of Children's Services. Case worker is saying only LA EP advice will be drawn upon for outcomes and provisions sections, in order to control costs. LA EP advice is almost all cut and pasted (selectively) from the independent assessment.

Am currently at week 23 without a draft report yet due to late LA EP advice. Have complained to Director of Children's Services. Case worker is saying only LA EP advice will be drawn upon for outcomes and provisions sections, in order to control costs. LA EP advice is almost all cut and pasted (selectively) from the independent assessment.

Equalbutdifferent if you haven’t emailed the Director of Children’s Services specifically threatening you should. If you have you should contact SOSSEN for help with a pre-action letter.

The advice must include needs, provision and outcomes.

@FloatingBean I will look at the link you’ve kindly posted.