Should we only use an EP who can support at tribunal?

[SpaceInvader321]

We're looking into private EPs as our children's schools have said neither child will be seen by the school EP until next school year. Most private ones are booked until Sep/Oct but even that would likely be sooner than the schools can provide.

My question is: does it make sense to use any good EP we can get an appointment with or should we specifically look for one who could support at tribunal?

We're not sure if either child would qualify for an EHCP (both are very likely ASC and ADHD but no diagnosis yet, plus one has some learning issues) or if we'd end up at tribunal, but if we're shelling out for a private assessment, which would be a huge stretch for us financially at the moment, would it be better to go with an EP who could help with a tribunal?

If we get an assessment from an EP who can't do the tribunal stage, would it cause a delay with the tribunal or significantly add to costs to have to instruct a new EP to help at that point?

(Is there any special qualification needed to support at tribunals or is it just a choice the EP makes about the services they offer?)

Thank you!

I'm not quite sure what you're asking here. Are you asking about if an EP would physically come to a tribunal to give 'evidence' for you? If that's the case, I think it's very unlikely. It may happen but I've never known anyone take an EP to a tribunal hearing. If they do then there would be a hefty fee as you're basically booking them for a day plus travel.

The tribunal judge will be looking at the paper reports from all the professionals. (It's worth noting that reports should ideally be within the last 12 months.)

What are you hoping to get from an EP assessment at this stage? Have you looked into the criteria for an EHCP needs assessment? There's some good info here. The legal bar for an EHCP needs assessment is pretty low (whatever the local authority/school may say). If your DC are turned down, appeal.

https://www.ipsea.org.uk/ehc-needs-assessments

Your DC will be seen by an EP as part of the needs assessment process. You don't need a diagnosis for an EHCP - it's based on need.

It sounds like you have two DC who you are advocating for? If that's the case you could be looking at £3-4,000 for two EP reports which is obviously a lot of money.

My DS was seen by the local authority EP (after I had to threaten the LA with legal action) and she was amazing. She produced an excellent, detailed report so it's not always the case that private EPs are necessarily better. It is the case that there's a huge shortage of EPs though but if you read up on the law and push the LA, they will have to provide one as part of the needs assessment process.

If you are turned down for a needs assessment then it could be worth commissioning a private EP report at that stage.

If you think you are going to apply for an EHCNA any time soon then I would only use someone with SENDIST experience who could write a Tribunal standard report, whether you intend to ask them to be a witness or not. Seeking a new report wouldn’t have to delay an appeal, but if you needed a new independent assessment it would add cost. Even if you seek an independent assessment now you may need an updated report if you appeal at a later date.

Personally, if you are going to apply for an EHCNA I wouldn’t seek an EP assessment yet unless money is no issue. You don’t need one (or a diagnosis) prior to applying. If the LA agree to assess an EP assessment will be part of the EHCNA. If the LA e.g. agree to assess but then refuse to issue by the time you get to an appeal hearing it may well be out of date. Previously reports were considered up to date for around 2 years but over the last few years SENDIST have considered much younger reports out of date. Also, you may find the LA’s EP report is OK, but you need to prioritise independent SALT and OT.

@Toomanyminifigs parents do sometimes ask professionals, including EPs, to be witnesses at appeals. They do charge, yes.

Interesting. Thank you @FloatingBean . I guess I've not come across anyone going to a tribunal with experts due to the costs. I'm assuming the cost of a private report plus their day fee would be prohibitive for many. I would like to think that if the report is detailed - ie quantified and specified - then that would suffice in most instances.

Many don’t have any witnesses, but equally it isn’t rare either.

Thank you, both. I really appreciate the input.

I know that the LA will have an EP do an assessment as part of an EHCNA but that process seems very distant right now and everything seems to be moving so slowly already. Plus the private EPs have long waits too, so if we wait until the autumn and find that the school EPs were still months away, it will probably be impossible by then to book anything quicker with the private ones...

I only just got both schools to start doing anything resembling the Assess Plan Do Review process this past term and I'm so worried about both of my children: the Y5 kid has learning issues, the Y7 kid has a lot of emotional and social issues and anxiety. I'm really worried about applying for secondary schools for the younger one without a clearer sense of his needs. Having to wait until next school year to do any formal assessments and try to figure out where they need help seems like such a long delay. OTOH, the private assessments are so expensive we do need to be strategic about what we fund privately (if anything). I just I don't want to feel like I'm doing nothing to get them the help they need. 😟

You can apply for EHCNAs now you don’t need to wait.

Do you have evidence of SEN? I.e are they on the school SEN register? Might they benefit from a plan? Likely maybe, but until needs assessment done who can say. All you need to do is submit a letter to the LA requesting an assessment (schools/LA try to delay by saying need to gather evidence, but in reality it doesn't help much, time just moves on). IPSEA have a template letter to apply. Start with that and I advise appealing when they refuse assessment, but again you still don't need reports, you do need evidence like reviews of any individual learning plans.

Can I ask if you're pursuing a diagnosis for either of your DC? A diagnosis isn't needed for an EHCP but it can help in many ways, not least for a DC to understand why it is they find certain things difficult. I mention this as where I am, there's currently a 2 to 3 year wait for an ASD assessment.

As others have said, you don't need to wait to put in a needs assessment request. Some schools/local authorities may say they need to go through cycles of 'assessment/review plans'. This can be used as a stalling tactic. I'm sorry to say that some use whatever (illegal) tactics they can to play for time until the DC then gets to school leaving age.

My concern for your YR5 child is that the school knows they only have to keep you at arm's length for another year and then you will cease to be their problem. I know this sounds cynical and hopefully your DC's school isn't like this but I've seen it time and time again.

It could take you around a year - if not longer given current tribunal wait times - to go through the EHCP process if you're turned down at every stage so there is just time to get it in place before secondary.

With your YR7 child, again there is time to get an EHCP in place before GCSEs but I imagine it's more pressing due to their daily struggles at secondary.

If both DCs are struggling - and it sounds like they are - apply for an EHCP needs assessment NOW. Don't wait until next school year. You can literally print off the one page letter from the Ipsea site. That's what I did.

I was told by my son's Senco that she wouldn't apply on his behalf as he would never get one. I did it all myself and he did.

I would also say to start keeping a diary for both DC so you can document their difficulties at school. This can be used as evidence when you apply.

If you were to apply for an EHCNA and need to appeal would you be eligible for Legal Aid? As that can fund assessments.

Personally I think the real value of a good independent EP assessment is to gain detailed insight into your child, their needs and how to meet them in and educational setting. Certainly here there is no comparison whatsoever between the observations cobbled together by hard-pressed LA EPs in discussion with school leads who may be in denial about the extent of a child's needs, and the painstaking assessment (including screening and diagnostic tests) provided by a good independent EP. I would never have understood my child's cognitive challenges, or their academic potential, without this, and this level of insight is key to really effective adjustments/provisions. even if the LA may attempt to ignore.

That said, sequencing-wise, it may make sense to have clinical assessments for ASD and ADHD first?

I'm so grateful for all of your replies and info. It's been really hard figuring out how to move things forward and I feel like I've been going around in circles.

So far, both children have:

• Had initial assessments (neurodevelopmental for the Y5 child and CAMHS + Tavistock triage assessment for the Y7 child)

• Been put on the waiting lists for autism assessments (12-18-month waiting time means the earliest they're likely to be seen is Feb/Mar 2024)

• Been pencilled in for private autism/ADHD assessments in Oct 2023, depending on finances (but I'm considering switching to a service recommended by an SLT friend, so the timing might change)

• Been flagged to their schools as needing SEN support. Y5 child's SEN support plan was finally produced in March so I will be pushing to review this around the end of May/early June, but we have been talking to the school since October and the SENCo has been supportive but has a huge caseload. Y7 child's school is notorious for poor SEN support but I have been the annoying parent pushing for support, especially as DC is really struggling emotionally/mentally with the school environment. The school are supposedly putting together a "profile" and "learning plan", which should include some targets and I will push to have this reviewed before the end of the school year. Unfortunately, their interventions all focus on removing DC from the classroom if it gets too noisy (which DC doesn't want to do) rather than on creating a calmer learning environment, so I'm not sure how effective it will be.

• Been put on their schools' waiting lists for the school EP. For the Y5 child, this will be sometime next academic year; for the Y7 child, it will be sometime next spring (maybe)

• Been put on waiting lists for other schools. There are two extremely sought-after schools in our area that I'm sure would be better environments for both children. Unfortunately, there is little movement so I don't know if/when they'd get offered a place. We missed the window for appealing at one of the schools (they say it has to be done within 20 days of being refused a place); we could appeal with the other school but I'm not sure we have any hope of getting in -- we're well outside the catchment. Both schools are also known for turning down a lot of kids with EHCPs because they get a massive number applying, so I'm not sure arguing undiagnosed special needs would be any help.

• Y7 child has been referred for mental health support through a local organisation; I'll be arranging an initial appointment this week.

So putting all of that down helps me see that I haven't been doing nothing. No wonder I'm exhausted. 😂

I think applying for the EHCNA straightaway makes sense.

@Toomanyminifigs Thanks for pointing out the stalling techniques. That's convinced me that we need to start the process asap rather than keep waiting, whether or not the schools agree to apply on our behalf. I imagine we'll end up doing it on our own.

Fortunately, I do think our primary school is sincere about wanting to support DC, but they did really let me down with our Y7 child (I had expressed concern about DC1's social/emotional development) but the school always said they were fine -- They're quiet and academic without any behaviour issues. But I now see that the autism flags were clearly there from the start and maybe the school just didn't want to deal with it on top of "needier" kids, the pandemic, etc.

I have been documenting all correspondence with the schools since September bc I regret not doing that at primary with DC1.

Thanks again for your help.

@FloatingBean I'm not sure if we'd be eligible for Legal Aid. If it's based on financial need, then probably not, but if it's available on a child's behalf, then maybe?

The criteria for legal aid are here. When appealing an EHCP it goes on your financial situation. Although there are other situations where DC can be eligible for legal aid in their own right. If you aren’t eligible for legal aid but need to appeal and need independent assessments but can’t afford them Parents in Need can sometimes help.

If you are applying for an EHCNA and funds are limited I would think carefully about going private for diagnosis or whether money is better saved for independent assessments if you need to appeal the EHCPs. EHCPs are based on needs rather than diagnosis.

Unless the school is wholly independent with an EHCP the LA must name your preferred school unless the LA can prove:
-The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) of the child or young person; or
-The attendance of the child or young person would be incompatible with the provision of efficient education for others; or
-The attendance of the child or young person would be incompatible with the efficient use of resources.
The bar to prove this is high, higher than many LAs admit. If the LA can’t prove this they must name the school even if the school objects. Although the LA may force parents to appeal.

Yes, I think prioritising independent assessments if we eventually need to appeal makes sense.

I'm confused about how schools can turn kids with EHCPs away if they're the named school on the plan, but I've been hearing that this is happening a lot, esp at one of the schools I referred to (both are state schools (academies) in North London). Maybe they're getting applications from kids with EHCPs but where they aren't the named school? One of the schools reportedly has a cut-off of 12 kids on plans and rejects the rest.

If the school is named in an EHCP they must admit. If they refuse they can be directed to, via judicial review if necessary.

If an academy is named in an EHCP most academies have a clause in their funding agreement allowing them to ask the Secretary of State to determine whether the LA should have named them, but this decision can still be appealed and overridden via SENDIST and then enforced.

I suspect what who are hearing about is difficulties getting the LA to name the school in the first case and the school objecting when consulted.

It is hugely inaccurate that a private Ed Psych would not come to a tribunal as a witness. It is very common practise and my advice would be to get the best that you can afford if you think that you will end up in tribunal. My Ed Paych was our key witness