EHCP support thread

[Phineyj]

My DD (10) is being assessed for EHCP. The council refused to assess (despite her already being diagnosed with ADHD, ASD, hypermobility and vision problems following eye surgery).

School have been supportive throughout and they are going above and beyond to keep her engaged in education.

She's about to go into year 6 though.

I took the LA to the tribunal and won.

They must produce the plan by 4th August. I think they probably will (they've stuck to deadlines so far...ish...). But I've got all the IPSEA complaint letter templates primed!

The hardest thing about the whole process is that no-one else in my life understands it or what it's like to spend all your free time essentially begging people to document the deficits your child has.

It is also a hard realisation that no-one cares much about your child's education except you.

I am also a teacher so I feel sad on behalf of the SEN DC I teach as I am told little about their needs (I spent a whole day doing DofE with one recently...I don't even know what her EHCP says...)

Join me if you are also grimly trekking through the EHCP jungle!!

@RMNofTikTok does it really, thank you for this I didn't know. I did put a complaint in but it didn't stand because I did consent to an assessment but I complained because I was not informed. The assesment as I understand and what the school told me is the ed psych called out of the blue, which I believe to some extent as the ed psych did the same to me.

There was no way they could assess daughter remotely effectively as she struggles with transitions in and out of class. On occasion she actually needs 2:1 because she gets overwhelmed and drops to the floor she's at risk of hurting herself not others

If you Google the sen code of practice, it's a huge document but very worth a read.

Have you got the reference for that @RMNofTikTok? EP services really do seem to be in a bit of a state. Remote assessment of a non-verbal child with parents unaware really does not inspire confidence.

It doesn’t. SENCOP available to read here, advice and information to be sought during the EHCNA is 9.45-9.52.

Even if it did, the SENCOP is not legislation, legislation trumps the SENCOP (there is case law stating so) and legislation states on such thing.

SENCOP may not be legislation however if you look at recent case law it has referred to the SENCOP and legislation.

@greyflannel I'll try and find it for you now but it's a massive ask as the document is so large

@RMNofTikTok I've just downloaded it, before I saw the stove of it I was thinking of printing it and highlighting but it's massive lol

The SENCOP does not state it. But, even if it did case law, which sometimes refers to both legislation and the SENCOP, states the SENCOP cannot override legislation and the legislation does not require LAs to undertake a minimum of 4 half days assessment when seeking advice and information.

The section about seeking advice and information during an EHCNA is not huge. 9.45-9.52, less than 3 pages.

@ThomasWasTortured you are correct, I've found the source

www.aep.org.uk/system/files?file=2022-03/Guidance%20for%20EPs%20providing%20advice%20for%20EHCNA%20June%202020.pdf&alId=11433#:~:text=2.1%20The%20aim%20of%20this%20document%20developed%20by,users%20of%20the%20standards%20expected%20of%20the%20profession.

In relation to point (d) (psychological advice and information from an educational psychologist), guidance for educational psychologists involved in EHC needs assessments makes clear that:
• their input must focus on the needs of the child or young person, be independent, and not be driven by financial or other constraints (paragraph 3.19),
• their advice should not be influenced by consideration of specific educational settings (paragraph 3.22),
• provision recommendations should be clear and specific enough so there can be agreement about whether or not they are being followed (paragraph 3.24),
• best practice would be to give robust advice leading to clear, specific and quantifiable provision (paragraph 3.27) and guidance should be provided in terms of ‘no less than’, ‘at least’ or ‘always’ (paragraph 3.28), and
• the expert should be given enough time and resources to provide advice which comply with the points set out in the guidance. “Practice-based evidence suggests that this will require, on average, four half-day sessions, where there has not been previous involvement by the expert providing the advice; this is in addition to participation in other tasks (such as co-production meetings)” (paragraph 4.5).

Taken from IPSEA

So it's Ed psychs governing body that outlined minimum 4 half days, not SENCOP.

Appeals have been successful on this basis however.

It is the guidance for EPs from JPLG. Separate from the SENCOP. It is non-statutory. Not enforceable. It is not a “must do” for the LA. It also says ‘…suggests that this will be required…’ and ‘on average’. Both of which are woolly a bit like many LA EP reports.

On its own, it would not lead to a successful refusal to issue appeal because it does not prove the legal threshold. SENDIST may order further assessment, which may lead to a successful appeal, but that is a different matter to the lack of following the JPLG guidance leading to a successful refusal to issue appeal.

Yes I think it depends on each individual appeal. Mine is a refusal to issue, base primarily around is an EHCP necessary to secure the SEP. My argument is that the needs assessment was such low quality that the EP recommended less provision than DD currently receives, based off a 60 minute observation and a 30 minute assessment with DD. However I find when the EP study is flawed, the rest of the EHCNA is too, for example

1. health "contribution" is CAMHS discharge letter
2. advice from early help wasn't sought
3. the 3 hours a week funding from adult social care to support me in my parenting role due to behaviours that challenge was ignored
4. they refused to consult community paeds as "not known to service".
5. didn't seek advice from her psychotherapist
6. ignored asd/adhd report
7. didn't wait for OT assessment to conclude
8. school advice was from sendco 6 months ago when they denied DD had autism or adhd
9. school said she's on track but was on third centile in mock maths SATS
10. gone from 97% attendance in year 4 and overachieving to 84% attendance in year 6 and just scraping on track.

Ultimately this is a child who is making herself sick before school every day, OT noted she is "highly anxious in the classroom". EHCNA failed to look forward and identified transitional support required in year 7 and beyond.

There's no doubt in my mind that a tribunal wouldn't issue an EHCP given the circumstances.

I can only talk from my personal experiences though 😊

Proving an EP assessment did not follow the non-statutory guidance from JPLG does not prove it is necessary for SEP to be made via an EHCP (the legal threshold - s.37(1) CAFA 2014), so no, on its own proving an EP assessment did not follow the JPLG guidance would not lead to a successful refusal to issue appeal. If it did the FTT would have erred and the LA would have grounds to seek permission appeal.

But it doesn’t sound like your case is based around that, so it is a bit of a non-issue. Your case is based around having evidence to demonstrate DD’s meets the threshold. That is completely different from a legal PoV.

Yeah I mean I heavily challenged the EP report too but there are so many issues within mine 😂 the noddy guide was really helpful for writing my witness statement and I'm just about to schedule an EP, SIOT and SALT assessment

Unless money is no object, think about whether you need all 3 independent assessments for refusal to issue. If you have to appeal content/placement, as many do, by the time you get to a hearing any report now may well be considered out of date. Previously reports were considered up to date for around 2 years, but over the last few years SENDIST have sometimes considered reports much younger out of date. You may then need to pay for updated assessments or an addendum by the time you appeal content/placement.

The Noddy guide is a helpful resource.

These assessments are being funded by legal help thankfully! I'm unluckily disabled, however luckily?!? My inability to work more than 16 hours a week has saved me a lot of money!

Brilliant (not that you are disabled, obviously, but that you are eligible for legal help!). I shouldn’t have assumed, but I thought you meant you were funding them.

It's ok, it's a fair presumption to make 😁 if I was self funding I'd prioritise SIOT, but luckily/unluckily?!? I have options so might as well get all the assessments!

My understanding is as follows:

Statutory codes are funny forms of law that come from the executive rather than the legislature, and which constitute binding guidance.

Statutory guidance does two things: it describes legislation that must be followed, and it sets out in law, how legislation should be applied in pracice.

On questions of a) interpretation of the law, it is statute (eg. the 2014 Act) itself, rather than the code, that courts must base their considerations upon. On questions, of b) how the law should be applied in practice, the code must be followed by law, unless it can be demonstrated to the court there is a very good reason not to (and then not substantially deviated from).

This is why statutory codes are different from non-statutory guidance. The latter is entirely advisory, the former must be followed, except by exception.

Non stautory guidance is usually used to refer to other guidance issued by the executive (government) which does not have standing in law but describes good practice expectations (see DfE's Sept 2022 school attendance guidance as an example).

Lots of other organisations also produce advice and guidance documents, including for professionals involved in assessment. Some of these codify professional expectations, and may be linked to standards that professional bodies like the HCPC require their members to follow. And some provide good practice guidance.

Except that case law has established the SENCOP does not trump the legislation when they don’t align, so even if the SENCOP did mention it, which it doesn’t, it couldn’t be enforced because legislation sets out what information and advice LA’s must seek and that is not part of it.

My point was the non-statutory JPLG guidance cannot be enforced. So while it may be good practice, you wouldn’t get anywhere trying to enforce it and on its own it would not meet the threshold for a successful refusal to issue appeal. Not least because the wording is woolly.

@ThomasWasTortured.

Read my post and you will see that I clearly say that on matters of interpreting what the law means, courts must look to statute (eg. the 2014 Act) rather than the CoP.

I also say LAs must follow the CoP when applying the law, and must show a court they have done so, unless they can demonstrate to a court they have a very good reason not to. Statutory guidance is the third area of the law after statute and regulations. It is not legislation, which has primacy, but it still constitutes part of the law and schools and LAs must follow it.

My posts have described the relationship between statute (legislation) and law emanating from the executive, using the correct terminology. I have also explained that non-statutory guidance is a term for a further category of advice issued by the executive, that does not have legal standing, usually codifying the executive's view of good practice (example given, DfE School Attendance guidance).

It's not the right term to use when referring to other documents produced by organisations who are not part of government, like the JPLG guidance to EPs. Of course you are right that this doesn't have legal standing and cannot be enforced by a court.

I read your post. The JPLG have previously described their guidance as non-statutory. Hence why I did. If you don’t like that, take it up with them, not me.

It could be worth a complaint to the Health Care Professions Council, assuming the EP is registered with them. This sounds like there could well be a case for professional misconduct by the EP.

Moving forward meetings aren't part of the statutory procedure, and you can certainly decline it - especially if waiting for the meeting means the LA will go beyond the 20 week time limit for issuing the EHCP. However, in general if it won't cause undue delay there's a case for going along with it, if only to prevent the LA from characterising you as being non-co-operative. Nevertheless, if you are going to have a meeting it makes much more sense to wait till you have a draft and use the meeting to discuss that.

@Anisette thank you. Yes I guess I'd want a draft before meeting as personally feel that's best. What gets me though is the endless meetings I understand their importance but for parents they are mentally draining. Sometimes you feel you are repeating the same things over and over again and it's really hard when the conversation is normally how much our ds is struggling

There have been developments! SENDIST emailed me today to say our tribunal for refuse to issue has been made earlier (from early Sept, now early June). They said "The Tribunal is minded to vacate the current hearing and relist to an earlier date as this would be fair and just to do so: ChildName is due to start secondary school in September 2024 and if a plan is to be issued, this will be prior to the start of that term."

They also evidently read the summary I wrote, as they quoted it in the order.

It looks like that it could be even earlier than June if the LA will consent to a hearing on the papers. But perhaps they won't, as they've been entirely unhelpful so far.

The LA have also panicked me by claiming that "The system is not showing that you have made a choice through general admissions for secondary transition so the LA will need to know if you are making your own arrangements for secondary school." How can they not see this on the system? I made an on-time CAF application (I have the confirmation), sent the ID required (have a confirmation) and as two of the schools on our list require a fair banding test, Child sat that before Christmas (obviously they only invite people who've applied...)