EHCP support thread no. 2

[Phineyj]

This is a support thread for anyone at any stage of the EHCP process. I've got an 11 year old girl in year 6 of a mainstream private primary school. I've been seeking an EHCP since she was in year 5, to support her transition to secondary school. She is diagnosed with ASD and ADHD and is working about two years behind age related expectations. Our local authority refused to assess and refused to issue. We are currently in the 11 month wait for a second tribunal which I am hoping (but not sure) will take place before she actually goes to secondary, although I doubt the actual EHCP will be finalised by then. In the meantime I've been enjoying (not) learning all these acronyms and trying to support other people in this journey. In my spare time, I'm a secondary school teacher.

If you, too, are drowning in acronyms and paperwork while finding your local authority (LA) as useful as a chocolate teapot, join your fellow travellers here!

@SpaceInvader321 I have 2 DSs with EHCPs (and another we are appealing a RTI, but he isn’t relevant to this point). One of their initial drafts had 3 different names, 2 different ages, in places he became a she and a preschooler could have numbered it better. I have seen lots of initial drafts over the years and DS’s was by no means the worst.

Sometimes LAs like to hide behind ‘panels’ when it isn’t always a panel making the decision. Years ago a MN’er caught her LA out with a FOI which showed there wasn’t actually a panel.

@SearchingForSolitude thanks a lot, that’s brilliant. I will pass all this on to our SLT and will have a read myself.

In terms of the LA EP, I was told a few weeks that if I don’t mind a remote assessment, there’s less of a wait compared to an in-person assessment.

Not sure if I should go for a remote assessment or stick to in-person and try to enforce the statutory deadlines?

Do you think a remote assessment would work for your child? I couldn't imagine it working here.

@Ponche personally, I don’t think remote assessments are comprehensive assessments. Everything less equal I would always choose a F2F assessment. But, some LAs are using remote assessments without giving parents a choice. If you refuse a remote assessment then try to enforce the deadlines the LA may use a remote assessment anyway. Although if you think you are going to have to appeal and will need an independent assessment anyway, you don’t want to delay the process further.

It's been almost 3 months since I sent in the SEND35a form to appeal the Refusal to Assess. I've been cleared for Legal Aid and the solicitors have since organised SALT assessment with very positive results and they're is a Social work assessment organised for next week. There should be OT ams Ed Psych assessments in the works too.
I've just had an email saying the LA has agreed to assess! I'm not sure what this means in real terms - can I continue to get these assessments done but now they will contribute to the NA? I will be getting in touch with the solicitors to find out but fingers crossed this is very good news (for now!).

@Phineyj I’m thinking no, but to be honest I’m not really sure what the EP assessment involves so need to read up on it.

The lady from the LA thinks a remote assessment would work as she said I have a thorough understanding of DD’s strengths and weaknesses and there’s lots of supporting evidence from nursery etc.

She observed DD in nursery and said she wasn’t sure what the benefits of an in-person EP assessment would be over remote. As in, what would they see that we can’t tell them.

But from what I’ve been reading lots of people say the LA EP reports are usually weak anyway so I don’t want to weaken the report further by opting for a remote assessment.

Independent EP report is not an option for me at the moment, as I’ve prioritised independent OT and SALT reports for now. But something I can consider in the future and definitely if/when I need to appeal etc.

Sounds like your child's much younger than mine (mine's 11) so if it would be mainly you they're speaking to and you're happy with remote, then could be worth considering if it will speed things up. This seems useful as a starting point:

https://www.psychologydirect.co.uk/resources/education/what-does-an-educational-psychology-report-cover/what-should-an-educational-psychology-report-cover/#:~:text=Once%20an%20Educational%20Psychologist%20has,school%20types%20to%20meet%20need.

@SearchingForSolitude thank you, I agree that remote assessments are
rent as comprehensive. In the same way I wouldn’t want a remote independent SLT or OT assessment.

I will speak to my LA contact to get an idea of what the wait is for a remote assessment compared to F2F.

Sorry, one more question. If my DD moves to a school nursery in September 2024, how does this affect the EHCP process if it’s still ongoing. And when do I need to let the LA know.

Also, if she attends mainstream reception, I would want it to be at this school. But we’re not in catchment so her only chance of getting a place in reception for September 2025 is via an EHCP.

I’m worried the move will delay the process further so am keen to enforce the statutory deadlines where possible.

DD was meant to stay at her current nursery until August 2025 but I’m only planning to move her as she will get more support in the new nursery - it’s in our LA and the inclusion funding goes further as it’s school hours and term-time only and will enable her to have a 1:1. Even without an EHCP.

Her current nursery is in a different LA and the inclusion funding works differently (plus the days are longer and she attends all year round) and can only cover a 1:4 ratio.

So much to think about and difficult to work out what’s the right thing to do.

Thank you very much, I will add that to my
reading list.

Yes she’s only 3.5 and non-verbal. Largely does her own thing at nursery (reads books and plays with her figures), not able to participate in small/large group activities, doesn’t play/interact with other children but enjoys 1:1 time with staff when possible.

Maybe that’s why the LA thinks a remote assessment would be sufficient.

@Ponche don’t trust the LA. They are bound to tell you a remote assessment will be fine. An in person assessment would, IMO, be better. Here are the guidelines for EPs. But remember they are guidelines, not law.

You should know if the LA is going to issue or not by September. Moving placement won’t stop the EHCP process. Sometimes LAs like to use moving placements as an excuse not to issue. Claiming DC need time to settle at the new setting. If they didn’t use that unlawful excuse, they would find another. I would wait to tell them until nearer the time.

@QuickFetchTheCoffee if the LA has conceded, if they are going to issue, they must finalise within 14 weeks. If they aren’t going to issue, they must inform you within 10 weeks. If the LA has already submitted their response, once the consent order is issued the independent assessments won’t continue unless you are lucky.

@SearchingForSolitude thanks, I’ll try to push for an in-person EP assessment and will keep quiet about the move until nearer the time.

Thanks @SearchingForSolitude
I'll hope I'm lucky then I guess! You never know.

The other angle to bear in mind is the obligation on the LA to deliver services in line with the Equality Act 2010. A disabled child may be disadvantaged by a remote assessment as it may make it significantly harder for them to engage and make themselves understood and therefore result in a poorer assessment outcome. The LA EP service will has an anticipatory duty to think about the needs of disabled service users, but if they are not doing that, and taking a one size fits all approach based on remote assessment. they should be asked to make reasonable adjustments. Children with communications or social understanding difficulties, or demand avoidance in an autistic profile may fair better interacting with a Psych face to face.

@Cafetabac thank you, that’s a really useful perspective to bear in mind and to quote to the LA if necessary.

My DD will definitely be unable to engage remotely. I also don’t want to regret opting for a remote assessment if the report turns out to be inadequate (even thought it may be inadequate anyway even with an in-person assessment).

Sorry I have another question. Should I still request the LA to seek advice from an OT even if I have an independent OT assessment/report scheduled for next month? I don’t feel it’s an unreasonable request but not sure if I should bother if I’ve already arranged my own assessment anyway.

The LA letter says their deadline for their assessments/reports to be completed is 17th May. Although doubt they will stick to this timescale.

My independent OT report probably won’t be ready until earliest 20th May and latest end of May.

I wouldn’t want a weak LA OT report to override the more detailed independent OT report. But not sure if it works like that. Or should I just not ask for one and wait for my independent assessment.

We did independent OT and the council did OT too (I booked the independent one because I didn't see how they would get theirs done by the deadline - and they didn't).

The independent one was sensory which was v useful in understanding our daughter (for me certainly). I understand NHS OT don't do sensory (although the council had actually contracted out to a charity so maybe it could have been).

But in the tribunal letter I've just received (ordering the LA to issue) they preferred the LA OT because it was done at school, whereas the independent one was in a clinic.

Overall, both reports were useful.

I believe more information is generally useful but it does all cost!!

@Ponche there’s pros and cons.

An LA OT report won’t be anywhere near as comprehensive as an independent one. Even if your ICB doesn’t commission sensory OT, a sensory OT assessment can still be requested via the EHCNA, but it won’t be as detailed, specified and quantified as a good independent one.

Certain assessments can’t be repeated so close together, but a good OT can work round that.

The problem with not asking the LA to seek information and advice from an OT without having already had assessment is what if the independent assessment doesn’t go ahead for whatever reason? Whereas, if you already had the report if you, the LA and OT agree the existing evidence is sufficient the LA must not seek new assessments. (Although LAs often disagree so they can get their own less detailed, specified and quantified report.)

@Phineyj @SearchingForSolitude thank you both, you’ve given me food for thought.

As I won’t get the independent OT report for at least another 6/7 weeks, I think it makes sense to ask the LA to seek advice/input from OT.

When asking them to do this, should I mention I have an independent assessment coming up next month or should I not say anything until I have the report in hand?

If an EHCP is issued and the provision is inadequate as it’s based on less detailed LA SALT/OT reports as the LA favoured these over the independent reports- is that when parents can appeal the EHCP contents? And if the independent reports are fairly recent, would you just use those as evidence for the appeal?

Super great news for @Phineyj :)

Quick question- I'm drafting the appeal letter for refusal to assess. School are being quite helpful (and bless the SENCO working all over his easter holidays)- but the main basis we were refused on is needing more cycles of assess, plan, do review (as she has 2x diagnoses).

a) I know this is an unlawful basis for refusal- but has anyone got a written reference for that I can throw at the LA? I can't find in the SEN code of practice.

b) We do also have 2 cycles of APDR from DD's school overseas that she was at until June last year, for about 2.5 years. Her teacher there was very SEN experienced and gave me tons of documentation. We were overseas due to Crown service and I'd also like to argue that it's unfair to discriminate against her on that basis and they should also be considering the documentation from that period. Should I do that it is it a bit of a red herring?

Due to the overseas period we have barely any academic data, just the reading and maths scaled scores from year 4 assessments (exceeding in reading and behind in maths) but this doesn't show that, for example, she can't spell high frequency words for toffee or hold a pencil. I'm trying to get spelling test scores now too.

I feel really strongly that we shouldn't have to get private tests (WISC 5 etc) just to get the assessment as that defeats the point. I want the LA to pony up.

@Macramepotholder the only lawful test for an EHCNA is a) has or may have SEN, and b) may need SEN provision to be made via an EHCP. That is stated in s38(6) CAFA 2014.

You can mention being overseas as a Crown Servant, but you can use the evidence from overseas even if you weren’t.

@Ponche if you want an OT assessment from the LA, I wouldn’t inform the LA until afterwards. The LA may use that knowledge to alter their assessment.

If the LA decides to issue, you will get the right of appeal so you can appeal if the EHPC is inadequate. (You will get the right of appeal if they refuse to issue too, but not for the content of the EHCP.) Previously, reports were considered up to date for around 2 years. Over the last few years SENDIST have sometimes judged reports much younger out of date, so depending on DD’s circumstances and if the LA refuse to issue, you may need an addendum by the time you get to an appeal for contents if the report writers are amendable to that.

@SearchingForSolitude many thanks for all your help, much appreciated. I've asked the LA to seek advice from an OT and have also asked what the waiting time is for an EP to be allocated as their letter already mentions that statutory timescales may not be met due to delays because of shortage of EPs nationally.

There's nothing like getting off on the right foot in signally your commitment to abide by the law is there!

I have a radical suggestion for LAs; if they stopped using their EPs as a means of rationing overall resource allocation, and accepted high quality independent EP reports when they received them, they would free up LA EP capacity. Instead they waste resource on duplicate assessments of the same children, which is a clinically dubious practice on a couple of levels.

Haha, I know!

@Ponche I would be letting the LA know the statutory deadlines are just that and if they breach the timescales you will be forced to pursue legal action. Yes, there’s a shortage of EPs, but they should be doing more than shrugging their shoulders and saying nothing more they can do. If the LA see they can get away with acting unlawfully, they will continue in the same vein.

@SearchingForSolitude I asked for a timescale and they couldn’t give me one then said capacity has increased recently. I wasn’t sure if it was too early in the process to mention legal action (thought maybe I should wait till it’s been nearly 6 weeks) but I will mention it in my next email.

They said they won’t consult OT as they only consult services that are currently involved (with the exception of EP) and I replied saying that it’s unlawful to refuse to seek advice simply because she’s not known to a service and I quoted SEN Reg 6 1 (h).

They said I should self-refer or nursery should refer to sensory OT but that’s a long process as certain hoops to jump through first then a 3 month wait to implement things then you can refer. I said we will pursue that referral separately when we meet criteria but that’s separate to the EHCNA process. Also by self-referring, there is no way the OT service will see/assess her within the statutory 6-week timescale. No reply yet.