Refusal to assess - Could you help me understand what evidence I should give to mediator / tribunal

[3mmaH]

Hello,

Firstly apologies for the long post, I am trying not to drip feed!

Our LA have recently refused our EHCAR application as they feel there is sufficient evidence that DS needs can be supported in the “core offering”

I am not sure what is classed as “Core offering” and what is classed as “special provision” so I am not sure what to give as evidence.

If anyone can offer advice on this that would be really appreciated.

The bits not to drip feed:

-DS is 10 and going into Y6

-we are worried about translation to secondary school without EHCP, I understand that this transition should be considered

-school are pushing for an EHCP because DS is:

1. dysregulating more
2. needing more movement breaks which require 1:1
3. is a strong 10 year old and with an instance for meltdown to lead to aggressiveness towards staff (personally I feel this has only happened when TA s have not taken the time to communicate with DS in a way he can understand - possibly due to a lack of training)
4. Is falling further behind despite as much 1:1 and 3:1interventions as possible

-DS has been diagnosed with Autism and Demand Avoidance since the EHCAR application. The NHS lady said she couldn’t put much in writing as not allowed to over step the mark, but she did say he would
need extra support and adaptions which we should push for. The wording in the report is “that adaptations to support DS to thrive, not just to look more like his neurotypical peers.”

-I tried to be as thorough as possible
in the EHCAR, spent hours going over the banding and using specific wording in the parent section (hardest essay I’ve done in a long time 😂)

-school were thorough in detailing the interventions they have and are doing and the results, they also put in costings
which were required by our LA’s application form, I understand it’s illegal for LA to base decision on cost, so this is sending alarm bells for me that I need to be prepared and look at case law.

-The only thing I know so far that is unlikely to be classed as “Core offering” is that in order for DS to go on the upcoming residential trip he is needing to be accompanied by a parent during the day for H&S reasons, and will stay in a nearby hotel with a parent as he will need a separate space to decompress and he bedwets and needs help to run water at an exact temperature to wash etc

-can you use H&S responsibilities to staff and other pupils as a reason to assess?

-Ive applied for mediation on advice from school, reading on here though we might be better to go straight to tribunal?

Thank you if you’ve managed to get this far!

The only thing you have to do is show DS a) has or may have SEN, and b) may need special educational provision to be made via an EHCP. Anything else is unlawful, including needing to have spent £6k (or any other amount). The provision DS requires costs more than that, anyway.

If you haven’t already, read IPSEA and SOSSEN’s websites.

The definition of special educational provision is educational or training provision that is additional to, or different from, that made generally for others of the same age in state mainstream schools in England. Some DC will receive special educational provision but that provision can be provided at a school level. DS needs more than this.

The provision DS needs is beyond what is typically available within the core offering or ordinarily available provision. As well as what you list, DS needs OT provision and SALT. Maybe also some form of MH input. H&S concerns can also be considered. You need evidence. Do you have evidence from the school of the support DS requires? Do you have written evidence of the incidents? Have you made SARs to the school, LA and NHS? The threshold for refusal to assess is relatively low. It sounds like you could get enough to meet the threshold without independent assessments, but depending on what other evidence you have, you may want to consider them.

The NHS HCP could have put more information in writing, but they are often reluctant and pressured not to.

The school should not be requiring you to attend the residential. They should also be able to provide separate accommodation for DS on the residential site.

Thank you for your help.

The wording in the refusal accepts that DS meets criteria a) has or may have SEN but they have said we have given sufficient evidence to show DS does not b) so don’t need to assess.

It seems really hard to show he may need something he hasn’t had. The school haven’t discussed with me what they think is needed, just what they have done so far and what they are continuing to do. I guess that would be part of the point of an assessment?

Can I ask what OT and SALT are?

School is a really stressful place for DS, he’s dealt with a lot of bullying and has outward signs of stress during term time which subside during school holidays. So probably MH support - assuming that is mental health!

It had crossed my mind to put in SAR, I will do that now - thank you.

“The threshold for refusal to assess is relatively low.” - does this mean the threshold for me to prove he needs assessing is low or that it’s easy for the LA to refuse if I don’t get the right evidence?

Thanks again.

The threshold you need to show DS meets is relatively low. The second part of the test is the part LAs usually say DC don’t meet, but DS definitely does. Remember you don’t have to prove an EHCP is required. Only that DS may need special educational provision to be made via an EHCP. You can prove the second part of the test by showing things like the school can’t meet DS’s needs without significant 1:1 which the school cannot provide without an EHCP or by showing despite a high level of intervention already DS is still not making expected progress. Or via showing an assessment is needed in order to fully understand DS’s needs and the support he requires.

OT is occupational therapy. SALT is speech and language therapy.

Going forward, follow up all verbal conversations with the school with emails to create a paper trail. For example, do you have in writing about the dysregulation and aggressiveness? And the fact the school is saying DS can only attend the residential if you do and can’t stay on site overnight?

Sorry for the delayed response @EndlessLight thank you so much for that, it’s really helpful.

I’ll check what I have in writing and follow up anything I don’t.

we’ve had 4 or 5 of the assess, plan do and review so sounds like I do have evidence of him not making expected progress.

I have the dystegulation in writing

In terms of the residential trip, we proposed that as the easiest solution to their risk assessments. But we do have to go through which of the day activities he can undertake without supervision and which a parent needs to present to ensure safety so can use their risk assessments as evidence too, ironically it was the LA who gave permission based on risk for the parent to accompany, and school did a DBS check.

thanks again.

IPSEA have a useful handout on their website that covers what evidence is useful for a refuse to assess tribunal. Use that to structure your response.

Thank you @Phineyj do you happen to have a link for it. I’m struggling to find things but I think it’s possibly overload at the shock of just how much fight will have to go into this!

www.ipsea.org.uk/refusal-to-assess-appeals

Click on the orange bar for the "pack".