Do I need a solicitor to appeal an EHCP assessment rejection?

[WeakWeakWeak]

Son is autistic (diagonised NHS after being on list for 2 years, he is now 5.5 years old).

School suggested he repeat reception, but then retracted that suggestion (and his class size would have been much bigger, losing his peers). We decided better for him to progress to Year One. School have been pretty slow supporting me with EHCP application - had an EP report/referral done that recommended we apply - school happy to support but told me I needed to complete the form myself (this felt a bit odd as it was asking for costs of interventions etc - which I don't know).

Had application for asssessment turned down earlier this month due to lack of detail in reports (school, EP etc) and also that he has made some progress during Reception (but only because they have been able to give 121 at points with his reading).

The EP report said he has writing/reading skills for 2 - 3 year old depending on which skill.

he has meltdowns at home. not at school.

the deadline for appeal is end of Sep. they sent me info about mediator too. do i go ahead with this?

I'm so confused as to what the best option is to increase chances of decision being overturned.

I haven't been able to contact the school as they haven't got back to emails (despite SENCO saying she would check once a week during summer to hear from me).

A mum I know sent over her EHCP assessment appeal letter - to see if I could copy - but finding it overwhelming. I work full time, have other kid, my husband is frigging useless, and i have other repsonsiblities with family.

I have contacted SEN solicitors and had quotes back of £700 - £1000 to handle the appeal. Is this worht it? Surely if the evidence/engagement from school is poor - not much a solicitor can do?

Any advice pls. tearing my hair out. when he received his ASD diagonisis - the consultant was clear if he was stay in mainstream he would need some level of 121 support.

You don’t need a solicitor. The legal test for an EHCNA is relatively low. You only need to show DS has or may have SEN, and may need special educational provision to be made via an EHCP. The first part of the test is the easier part. The second part of the test is the harder part, but it still isn’t a high bar. You don’t need the school’s support. You need a mediation certificate, but you don’t have to actually partake in mediation.

Reading IPSEA and SOSSEN’s website on refusal to assess appeals will help you.

Do you have the need for 1:1 in writing from the consultant? Do you have the school suggesting DS repeats reception in writing? Do you have in writing DS has been having periods of 1:1? Follow up all verbal conversations with emails. When was the EP report written?

Consider making a subject access request to gather further evidence.

In case it is relevant to you in the future or for others reading, you didn’t need to fill in the LA’s form to request an EHCNA. IPSEA’s model letter is sufficient.

That last bit about the forms - I only saw this on IPSEA website post-application - and that's so frustrating. Essex (that is where I am) website absolutely said I have to fill in their form (lots of tables about costs of interventions etc) and realise now I didn't have to. Also, IPSEA said I could ask for deadline extension due to summer hols but essex have refused.

DS only got autism diagonsis a couple of weeks ago so awaitng consultant letter but he assures me will be this week.

School absolutely will NOT put repeating reception into writing. in fact they were super vague about it and kept saying 'we are not suggesitng he does as we legally can't, we are just making you aware of the option' - all felt a bit wink wink.

Essex are v strong on NOT repeating the year and have a recommendation on their website that it should not happen. So doubt the school would say they ever recommended it - but they did - albeit v carefully with their language

EP report is from June.

So the SEN bit - I can prove -he has autism. The EP report states he has 'significant behaviour, social and communications challenges'.

The second bit is harder as you say - as they rejected it on basis that they weren't convinced school can't cover it in their own budgets and that DS has made some progress and met his targets (v reduced for him - e.g. beign able to write the letter A - whereas other kids are writing full sentences).

is the mediation certificate just to say i don't want mediation?

can i just appeal via a letter? the draft i saw had lots of reference to gov law - childnre's act etc - that is why i thought perhaps solicitor is needed as i feel a bit over my head.

LAs like to tell parents a lot of things that are not true, especially Essex. Check everything they tell you.

You don’t need the school to put anything in writing. Going forward, follow up all verbal conversations with emails to create a paper trail. Ask them to correct anything they have a different recollection of. Then you have your evidence.

Being educated outside of DC’s chronological year group can be included in an EHCP if you get one. Although you may have to appeal.

To appeal, you need to submit a SEND35a form to SENDIST. You don’t need to go overboard with case law/legislation. IPSEA explains the legal threshold set out in section 36 of the Children and Families Act 2014 that I posted about in my pp. You will need a mediation certificate. If you don’t want to go ahead with mediation itself the certificate will have the section saying you don’t wish to pursue mediation completed. If you go ahead either mediation, afterwards, you will get the mediation certificate with the section saying you wanted mediation completed.

My friend said they don't recommend mediation - particularly if the school aren't particularly 'on it'. Do you agree? I am confused by mediation.

The SEND35a form itself looks simple (far more simple than the original essex ones) I have SALT reports, EP report, OT referral, ASD diagonsis. DS was already pushed out of pre-school for being too high needs. Repeating reception suggesiton. I feel confident I have evidence of need. Will check out the IPSEA section. Maybe I don't need anything extra from the school. They have told me DS has only made progress because of the set up in reception and that progress has been v v hard work.

Just feel worried about it being turned down again and then I'm stuck. But looking at the form- feels like a solicitor would be overboard as only actually 2 or 3 open ended questions and I have a lot of evidence from the referrals to include.

Essex are pushing for me to have a 'way forward meeting' as soon as possible - do you tihnk I shoudl go ahead? Honestly - if one more person says 'we need to get him a weighted cushion' i'm going to scream! I was fobbed off with that stuff when DS was pushed out of prs-school by esssex and now here I am - about to go into Year one still with no actual support.

You don’t need the school’s support.

Way forward meetings are a way of fobbing you off. Parents get their hopes up that they will be listened to/there will be more support and if an EHCP is needed one will be sorted at a later date.

You have to get a mediation certificate but you don’t have to actively partake. LAs often use mediation as a delaying tactic. If they are going to concede they are likely to do so whether you actively partake or not.

Alongside appealing the refusal to assess, request a meeting with the SENCO. Remind them they must legally make their best endeavours to meet DS’s SEN and they must make reasonable adjustments.

Request a mediation certificate - you do not need to do mediation, just contact the mediator and say you are not interested in mediation. Once you have the certificate (usually only takes a few days) complete the send35a - keep it to the point and use bullet points if it helps you. Attach all the info you have - including any communication from preschool including school reports etc.

You can also agree to a "way forward" meeting with LA alongside this if you have time. Be clear that you have already appealed the decision. Once the appeal is on, you have nothing to lose by meeting with the LA except time.

In our case, the LA changed their mind and agreed to assess, once I had made it clear that I knew DD met the threshold for assessment and I wasn't going to back down!

thank you for the support and advice.

if i complete the SEND35a form (with no input from school and no solicitor) and then it gets turned down - is that it? or can i then pay for legal support to appeal again? basically - is this my one and only chance of getting it overturned?

@handmademitlove how did you make it clear you weren't going to back down? Did you quote the law at them in your appeal or just provide evidence of the challenges?

(hope your DD is getting the support she needs)

If your appeal is not successful, you can reapply in the future.

When I spoke to the LA I made it clear that although I understood they had their own internal thresholds for agreeing assessments, the legal threshold was clearly met and evidenced through the paperwork. I that I was prepared to wait for the appeal - and pointed out that 95% + of appeals are upheld.

One thing I did make note of is that I had assumed that they would consult their own records when considering the request. In fact they only considered what was in front of them. So I had included the most recent notes from meetings with LA autism team etc. they therefore assumed it was the only meeting that had been held and wanted to allow time for their recommendations to be implemented. I had to point out that she had been under the team for a few years and no progress had been made.

I would recommend adding in all papers going back to when you first started raising issues with preschool onwards - this makes it clear it is not a recent issue and that multiple interventions have had little effect.

Submitting the SEND35a form is to register the appeal. It isn’t the whole appeal. You can seek legal advice later in the process if you want. It really isn't essential, though, especially for a refusal to assess.

Once the appeal has concluded, if you are unsuccessful, you can request another EHCNA at a later date if you want.

You can’t appeal SENDIST’s decision unless they have erred in law.

Some LAs sometimes back down when they see parents submit an appeal. When LAs refuse to assess, they hope parents will quietly go away.

We just had our LA concede our Refusal to Assess appeal before it got to tribunal. DH and my letter looked lawyerly because one of us has legal training (we numbered paragraphs and quoted some case law we got from IPSEA) but we put it together from advice I found here and on IPSEA, and a bit of a chat with SENDIASS (in our case they were helpful, I hear sometimes less so).

Like you, DS had an ASD diagnosis so they rejected on the basis that his needs could be met through ordinary provision. I think the main things we showed in the appeal letter were:

• LA weren't forward-looking in their consideration of whether an EHCNA may be needed - they hadn't considered that our DS's needs might not be met in the near future - which goes against the SEND Code of Practice. It sounds like the school are saying your DS will struggle more in a year one classroom - can they put that in writing?
• We got a second, more strongly worded letter of support from DS's setting that made it clear he was only coping because they were putting in place more than would be expected, and that he wasn't making expected progress even with support. I attached every ISP he's had which showed his goals didn't change - so limited progress. Again, if you can get the school to say progress has been hard won and only achieved via extensive extra support, this is good evidence.
• We had reports that recommended an EHCP, and recommended provision outside the LAs ordinarily available provision (what schools are supposed to provide without an EHCP) - so if you can get your consultant to put the recommendation for 1:1 in their letter, and even better a recommendation that an EHCNA should be carried out that will be helpful. I know some are reluctant to do this.

As @EndlessLight says above, I think a big part of them not conceding was that we looked like people who weren't going to go away. I probably could have spent less time on the appeal than I did.

Thank you. This is helpful @BusMumsHoliday I have written to the school asking them for exactly that - a letter of support stating progress is only possible because they have managed to provide 121 support in reception.

But I'm (possibly rather slow) in my understanding of the process. The example shared with me by a friend was exactly as you say @BusMumsHoliday - a strongly worded letter that references the law throughout but @EndlessLight you say that sending in the SEND35 form is enough? Or is that just 1st stage? So I send in the form (which seems simple enough) alongside additional evidence or indeed same evidence /docs as before (to ensure nothing is overlooked as suggested by @handmademitlove) and then there is a 2nd stage where I provide more legal info/get a solicitor? I'm confused as to whether they can turn down the appeal just on the basis of the form? I really appreciate your help. I'm having marriage issues, and work stress and of course have an autistic 5 year old who doesn't sleep - so really finding it hard to sit down and work this stuff out! Ilall your advice is so helpful

So when we filled out the SEND35a form we wrote in the boxes for question 1 and 2 "please see attached grounds for appeal". We sent it all together to SENDIST, with the evidence that we discussed in the letter.

If you do a letter/grounds, you can start by saying that you think the decision the LA has come to is wrong against the two part test. You and the LA both agree that your DS meets the first part. So it's only the second part that's in question. Then you can list the reasons the LA gave why they felt he didn't need an assessment, and for each show why these are wrong, and what your evidence is, and then list any further evidence you have why he may need an EHCP.

SENDIST know a lot of parents are doing this themselves. They don't expect perfect legal formatting or expert citations of the law. Clearly presenting your evidence that your DS meets the two part test is enough. IPSEA have a good info pack on putting together refusal to assess appeals that I found really helpful.

To register the appeal, you don’t have to write a letter. You can add that to everything else you send, but it isn’t essential. You submit the completed SEND35a form, mediation certificate, any evidence you want to send and the LA’s signed and dated decision letter.

You can send further evidence later if you want/have any. You can also write a position statement if you want, but you don’t have to.

SENDIST won’t refuse your appeal just based on the SEND35a form. That isn’t how it works. Most refusal to assess appeals are heard on the papers, so all the paperwork you and the LA send will be considered and a decision made.

You don’t need a solicitor or to get bogged down in case law/legislation. The only bit to focus on is the legal test for an EHCNA which I posted in my pp - this is in section 36(8) of the Children and Families Act 2014.

It would help you to read IPSEA and SOSSEN’s websites to understand the process better.