EHCP and change of school advice

[Newskool]

Hi everyone. I'm hoping to get some advice on whether or not to appeal an EHCP refusal to assess, or forget about it and seek some other means of supporting DS.

DS has just finished a year in secondary. He started off very well but swiftly went downhill, and by the end of the academic year was diagnosed with ASD. The environment of that particular school induced high levels of anxiety in him, leading to near total school refusal.

I applied for an EHCP but the school didn’t write anything in their section so the LA rejected it. The rejection arrived in the summer break. I removed DS and placed him in an independent school where so far he seems happy, but I’d like to appeal the refusal to assess for these reasons:

1. The new school is far away and involves changing trains. DS has some difficulty managing this, which may be teething problems or may be related to his ASD. He isn’t organised and relies on me to get everything ready for him each day. He calls me to ask directions several times, even though he has a train app and can read the platform displays. Sometimes he inexplicably gets off the train at some random place and calls to ask me what to do. When I ask him why he got off there, he can’t explain. Sometimes he does the opposite of what I have said, also without clear reason.

1. He suffers frequent headaches and stomachaches which HCPs have told us are likely anxiety related. So far he has missed a week in total of the new school, and we’re not even at half term yet. DS assures me he does want to go there and that he doesn’t feel the same way towards it as he felt towards his previous school.

The Senco at the previous school said the LA won’t want to assess until they see how he settles at his new school. But my point is that if I hadn’t removed him from his old school, they would have had to assess at some point during this term and it would likely have succeeded and then we could have named the new school. The fact that he doesn’t experience the same levels of distress in the new school proves that the move was needed and that the new school meets his needs. BUT as a child with an ASD diagnosis, I’d be wrong to think all his problems are behind him. I don’t want to wait until he potentially reaches crisis point before any intervention happens.

So my question is, is it worth pursuing an EHCP, and if so what evidence do I need? Another way of looking at it is what do I want to achieve for DS? The answer to that would be supported transport, as I feel this would alleviate some of the stress each day and ensure he gets there on time and calm. I’m not asking the LA to pay the school fees – though this would be within my rights to request too – as we receive a partial bursary.

Any advice will be much appreciated.

Yes, it is worth pursuing the appeal. The threshold for an EHCNA is relatively low. You need to show DS a) has or may have SEN, and b) may need special educational provision to be made via an EHCP. The second part of the test is the harder part. Examples of evidence you can use include information from the old school, new school, medical letters/notes. The LA may not want to assess until they see how DS settles. This is a common myth they like to perpetuate. But it is not the legal test.

But my point is that if I hadn’t removed him from his old school, they would have had to assess at some point during this term and it would likely have succeeded and then we could have named the new school.

The LA would not have to assess this term whatever school DS is in if they have refused to assess. Even if they conceded the refusal to assess appeal or you successfully appeal, there’s no guarantee they would agree to issue and it wouldn’t be finalised before schools break up this term. Even if the LA issues or you win a refusal to issue appeal, there’s no guarantee they would name the independent school.

In order for the school to be named in section I, and therefore eligible for transport, you will need to show the LA’s proposed school(s) can’t meet needs &/or it isn’t unreasonable public expenditure. If you can’t do this, some LAs will sometimes come to an agreement whereby parents pay the fees and the LA pay the SEN support. However, they don’t have to and many (especially in the current climate) will say you are making suitable alternative arrangements and thereby relieve them of their duty to fund anything.

Thank you @EndlessLight. Re. your first point, I included a bunch of letters from doctors and HCPs, the Senco, his diagnostic report, but it all got ignored and the reason given was there is no evidence of what support has been tried in school. I've asked the old school to send me what they have, but no response so far. So what else can I put in an appeal?

The point I was making about the LA having to agree to assess this term was that if I hadn't found a new school for DS, he would have had no access to education as he wouldn't have been able to go in and his unmet needs were so abundantly obvious that surely it would have been taken seriously?

Now if I successfully appeal and they agree to assess, what happens then?

In order for the school to be named in section I, and therefore eligible for transport, you will need to show the LA’s proposed school(s) can’t meet needs &/or it isn’t unreasonable public expenditure.
Would the LA take into account the fact that he is settled and that another move would have a seriously negative effect on him? I believe I can show that a mainstream state school won't meet his needs, and he doesn't need a SEN school. I feel so sad that DS and others like him fall between the cracks 😥

You can make a subject access request to the old and new school to gather evidence.

If the evidence you originally sent demonstrates DS meets the legal test, you may not need any more evidence.

Unfortunately, not moving schools would not have guaranteed the LA would have agreed to assess. If DS was unable to attend school, section 19 provision could have been provided, but this wouldn’t guarantee the LA wouldn’t force you to appeal the refusal to assess.

If you successfully appeal, the LA has to assess. Just like they would if DS was in a state school.

DS’s views and your views, transitions etc. can be part of the evidence to support your request for a wholly independent placement. However, the LA may force an appeal. Focus on the refusal to assess. You are getting ahead of yourself.

So should I just appeal stating that DS a) has or may have SEN, and b) may need special educational provision to be made via an EHCP? Accompanied by a lot of legal verbiage?😄

Yes, appeal the refusal to assess. Yes, that is the legal test you explain DS meets and support the claim by evidence. Send any evidence you have now. You can submit further later on.

It is worth looking at IPSEA and SOSSEN’s websites.

I wasn't aware of SOSSEN. Thanks!

I've lodged an appeal and been told I have to provide a mediation certificate. The mediation service have scheduled a phone call. I would imagine during that call they will encourage mediation before tribunal. But from what I've heard, mediation just delays things and it's better to go straight to tribunal, as the LA won't challenge it. Any thoughts?

I've taken two cases to mediation. The first, the Local authority agreed at mediation to assessment without any further information being needed- that was accepted at panel and an EHCP agreed. In the second case, the LA asked for some additional information which I was able to provide quickly, that too led to an agreed EHCP. So yes, mediation is a possibility.

Yes, you need a mediation certificate. Although you don’t have to actively partake in mediation if you don’t want to, but you do need to consider it and get a mediation certificate.

Hi I just want a bit advise if the draft ehcp is good and who ican contact to review the draft ehcp.

If it is something you are interested in, SOSSEN have a reasonably priced draft checking service.

Your photos are too blurry to read properly. From what I can make out some of the wording is vague and woolly. For example, ‘school staff’ needs to be more specific, the training/qualifications/experience of the TA needs including, how will the SALT and OT hours be delivered (e.g. will they be 1:1? will all the hours be in one half term or spread more evenly?), ‘up to’ needs removing (DC could have 1 minute and that would satisfy up to), what is a ‘high degree of…’, when exactly will the group go from 1:1 to including 1-2 children and what does ‘increasing as X becomes more successful’ actually mean?

So my refusal to assess appeal has finally been submitted. Does anyone have thoughts on whether it's better to opt for an 'on the papers' or an oral hearing? Picked the former, but I've heard somewhere that sometimes LAs back down right before the hearing. Is this true? Should I change my request to an oral hearing?

The vast, vast majority of refusal to assess appeals are heard on the papers. Usually only an oral hearing if there is a specific need for that.

Thank you, that's reassuring. I wasn't relishing the idea of attending a hearing.

Since i have demonstrated that DC meets the legal threshold, would there be any reason for a tribunal to rule in favour of the LA? I mean, is it their job to consider things like the severity of the need, whether the child can be adequately supported without an EHCP, etc? I would have thought that is the purpose of the assessment itself, and not something to be decided by the tribunal. If so, I'm struggling to see how we even got here, when it's so obvious my DS has additional needs, and the previous Sendco wrote a very strongly worded letter to that effect (after the LA refusal to assess).

The current Sendco is inexperienced, doesn't know DC well and made everything sound rosy. However, in my evidence I highlighted high absence, which must point to something going on that needs investigating? I also included robust evidence from two agencies who are working with him. Surely an experienced tribunal panel won't just look at the second Sendco letter and think oh, the child is better now?

The new setting is heaps better for him, but it isn't a magic solution by any means. I've realised it's more than just the transport issue, which I was initially focused on 😔The first Sendco said as much.

SENDIST will consider all evidence. If your case proves DC a) has or may have SEN, and b) may need special educational provision to be made via an EHCP yourself appeal should be successful.

You need to demonstrate DC may require provision to be made via an EHCP. Not just that they have/may have SEN. Sometimes it is possible to prove this by proving an assessment is required in order to understand DC’s needs and the support required.

Hmm, I probably could have emphasised point 2 more strongly but the evidence is in there. Thanks for your swift advice. Now we wait 😬

Hi Everyone. We were successful in our appeal and a draft EHCP has now been issued. The problem now is that we aren't happy with it and neither are the school. The LA didn't request an OT assessment, and a lot of important points weren't included in nearly enough detail. I responded with what I could but asked for more time than the 15 days so that the OT assessment can be done and a proper response made. They replied that they can't keep the case open and will issue a draft (another draft?) on 18 December after they receive the school's response. But the school has already broken up for the holidays so what then?

The LA also said they've been advised my child doesn't need an OT assessment. But he gets overwhelmed and burnt out and is then off sick. The school Sendco said he seems fine in noisy environments - but 'seems fine' is surely not a way to assess the overload experienced by an ASD child! I've been privately advised that the OT assessment can show us exactly where the sensory overload is coming from, otherwise we're just guessing.

What should I do?

• continue to work on my more detailed response in spite of the 15 days having elapsed
• insist they do an OT assessment
• get an NHS OT assessment myself (don't know how long referral times are)
• get an independent EP assessment (the LA one was disappointingly vague)
• let them issue the ehcp as it is, but don't accept it and what then?

I had some advice from SOSSEN in the appeals stage but haven't managed to get through to them again yet. Will keep trying. Any advice from anyone with experience will be gratefully received.

If you have further representations to make, do that now. Don’t wait for a potential OT assessment. The LA is unlikely to change their mind at this point without significant delays. You could try contacting the Monitoring Officer &/or the Designated Medical Officer/Designated Clinical Officer, reminding them of the duty under the SEN Regs. Even if the LA undertook an OT assessment, it is unlikely to be comprehensive and the content of the report included in the EHCP in full. Normal NHS lists will be long and may not look at sensory OT because not all ICBs commission sensory OT on the NHS.

It isn’t a case of ‘letting them’ finalise. The LA doesn’t need you to agree to accept it before finalising. Some LAs do sometimes issue an amended draft but after issuing the original draft and giving you at least 15 days to make representations, there is no further legal requirement for the LA to issue another draft if they aren't going to make any amendments or the amendments made are a result of your representations. They could finalise without consulting you again. See SENCOP 9.125 and Reg 14(1) of the SEND Regs 2014. If the LA make other amendments, they must reissue the draft and give you at least 15 days again.

The EHCP should be written based on needs and provision required, not written to fit a specific placement.

If the LA finalise the EHCP and it is inadequate, you should appeal. You can seek independent assessments (EP and OT if possible) during this time.

Thank you, @EndlessLight. To make sure I’ve understood your main points correctly:

• I will make further representations, even though the 15 days has elapsed.

• I can get in touch with the DCO to push for an OT assessment. But perhaps this will be a waste of time if the assessment isn’t likely to be comprehensive? The EP assessment was disappointingly vague.

• My child’s paediatrician has now referred them to OT. I will check that it’s sensory OT. In the meantime I should try to get an independent EP assessment done.

Some LAs do sometimes issue an amended draft but after issuing the original draft and giving you at least 15 days to make representations, there is no further legal requirement for the LA to issue another draft if they aren't going to make any amendments or the amendments made are a result of your representations.

Do you mean that if they do make amendments as a result of my representations and the school’s representations, they may issue another draft?

If the LA make other amendments, they must reissue the draft and give you at least 15 days again.

In the draft it says they are still consulting with schools regarding placement. So if the plan includes a recommendation for a placement, does this constitute an amendment to the draft and therefore allow another 15 days for me to respond? Also, what is meant by ‘at least’ 15 days?

Yes, make further representation if you have more comments to make.

Yes, you can contact the DCO to remind them of their duties. However, it doesn’t guarantee the LA will comply or if they do, that the report will be good. You should also complain about the EP report.

I would look at independent assessments. If you can only afford one, depending on just how poor the EP report is and DC’s needs, you may decide to prioritise an OT assessment.

Sometimes LAs will issue a second draft, but they don’t have to if the amendments are based on your representations or they aren’t going to make any amendments.

Drafts must never state a placement or type of placement. It is normal for consultations to still be ongoing at this stage. The placement and type of placement will only be in the final plan. You won’t get another 15 days to comment once the placement is named because if the placement is named, that will be a final EHCP. When I said about issuing another draft if they propose to make amendments that are not as a result of your representations, I meant the content of the other sections of the EHCP rather than the placement.

At least 15 days means they must give you a minimum of 15 days, but they can give you more. Some LAs portray the 15 days as a maximum, but it is a minimum.

Thanks again @EndlessLight for your helpful insights. I'll keep chipping away at it. If I don't post again this side of Christmas I hope you and anyone reading has a lovely holiday.