EHCP support thread no. 4

[Phineyj]

We've nearly filled the thread again, so here's a new one. Welcome everyone: newcomers, people stuck in the process; battle-hardened veterans of many years...

Here are links to previous threads:

EHCP support thread - www.mumsnet.com/talk/special_educational_needs/4834986-ehcp-support-thread

EHCP support thread no. 2 - www.mumsnet.com/talk/special_educational_needs/4989146-ehcp-support-thread-no-2

EHCP support thread no. 3 - www.mumsnet.com/talk/special_educational_needs/5077140-ehcp-support-thread-no-3

So, the next part of this incredibly frustrating uphill battle...

Used the IPSEA template letter to request additional assessment from OT, SALT and CAMHS...

"You are correct to point out this legislation, however I wish to clarify the statement: "...any person you reasonably request that the local authority seek advice from." You can request that we contact certain professionals, however the LA do not offer the commissioning of health assessments, i.e., seeking professional advice for services a child / young person is not currently open to.

I can contact CAMHS, and the other professionals that you requested within your letter, however they will, most likely, inform me that XX is not open to their services and that they cannot contribute to her EHCNA. Our therapies team have already responded to inform me that XX is not currently open to their services. If you wish to refer XX to these services for further support, then you can do so through the universal referral processes (through your GP, for example)."

I think I was perfectly reasonable in my request.

Whether the child is known to the service or not is irrelevant and you do not need a normal referral. Not known to the service is not an adequate response. The LA cannot commission independent advice if necessary.

@BrightYellowTrain Thank you, yes, that's what I thought. Is it worth trying to argue this/wait for them to contact OT, SALT, CAMHS and their assumed responses of not known or go straight to using the IPSEA template letter to the DCS?

I would adapt IPSEA’s model letter and send it to the caseworker and DCS.

I would be really grateful for some help in addressing this case law point the LA raised in their position statement. They said the LA is ‘not under an obligation to provide a child with the best possible education or to educate them to their maximum potential’. In reference to Devon CC v OH [2016].

They also said ‘that creates no duty to secure the best possible outcomes, nor to secure the provision that is most likely to result in such outcomes being obtained’.

They said the Judge said that ‘where the Children and Families Act 2014 made reference to what a child ‘needs’, it must be addressed to interpret on the basis that ‘needs’ is referring to “what is reasonably required’.

Then the LA said that they do not feel that there is evidence that all provision set out in the independent SLT and sensory OT reports are necessary to meet DD’s special educational needs.

In my opinion, there is plenty of evidence in the reports, the LA just does not want to pay for the provision. They are mainly disputing the direct therapies, OT/SLT time for training and report writing/attending annual reviews and liaising with staff etc. Anything that involves paying a therapist is being disputed.

Sorry, I think the case law refers to R v Surrey CC ex p H (1984) which was referenced in Devon CC v OH [2016].

Sorry, me again. Is the above case law only relevant for Section I appeals? I am appealing sections B and F only.

@Ponche the LA is right in saying there is no duty to provide the best possible education or educate to the maximum potential (R v Surrey CC ex p H (1984) 83 LGR 219) or secure the best possible outcomes/provision most likely to result in such outcomes (Devon CC v OH [2016] UKUT 0292 (AAC). They are also right in saying the duty is to provide what is reasonably required (A v Hertfordshire CC [2006] EWHC 3428). This should consider what is appropriate for the child (C v Buckinghamshire CC [1999] ELR 179 and appropriate is used in 6.1 of SENCOP), not just what is adequate (NM v Lambeth [2011] UKUT 499 (AAC). This applies to the SEP in F.

However, just because the LA doesn’t think something is reasonably required and appropriate doesn’t mean it isn’t actually reasonably required and appropriate.

@BrightYellowTrain thank you, I will check out the other cases you mentioned for background info.

Not sure what to do next? Shall I respond to this in my position statement due tomorrow? Shall I ignore it and address it during the hearing in June? Do I just hope the judge sees through this and agrees that there is substantial evidence that supports the recommended provision?

@Ponche you can address it as part of your position statement. Ultimately, SENDIST will decide what is reasonably required based on the evidence.

Hello all, Can I ask yet again about wording? I know the advice is to ensure B and F are detailed / specified / quantified but at the same time, we keep being warned (by schools, EP, solicitor) against being overly d / s / q.

We've had an updated private EP report ahead of tribunal hearings and it includes things like this (with my comments after ---):

CYP will be supported to develop techniques for coping with change and transitions at school. / Throughout the day / All staff
--- Do we need to give specific techniques? Who specifically will be responsible for delivering them and what specific qualification(s) do they need? ‘All staff’ feels too vague but would SENCo be too specific? Is LSA better?

The number of subjects that CYP studies for GCSE to be discussed so that CYP is given rest periods.
--- Need stronger, clearer wording here? We have ‘discussed’ the number of GCSE subjects X can take with school, but as a mainstream school they say they are not able to make adjustments to the curriculum, so ‘discussing’ it only ended in them saying,’this is how it’s done here’. We want to ensure a bespoke curriculum and timetable and flexibility to do GCSEs over multiple years.

Staff will deliver lessons being aware that CYP needs explicit explanations where language is ambiguous.

--- It’s one thing for staff to ‘be aware’ of CYP's communication needs, and another thing to ensure that they teach in a way that meets those needs. Should it be the SENCo who is responsible?

CYP needs adult support to check on their understanding and retention of information after introduction of lesson or topic. / After the introduction in all lessons with regular checks thereafter / Class staff
--- Are 'adult' and 'class staff' too vague? LSA better?

We have now instructed a solicitor but I still feel like I'm doing the heavy lifting and wondering if they're worth their salt and my summer holiday. I asked them about the above wording and other examples, and they said:

As a general point, we of course agree that the EHCP needs to contain provision that is quantified and specific. However, we do not want the provision to become so specific that a school will not be able to deliver such provision. We will be liaising with <preferred school> regarding the working document in any event and will send them a copy of our updated working document, once we have received this from the Local Authority.

The LA has still not engaged at all with the WD, so are we actually going to end up going through this line by line during the hearing?

@SpaceInvader321 it should be “so specific and so clear as to leave no room for doubt as to what has been decided and what is needed in the individual case” (L v Clarke and Somerset [1998] ELR 129). The Noddy guide has a lot of case law on this if you want to read it.

1. You are right, who will be doing the ‘supporting’ and what does ‘supported to’ actually mean? Support isn’t sufficient - see Worcestershire County Council v SE [2020] UKUT 217 (AAC). The techniques themselves wouldn’t always need to be set out in F in full. It will depend on the individual circumstances and they may differ from situation to automation but will identify the techniques. Where you want a school placement, I prefer ‘throughout the whole school day’. Throughout the day doesn’t always mean it will be the whole day and if it isn’t the school day, who will be doing it at home (hint, it can’t be parents.)
2. To ensure a bespoke curriculum, timetable and flexibility, you would need that wording to be tighter.
3. You are right again. Teaching staff need to (will!) provide explicit explanations and avoid ambiguous language. Being aware doesn’t mean they will do it all the time.
4. Adult support could be the cleaner or a caretaker. LSA/TA and/or teacher/teaching would be better. What is ‘regular’?

None of that would be overly detailed, specified and quantified.

Whether solicitors are worth it is an individual decision and also depends on the solicitor (not asking you to disclose). It is also worth remembering, some of the work isn’t actually undertaken by solicitors themselves. If you are unhappy with the solicitor but want representation and are happy to do some of the legwork, you could look at a direct access barrister. They are cheaper (though still expensive) but don’t hold your hand in the same way.

The format of hearings varies. Some will look at the WD as a whole (although they won’t go through it all line by line). Some will only look at the outstanding disputed content. The latter is increasingly common. There is also the possibility parties will be sent away and instructed to work on the WD.

@BrightYellowTrain Thank you, letter to DCS sent adapted from the IPSEA template and assessment officer informed... This was my email to them:

"Thank you for your email.

I am aware of the phrase ‘reasonably’ in the legislation, however, the legislation does not define this as only being services that the child is already known to. I would consider that assessing the needs already identified by healthcare and/or education professionals (as evidenced in my original request) is a reasonable request. This information is essential to be able to decide if an EHC plan is necessary. A response of “not being open to our services” does not meet your legal duty to get advice in relation to needs, outcomes and provision.

Please find attached a letter I have sent to (DCS)."

Their response (can't fault her responsiveness at least 🙄):

"Thank you for your email and for notifying me of your letter to (DCS).

The primary criteria in which the panel decides whether or not to issue an EHCP is based upon the provisions within the Educational Psychology report, and whether they can be met through Mainstream Core Standards / Quality First Teaching or not. For those who have additional advice from external services, through means of either medical reports / letters provided by parents or that sourced by the LA to those who are open to these services, this information is also considered.

I have contacted the CAMHS team to seek their advice, as you requested. As previously mentioned, I also contacted the children's therapies (which covers both SALT and OT) service for the same reason. I will await their response."

She's copied in her team leader. So presumably they're just going to come back with "We can't give advice as child is not known to service."?

Do I now just wait for a further response?

@BrightYellowTrain thank you for your help!

@Namechangeagain80 I was having a similar problem when requesting the LA seek advice/carry out a sensory OT assessment last year. The LA said no as DD was not known to them. This went back and forth and in the end I got an independent assessment/report completed - which the NHS sensory OT team critiqued.

When I questioned this and explained that I had requested an assessment via the LA, the NHS team said they do have a service agreement in place with the LA to carry out EHCP related assessments for children not known to them.

They offered an assessment and I declined, as by then I had the independent report. However, I am appealing the EHCP contents and as part of this, the LA went on to commission their own NHS sensory OT report. The needs identified in the report are largely similar (but not worded strongly enough) to the independent report, but the provision recommended is nowhere near the same.

Long story short, try contacting your local NHS sensory OT team to see if they can help?

@ponche - that's really useful to know, thank you. Knowledge of any SLA here would definitely be a good thing to go back to the LA with. Likewise if there is anything with SALT.

It's ridiculous well, not when you know they'll do anything to save money that they will do anything to get out of commissioning their own reports and say they consider independent ones.... But then do everything in their power to argue against actually considering them!

DD has actually had a private sensory OT assessment in which the OT concluded that DD had "significant sensory modulation challenges", but unfortunately it wasn't written with an EHCP in mind. (So OT provision was a suggestion but not strongly worded). It was also done 16 months ago, so I assume the LA would consider it out of date anyway. The OT also confirmed challenges with fine motor skills and visual motor integration but didn't assess in great detail as it was primarily a sensory assessment.

I assume that if DD's sensory and fine motor skills challenges is one of the things I raised with the EP, they would surely have to acknowledge that it wasn't their expertise?

The LA should consider all evidence when deciding whether it is necessary to issue an EHCP. The Regs do not require DC to already be open to services for evidence to be sought and considered. If you want to, you could reply that should the LA fail to adhere to the Regulations, you will be forced to take this further. In theory, JR is possible. However, many don’t go down that route because the pre-action letter would cost and it doesn’t guarantee a good report. If you later have to appeal, you could also ask SENDIST to direct the LA to assess - doesn’t always work but sometimes does.

Not all areas have a sensory OT team. Not all ICBs commission sensory OT on the NHS. Some who don’t, do provide such a service for EHCNAs/EHCPs, but not all do.

@BrightYellowTrain That's very helpful. And thanks - I've obviously learned a lot from you! :) I'll go back to the EP with some suggestions before the reports are finalised. But when recommendations like the ones I gave below are left as they are in professioanl reports, can the detail and specificity be worked out at the tribunal? I imagine a lot of EP reports that go before the court are of a much lower quality.

There is also the possibility parties will be sent away and instructed to work on the WD.
Do you mean the case would be adjourned until more progress was made on the WD? Would they set a new deadline or HD?

@SpaceInvader321 sometimes it will be an adjournment with a new HD and the WD can be worked on up to hearing, but it can also be parties being sent away for e.g. an hour then back to the hearing on the same day.

EHCPs are based on the evidence. If the evidence is vague, the EHCP will be vague. That applies even with appeals. It is why, if it is a choice between representation and independent assessments, you should always choose the latter. The best representation in the country can only work with the evidence available. And, yes, lots have woolly evidence. The wording you posted is far from the worst.

I had same as Namechangeagain80
I wrote via IPSEA template and got some, not all, of the requested non health info gathering agreed by the LA after I asked them to state where I was unreasonable in my evidenced requests.

I’m still getting nowhere with the health related assessments though. the LA simply refuse to ask the NHS for these. They say I have to get my child referred in for assessment via self referral.

What more can anyone suggest that can I do to try to push the LA to follow the law, because it will be 1-2 years to wait for those assessments to happen? I need the EHCP panel to have this information so whatever is decided is based on needs.

I have the LA’s EP report. What now, what do I need to do with it? Do I need to go through it against what the specialist reports have recommended, even if they’re a bit out of date now? What else do I need to do?

I’m sorry to ask this but there’s a lot going on at the moment and I can’t see this from googling on the IPSEA site.

@EHCPerhaps there are a few options. You could try contacting the Designated Medical Officer/Designated Clinical Officer (different areas have different roles/terms). You could contact the Monitoring Officer. In theory, JR is (sometimes, it depends on the individual case) possible. However, many don’t go down that route because the pre-action letter would cost and it doesn’t guarantee a good report. If you later have to appeal, you could also ask SENDIST to direct the LA to assess - which doesn’t always work but sometimes does.

Go through the report and check all relevant needs within an EP’s remit are in there. Check there is corresponding provision for each need and that the wording is detailed, specified and quantified. Check the outcomes are SMART and appropriate.

Thanks, @BrightYellowTrain. So, in my IPSEA-adapted letter to the DCS, I did say that I would take it further, including JR if necessary...

Regarding @Ponche 's suggestion of seeing if the NHS teams have SLAs with the LA, from the text about EHCPs on their website, it seems as though they are just as helpful (not):

"New referrals from the Local Authority for Special Educational Needs for completion of an Appendix 4, as part of the EHCP process or tribunal processes are not accepted unless children meet the referral criteria as stated below.

This assessment should be requested through the agreed referral processes, as part of the local offer. If accepted, the child/young person will be seen within our usual response times."

I had actually looked at an OT referral before, and the hoops you have to jump through to even get a half an hour remote call with an OT is ridiculous. Which is why we had a private assessment, concluding that DD had "significant sensory modulation challenges".

And I had also tried previously to get a CAMHS referral for DD's anxiety (won't go into detail, but it is hugely life-affecting) but that was rejected.

It's just brick wall after brick wall 😬

I just don't understand how just an EP can assess the full range of needs a child might have?! (Particularly when those needs have already been identified by multiple health and educational professionals!).

Surely if an EHCP is not approved, that is a solid basis for an appeal in that they didn't actually seek advice and information from all necessary professionals to form a proper judgement?

Re OT, obviously it will cost, but is the best thing now to just see if the previous private provider will do an updated assessment and EHCP-compliant report?

But then I think there also needs to be SALT and mental health assessments....

@EHCPerhaps That's exactly my point - how can the ECHNA be based on needs when they're not assessing half of them?!

"Designated Medical Officer/Designated Clinical Officer (different areas have different roles/terms). You could contact the Monitoring Officer."

Hi @BrightYellowTrain Are those LA roles?

@Namechangeagain80 it doesn’t matter what the NHS will assess for locally. The duty lies with the LA. If the NHS can’t or won’t assess within the timescales, the LA should commission independent assessments.

An EP can’t assess for all needs. Some areas are not within the remit.

Some do decide to seek independent assessments. Realistically, unless you are lucky, you will struggle to find someone able to write a Tribunal standard report (is the previous provider able to do this?) who has capacity within the timescales. And, unless money is no object, you may decide to save your money to target it where it is most needed if you have to appeal following the EHCNA - you may decide you need SALT more than OT.

For a refusal to issue appeal, you need to prove it is necessary for special educational provision to be made via an EHCP. The EHCNA not being undertaken correctly can form part of this.