Draft EHCp lacking - due to no NHS input - have private

[Alviemore]

Hi all, thanks in advance for reading this.

I’ve just received the draft EHCP for my son and I’m honestly stunned. It’s severely lacking — most of it is just my Section A, and key sections (especially B, F, G, and H) are practically empty or vague.

The LA are saying it’s because they haven’t had input from NHS SALT or OT yet. Their exact words were:

"We have received an update from the NHS Speech and Language Service… their input will be delayed due to their assessment and report process… We will incorporate their advice once it is received."

"Regarding Occupational Therapy… our NHS team confirmed they have not contributed… as there is no current referral. This referral needs to be completed by the school."

Here’s the thing — they’ve had full private SALT and OT reports since March, and these include clear and specific EHCP appendices. The LA EP refrences these and said agree with SALT and OT.

The school refused to refer to NHS SALT/OT for months, and I ended up having to refer to nhs SALT myself (using the private SALT and pead diagnostic reports as evidence) I even got a response saying he was accepted it would be a 3-month to 3-year wait. The OT - school said it was medical and wouldn't gp didn't. So I didn't worry as I had the private one.

It’s just doing my head in. I know the LA has the legal duty to gather advice under the 20-week timescale, and not getting NHS input shouldn’t stall the whole process when they’ve already got detailed private assessments.

I’m honestly quite taken aback by how bad the draft is and their reason being the school didnt refer. But surely they own the needs assesment and coordination.

Thankfully we are very lucky and have got a solicitor engaged — he’s back from leave on Monday — but I’d love to know:
Has anyone else had similar?
Where a plan was clearly possible but stalled because they pretended private reports weren’t enough?
Any advice or shared stories welcome. Feeling tired and angry.

Oh and yes private reports have tribunal experience as worked with my solicitor before and been used by the LA in other cases.

Thanks again

It isn’t surprising the draft is poor.

Legally, the LA must consider all evidence. That includes independent evidence. Also, Regulation 6(4) of the Special Educational Needs and Disability Regulations 2014 states the LA must not seek further advice if they, the report writer and the parents, agree previous evidence is sufficient. Although LAs often say it isn’t sufficient. The other problem is they often ‘consider’ it, then promptly ignore it. And LAs often lie to parents by telling them they don’t consider independent evidence. None of that is surprising. It happens regularly.

Even if the LA did not agree the existing information was sufficient, you did not need normal NHS referrals. It should have been sought during the EHCNA. If the NHS couldn’t or wouldn’t respond within the timescales (legally they should respond within 6 weeks of the request as per Reg 8(1)), the LA should have commissioned independent advice and information. But again, it is common for LAs to ignore this.

Make the representations in response to the draft. Once finalised, if the EHCP is inadequate, appeal.

That's for your reply.

Yes I would have thought they should seek and themselves coordinate during the needs assesment.

So no one has actually done anything in that time as the EP report and all other reports were finalised and handed in before they said yes they would carry out a NA.

And oddly without all these now essential reports they have agreed to a EHCP but won't use them.

And yes the letter says here is your draft, respond withing 15 days! It's like someone forgot about the timeline and copied in section A and a couple.ofnparts of the EP report then hit send.

Baffling really. Frustrating also as senseless.

Thanks for your reply. At least I know what to expect

Sorry i meant ....**used the private reports for the needs assesment and agreeing to issue ehcp but now these absent nhs ones are very important and needed for the wording but the independent ones cant be used

The 15 days aren’t a maximum. The LA must give you at least 15 days. If you need more time, ask.

Yes agree and solicitor will deal with that. Its just again perplexing that they have done this and will say they are following "timelines" and sending the official letter about 15 days. Yet clearly it won't be done anytime soon if they need to commission nhs and wait for schools to return

Fuckwittery at its finest

The LA won’t necessarily wait for NHS advice before finalising, and shouldn’t if that means breaching the timescales. What they mean by incorporating their evidence once it is received is amending the EHCP. (or not, because sometimes LAs say they will but don’t.) The LA will consult schools but they won’t necessarily wait for the academic year to start before finalising either.

Ok. Thanks maybe not so bleak. Will see what happens next week.

Thanks for the reply

A note on the LA saying they will incorporate further evidence once they receive it. Once the LA finalise, if the EHCP is inadequate, you should appeal - don’t let the right of appeal lapse. Don’t rely on the LA amending at some point even if they say they will.

You can amend the draft now in all sections. I have friends who've literally crossed out everything LA put in, wrote their own draft and LA accepted. That's what the next 15 days are for - they send their draft, you suggest detailed changes, and hopefully something useful comes out of it at the end. You should make specific amendments now and send back with evidence, like your private reports. You can also request a meeting with LA to discuss amendments. Then LA should return amended draft to you..you'll again have 15 days to respond to it. If LA hasn't made the changes after your second revision, you can accept to have the plan finalised with content lacking and then appeal at tribunal.

After issuing the draft and giving parents 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 the representations. The LA can finalise without issuing a further draft. If they wish to make other changes, they must reissue another draft. SENCOP 9.125/9.126.

Thanks for the replies. Will make it easier to discuss with solicitor monday as this is all new to me and like a new language! I suspect given what is written above we will resubmit with all the Ep OT and SALT EHCP reccomendations.

Ironically paying the solicitor to do what the LA should have done. Nonsense

It's very eye opening how 2 tier this system is. I feel for children with no one to advocate for them.

Thanks all

If the LA already has the evidence, you don’t need to resubmit it. You make your representations in response to the draft. That is where you propose amendments and reference the evidence.

Just an update for those that kindly answered me

however i also wanted to highlight how shocked i am at the inadequate work from the local authority.

Succinctly put by our solicitor: I think the key issue the LA does not understand is that it had a duty to secure the relevant advice for the EHCNA and not simply rely on referrals from you/school; it has had voluminous information on his needs and basically completed half an assessment. I agree that this shows a distinct level of total incompetence from the LA.

This is what has transpired over the last week

1. Our solicitor wrote a 4 page letter to the LA witthour feedback to the draftvehcp and included the below:

It is entirely unclear why the Local Authority is seeking to be obstructive in this manner by denying Xxxx access to integral therapeutic provision, especially when it has not commissioned nor made referrals to the Local Health Board in both domains. On the basis that this is the only evidence available to it at this juncture, in addition to the Authority’s requirements to take into consideration the evidence provided in accordance with Regulation 6(1)(h) of the Special Educational Needs and Disability Regulations 2014, it has no position in which to oppose the provision proposed by both experts. A markedly different EHCP is therefore required by return that incorporates the substantial therapeutic intervention ....

2. turns out the LA said they "missed" the EHCP reccomendations (clear and specific and marked as the EHCP sections in the provate reports) and these will be incorporated now...

3. however they then also came back with the below - which still males little.to no sense... i asked them to clarify the OT point so I could go to solicitor and our porvate OT but met with silence (assume will hear back via solicitor)

....I can confirm that we were awaiting the NHS Speech and Language Therapy (SALT) report. However, as we have not yet received it, we will proceed with incorporating the private SALT report you provided into the Final Education, Health and Care Plan (EHCP).

Regarding the Occupational Therapy (OT) report, please note that we have used the recommendations from the private OT report in the Draft EHCP. This report did not specify direct provision, and as such, we only included recommended educational provision relating to his sensory needs.

We did reach out to our NHS OT team, and they confirmed that they do not contribute to EHCPs based on private reports without a formal referral being made. Therefore, Xxxx is not known to their service. You will need to liaise directly with the school on this matter, as it is the school's responsibility to make referrals to the NHS for therapies.

Thanks again for all your effort in replying to me

i also wanted to highlight how shocked i am at the inadequate work from the local authority.

You shouldn’t be shocked. It is standard LA behaviour,

I think the key issue the LA does not understand is that it had a duty to secure the relevant advice for the EHCNA and not simply rely on referrals from you/school

This may be so. Equally it could be they understood perfectly and were fobbing you off.

Reading the independent OT report will tell you if it included direct OT provision. The LA is right that it wouldn’t be included without evidence it is required.

Even if the ICB doesn’t commission sensory OT without a normal referral, the onus is still on the LA to commission advice. This doesn’t have to be from the ICB. Although, as I said, Regulation 6(4) of the Special Educational Needs and Disability Regulations 2014 states the LA must not seek further advice if they, the report writer and the parents, agree previous evidence is sufficient. The problem with is LAs often say it isn’t sufficient. The other problem is they often ‘consider’ it, then promptly ignore it.

Yes i guess I thought my rose tinted spectacles would stay on as everything seemed to be going OK!

The OT report has a whole section dedicated to EHCP clearly laod out by EHCP section and sub headings for direct and indirect OT. How many for how long who should be there where it is what these should look like and how these should be achieved..

Hence v confused that they continue to insist on the NHS before updating.

However DH is fuming they admitted they missed them given we paid the solicitor for the hours spent some of which would have been unnecessary if they had copied and pasted the SALT and OT.

Thanks again - so stressful for all these SEN parents and I feel for all the children with no one to advocate.