EHCP minor amendment - is this possible without full needs reassessment?

[brainfrogg]

My DS (8 yo) is currently not attending school (maintained specialist) at the moment due to burnout and anxiety. I am looking into other schools (small, nurturing, closer to us, great parent reviews) while letting him recover without any demands. The two schools I have identified (maintained specialist) fits our criteria and I feel they will be suitable for DS - this is just from my perspective as the schools haven't assessed DS or looked at his EHC plan. His current EHC plan does not fully reflect his needs. For example, it does not mention anxiety at all as he did not had it until recently. And the schools I like supports children with anxiety/SEMH needs, but they also support other needs which my DS has. His EHCP also states a certain learning approach (used at his most recent school) but I now think its not working for him. I understand this requires needs reassessment but that can take long and I cannot afford to keep DS at home for both personal and financial reasons. I want to go ahead and suggest the schools to the LA, but I need advice on the below:

• Can I get a new school named without requesting any changes to the EHCP?
• Or can I ask for minor amendment to the plan without a needs assessment? Does LA generally consider making small changes to the plan?
• Would it increase our chances to get a place at our preferred schools if I mention they both are the closest maintained SS from our home? Does this also helps with overcoming the learning approach challenge (potential schools using a learning style different to what's stated in EHCP)?

There could be other things to consider. Would really appreciate any help.

If DS isn’t in school, have you requested alternative provision?

Amendments can be made without a reassessment of needs. In fact, most amendments aren’t a result of reassessment of needs.

You need an early review. This isn’t the same as a reassessment of needs.

The review process is as follows:

1. Updated advice and information must be circulated at least 2 weeks prior to the AR meeting. Although if they are ready, some parents decide to forgo needing 2 weeks, especially for early reviews.
2. Then you have the AR meeting.
3. Within 2 weeks of the AR meeting, a report must be circulated.
4. Within 4 weeks of the AR meeting, the LA must inform you if they propose to amend or not. If they aren’t going to amend, you get the right of appeal. If they are, they must send the amendment notice/draft/notice of amendment/proposed amendments (whatever the LA/you want to call it) at the same time and you must be given at least 15 days to comment on the amendments and state your preferred placement. Section I of the EHCP must be blank on the draft.
5. Then if the LA is going to amend, they must finalise within 8 weeks of sending the proposed amendments, so max of 12 weeks from the AR meeting. This is when the placement is named in section I (in most cases, there are some cases where a placement isn’t named in I - you don’t need to worry about that, though). They may or may not have agreed your proposed amendments.

What you describe goes beyond minor amendments.

Yes, in theory, section I can be amended without other sections being amended. However, the placement named in section I is the logical conclusion of B&F. B + F = I. In practice, B&F often need improving. It also sounds like B&F need improving, anyway.

If the EHCP includes a learning style that your preferred schools don’t/can’t use, that may well result in the placement not being named. It depends on exactly what you mean - sometimes schools can and would be expected to adapt, but there is a point where the swing tips too far and it is deemed the school isn’t suitable. To give a really obvious example to try to explain what I mean, a mainstream school wouldn’t be expected to change their whole class delivery to a play-based curriculum with therapies embedded into the curriculum for a KS2 child.

Distance can be a factor in whether a school is named. It being the closest maintained SS doesn’t on its own mean it will be named though.

@scoopofmintchocchipicecream Thank you so much for responding to my post.

I haven't requested AP as I was too exhausted/felt burn out with DS unhappy, daily school struggles, back and forth with LA and then tribunal end of last year. Only I know how I am rebuilding my energy and courage to get back to this system as I have no other choice.

LA sent an email stating that its my DS's final amended EHCP following his most recent annual review. They also mentioned that they have finalised the EHCP by type due to his lack of current school. There is a letter in the email asking to get in touch with LA if we are not happy with the contents of the EHCP. LA has asked to name the schools we would like them to approach.

I find this email confusing for a number of reasons - DS had his last AR in May last year. We did not had any meetings or consultations since then. Also, what does a final EHCP at this point means? And they are also asking us to confirm if we are not agreeing to any of the contents? There is no timeline mentioned as to how many days to respond to them.

How should I respond to LA's email? Should I clarify my confusion? Or shoud I just name the schools and see how that goes? I am dreading that I will get myself stuck in that vicious cycle yet again.

When did you receive that email with the decision letter? If you currently have the right of appeal, appeal.

Unless pressed LAs often breach the AR timescales I mentioned in my pp, so the email/letter could be following last year’s AR meeting.

You say you have the finalised amended EHCP, so won’t be a timescale for you to propose amendments now. That happens when you receive the draft/amendment notice/proposed amendment. If you are not happy, appeal. Following the AR meeting, did you receive a draft/amendment notice (even if it wasn’t recently)? You should have and this is when you should have commented and stated your preferred placement.

What type of placement is named in section I?

I would request AP.

AR happened in May/June last year. We wanted amendments in the speech provision only and provided independent report, but tribunal rejected it saying that the independent therapist spent a few hours only with DS and doesn't know him well, so evidence rejected. Tribubal was in October last year. We never wanted a change in placement back then.

DS stopped attending school in February this year. LA sent this email with the plan and the letter early last week. I don't know if I have the right to appeal. I have no idea why LA sent a 'final amended EHCP' - Can this be due to removing school name in section I? If it is a final plan, why is the LA asking to get back to them if we are not happy with the contents in the plan?

Type of placement in section I is maintained specialist.

Is AP a better choice for DS than a small school with other positives? Is it easier and quicker to get AP than a school placement?

It isn’t about AP instead of school. It is about having AP whilst a place in a school is sorted.

Ask the LA if they are only naming type how they intend to ensure DS receives a suitable full-time education and anything detailed, specified and quantified in F.

You need to read the letter to understand if what you have is the finalised EHCP or not.

If what you have it the finalised EHCP and the decision letter is dated last week, you have the right of appeal. The decision letter should tell you about the right of appeal, mediation, etc. So you should appeal.

If what you have isn’t the finalised EHCP but is the draft/amendment notice, you reply to it commenting on it and any proposed amendments, and state your preferred placement.

The letter/amended EHCP may be the result of last year’s AR and it is just that they are in breach of the timescales. The breakdown of the placement may have triggered them to pull their finger out and get on with completing the review from last year.

This is what the letter states:

"Final Amended Education, Health and Care Plan (EHCP) following Annual Review

I am pleased to share with you the final amended copy of EHCP. I hope you are happy with the contents of the EHCP. However, if you have any concerns or questions please get in touch with me.

Working together in this way will not impact your legal right to appeal. For details of your legal rights, including right to appeal and how you can access independent support, please see the 'useful information' section at the end of this letter."

I am sorry if its a silly question but how can this plan be a final one when it does not have a school placement named in I? Or is it still possible?

If I appeal the contents of the plan, which I know is needed, it will require us to commission an independent EP evidence, correct? I don't expect LA to agree to assess. And if we need EP report, this will take long as I have been contacting EPs and most of them are booked up till July.

I want to take next steps/respond to LA but I feel I am not ready yet to get into appeals/mediation/tribunals yet. These words stress me out completely.

For now, would it be okay to go back to LA saying that the previous school and their learning approach does not work for our DS anymore and we want them to approach abc schools?

So it is the finalised EHCP. You need to appeal.

Not all EHCPs name a placement. You have a type of placement named. You now need to appeal. And ask how the LA intend to provide a full-time education and anything in F.

Many seek independent assessments, but it depends on what amendments are required and what evidence you already have.

It can take perseverance to find an EP with quick availability if that is what is needed. However, your appeal will not be before July. You don’t need to worry about that.

By all means go back to the LA, but don’t let your right of appeal lapse. It is pointless mentioning the old school doesn’t work, that school isn’t named and the LA has recognised SS is required.

In my email to LA:

• Should I state that I am not happy with some of the contents in section B and F in my appeal? Or should I make the amendments and then send the document? I think I need an EP's input for the amendments.
• Do I mention needs reassessment?
• Can I still name the schools in my appeal?
• Can I ask for 'alternate provision' whilst they approach schools? Or wait for them to come back with a potential school?

In my email to LA:
Should I state that I am not happy with some of the contents in section B and F in my appeal?

You don’t appeal to the LA. You appeal to SENDIST. If you read the letter, it will explain how to appeal. By all means email the LA pointing out you intend to appeal and why, but you need to appeal to SENDIST.

Or should I make the amendments and then send the document?

When you submit an appeal, you can send your grounds of appeal. During the appeal process, you get a working document; this is where you propose the amendments required.

I think I need an EP's input for the amendments.

An EP assessment will help, but you don’t need to wait for the EP report before submitting an appeal. You can propose any amendments you already have evidence for then add in more/amend when you get further evidence.

Do I mention needs reassessment?

Personally, no, I would not request a reassessment of needs. I would appeal.

Can I still name the schools in my appeal?

You can appeal section I as well as B&F.

Can I ask for 'alternate provision' whilst they approach schools? Or wait for them to come back with a potential school?

Request AP now.

Can you recommend a few SEND advocacy/legal support services please?

I really appreciate your valuable advice and for sharing all the knowledge you have.

It depends on what you want. IPSEA and SOSSEN have a lot of helpful information on their websites, and both have helplines. SOSSEN also runs walk-in sessions in some areas. For solicitors, you could look at Andrew Barrowclough or Nathan Davies at HCB and Helen Gill or Chris McFarland at Sinclairs. You could also look at Access to Public Law. You could look at a direct access barrister. Cheaper than a solicitor, but don’t hold your hand in the same way. If this is the route you want to go down, you could look at Alice de Coverley. If you use an advocate, be careful. Some are good, but some do more harm than good. It is an unregulated area.