Is what my LA is doing illegal or just weasely and if the latter do I have any hope of getting a statement for dd?

[NoHaudinMaWheest]

I am appealing to tribunal against LA's decision not to assess.
It is clear that dd does have additional needs and the LA have agreed that she does but say that school should be able to meet them from their own resources or if necessary top up funding. School has applied for top-up as they are clear that her needs cannot be met from standard funding. They are also pretty clear that they want that funding to be reliably available which means statement/ECHP.

From what various LA bods have said to me and the SENCO and from reading their tribunal papers and website it is clear that they are trying to convince parents and schools that only children with needs great enough to make a special school essential will qualify for a statutory ECHP and none will be issued for students in MS even with support.

My understanding is that Statements and ECHPs were supposed to be equivalent in terms of the range of needs they covered.

Ds is in yr 13 but repeating yr 12. He has a statement and I was trying to find out when the LA planned to transfer him to an ECHP. In doing this I discovered that they stated that all post-16s were covered by a LDA. However ds is in a school 6th form and again my understanding is that LDA did not apply to him and his statement would stand.

I know there are knowledgeable people on here. Can you help my cut through the waffle?
Thanks

Sorry I didn't make it clear I'm talking about two different children. Ds is nearly 18 doing AS levels and has had a statement for years.
Dd is 14 in yr 10 and has developed problems fairly recently which is why I applied for a statement for her in March.

It says in the new guidence (sp) that changing over from a statement to an EHCP is not to be used as an excuse to remove it from the child, so you eldest should in theory be transferred onto an EHCP until he is 25. If he still needs it. If not they must reassess to make that decision.

Schools have been telling people for yrs that certain children "wont get a statement" and I guess they will continue to say it for EHCP's. If you believe your younger child needs one I would continue to fight for it.

Good luck

Both illegal and weasly, I think. EHCP doesn't apply to your dd if you got the appeal in before 1 sept. Possibly a bit later if your SA request or refusal were pre-1st sept.

She'll come under the old rules- which still stand for 'existing' assessments & statements. So it's the usual criteria- inadequate progress, and her SEN 'probably' can't be met within 'the resources normally available to mainstream schools in the area'. Which isn't necessarily just £ - eg if a dc needed an expensive piece of equipment and school had the cash but not the expertise to buy & use it, that might do.

It's a transitional period now- the two systems run in parallel, with statements gradually swapping over to EHCPs- most will be done at an annual review I think.

And if your DS has a statement, that stands unless the LA either formally does a 'cease to maintain' or they replace it with a EHCP. There's no LDA for school- it's a college thing.

Statutory assessment is for when a dc has SEN that 'probably' require a statement.

Meir, if the tribunal decides in favour of assessment, then it will be an EHC needs assessment leading to an EHC Plan. That's clearly laid out in the transition regulations, and any assessment started now needs to be under the new Act.

However, OP, you're right, EHCPs are meant to be more or less the same as statements but with health and care in much more detail than they were in statements, and your LA is talking nonsense if it's trying to suggest that EHCPs are only for children who need special schools.

Your LA is also talking nonsense in saying that all post 16s with SEN are covered by LDAs. That doesn't apply if they are in schools, where they will have statements, as in the case with your ds. If he's doing AS levels next June, they should be looking at doing a new EHC review with a view to an EHCP around late 2015/early 2016. However, they will obviously only do so if ds needs to stay in education, and he wouldn't have an EHCP if he goes to university.

Veritata, thanks- I didn't know that

Thanks all. You have confirmed what I thought. I don't mind what system dd is assessed under so long as she is assessed. LA have definitely convinced all the education profs I have met that statutory ECHP are only for those with the most severe SNs.

I am not too worried about Ds at the moment as his school support is good. I just want to make sure it stays that way.

According to IPSEA if a young person going to uni has social or health care needs they can be assessed for a CHP without the education element.

I don't think that can be quite right about what IPSEA said - you just can't have an EHCP unless you have learning difficulties. Were they perhaps saying you can have a care assessment under other legislation?

Arrghh...I don't want to be the voice of despair especially as I've been AWOL but I think there needs to be some clarity here.

There are two major changes that affect the SEN landscape.

1. The change in funding arrangements nationally (ie. no choice, all LAs had to adhere to it)
2. The change from Statements to EHCPs nationally (ie. no choice, all LAs have to adhere to it)

Why am I separating them? Because they have different effects on your situation.

Starting with number 2, the EHCP. The criteria for making an EHCP assessment is national. That means that the criteria is the same for every single LA. However, that does not mean that 'Harry' in LA one with an EHCP, would qualify for an EHCP in LA two. Why?

Well, put simply, the SEN CoP says:

"9.3 A local authority must conduct an assessment of education, health and care needs when it considers that it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan." (pg. 142.)

In layman's terms, that's "You must conduct an assessment if you think the child may need an EHCP". Well....when else would you flaming carry one out??

It goes on to say:

"9.14 In considering whether an EHC needs assessment is necessary, the local authority should consider whether there is evidence that despite the early years provider, school or post-16 institution having taken relevant and purposeful action to identify, assess and meet the special educational needs of the child or young person, the child or young person has not made expected progress." (pg. 145.)

That gives a bit more hope, but of course, as with the old SEN CoP, you have that canyon to leap between what the school think is 'relevant and purposeful action' and what the LA think is 'relevant and purposeful action'.

I think what I'm saying is that if your Local Offer covers the sort of provision that would be needed by your DD, then they can say that she doesn't need an EHCP in their authority. Obviously, if she went somewhere else and she needed provision not in the Local Offer, then she'd qualify.

Going to number one: The funding arrangements.

Basically, they've divorced funding from the legal document that is a statement/EHCP. It shouldn't (technically) matter if you have a statement/EHCP or not, if the Local Offer says the provision you need exists and it costs more than the amount the school can put towards it (whether that's because it's too expensive or they've already used their SEN budget on 20 other kids), they can apply to the 'high needs block' for the extra needed.

The only children who MUST have an EHCP are children in Special Schools. Even children in units attached to mainstream schools can be admitted and maintained without an EHCP.

Can I hijack?
My ds is in post 16 in a SS. Should he be moved over to an EHCP at his next annual review?

agiantwoman, your ds should move to an EHCP when he is coming up to the next transition point, i.e probably in the year he reaches 18. However, it is by no means automatic - it would have to be demonstrated that he needs still to in education and that he hasn't met the objectives in the statement.

Also bear in mind that under the new legislation, because he is post 16 the starting point is that only he is entitled to make decisions about his education unless he is lacking in the required mental capacity to do so.

Thanks icimoi. It's so confusing.

I know a lot of councils are trying to argue that there's no need for a statement if the provision the child needs is funded already without one, but that isn't what the law says. As we all know, the main benefit of a statement is having a document that defines what a child needs and which means it can be enforced.

Someone referred me to a great quote in this case -

"The question was not whether the necessary provision would come from one budget or another, but whether it would be provided at all without a statement, not for financial reasons but because of the failure to that time of the school or local authority, with the best will in the world, to understand what was needed and provide it. Resources are not available just because they exist if the council is unwilling to use them because, wrongly, it does not consider that they are needed. The benefit of a statement is not just that money will be available for the provision, but also that its precise terms can be the subject of an appeal procedure, and where there is disagreement between the parents and the local authority as to what is needed, and as to the source of funding, that can be resolved on appeal. I do not consider that Judge Waksman was suggesting otherwise in the Islington case when he referred to the provision being available in the normal resources. It is not available if it is withheld."

That's a fantastic quote. I think the difficulty lies with situations where patents haven't been able to get enough support even to get the needs identified. Then it's very hard to show resources aren't provided or available.

I read some recent research on the gov.uk website yesterday which stated that children with SEN without a statement are 10 times more likely than their peers to be excluded while children with a statement are 7 times more likely.

Shocking figures but surely they help to illustrate that pupils with SEN that need a statement really can't cope?

Lougle and that's the exact position I find myself now in - the lets not go looking....... La head in sand during refusal to assess but then forced to admit during the hearing they hadn't fully identified all the needs so were ordered to assess to do just that. They did assessment and yet again refused to look for anything so as they found nothing issued a NIl - unfortunately we carried on and found lots more needs so back to tribunal we go. Again on the same argument I guess that the LA have still failed to identify all her needs so how can they say the provision she needs can be met through a NIL when here needs were again despite now a tribunal judgement ordering them to do still refused /failed to identify all of her needs. The LA are also arguing that the LA EP report didn't need to specify and quantify as it was for a NIL but given the report by the EP was written 2 months before any decision was made, how did the EP know it would be a NIL so he should write it not to specify and quantify? The answer is obvious, he was told to look and do nothing.........

I'd hope that a tribunal would see through that and find in your favour, tbh.

There's a great case report somewhere where the LA's lawyer (BS, who else) appealed against the tribunal's decision to order statutory assessment, arguing amongst other things that the tribunal couldn't do that without identifying what the child's difficulties were. Predictably he had it pointed out to him that, guess what, that was what SA was for.