Refusal of EHCP Assessment, Grounds for Appeal Advice

[Grammy78]

Hi, my child has been turned down for a EHC assessment. They start reception in September and have a diagnosis of ASC with high levels of anxiety and restricted behaviours and significant motor planning difficulties. The nursery she has just left is part of the school she'll be starting in September with the same senco and support staff. The setting and specialist support service submitted evidence to the LA that mirrored what my request for assessment said. I have a mediation certificate already stating that I am not interested in mediation. In the letter the LA have stated that:

-The panel acknowledges that my child has additional needs.

• There is no evidence to suggest that an EHC plan is required at this stage and their needs can be supported by their setting, via the funding delegated to them and from the specialist support services, following their transition to the primary setting.
• They are making progress as their levels of attainment are 'developing' and 'secure'.
• Robust planning would be required to ensure their transition to the primary phase is successful.
• SLT member on the panel suggested an updated SLT assessment is requested once they are settled in their primary setting.
• Should concerns remain following transition, panel will be happy to reconsider the submission.

So far my ideas for appeal are:

• Section 36 (8) of the Children and Families Act 2014 (C&FA 2014) states that the LA must secure an EHC needs assessment for the child or young person if the child or young person has or may have SEN, and, it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.
• The panel acknowledges that my child has additional needs. The LA have stated that if 'concerns remain following transition, panel will be happy to reconsider the submission'. This indicates that the panel are aware that my child meets the criteria for an assessment now. Transition will make no difference to this as my child has a lifelong condition that has affected them throughout their life and the various large transitions that they have already experienced so far have not had a permanent affect on their needs and the provision they need.
• My child has not been assessed for an EHC plan and has had no contact with an educational psychologist. The LA does not know if my child meets the criteria for an EHC plan as they haven't been assessed and their needs and any support they require from their setting haven't been properly investigated.
• The LA describe my child as 'making progress' as their 'levels of attainment across the Early Years curriculum are either 'developing' or 'secure'' and use this as a reason for not assessing them for an EHC plan. Whilst the Code of Practice does suggest that LA can have regard to a child or young person's academic progress, this guidance does not supersede the statutory requirements. 'Making progress' does not take into account her high anxiety, associated behaviours and her sensory processing difficulties which she has been receiving additional support for.
• Whilst it is great that the panel considered that robust planning would be required to ensure my child's transition to the primary phase is successful, my request for a statutory assessment was for the panel to decide whether my child has or may have SEN, and, it may be necessary for special educational provision to be made for them in accordance with an EHC plan.
• The panel states that my child does not meet the necessary criteria to warrant proceeding with an EHC needs assessment yet a member of the panel suggested that my child has an updated SLT assessment once they are settled in their primary setting.
• It has been documented and shown that my child having additional support has had a positive affect on their anxiety, their ability to engage with other children and adults and being more likely to access the curriculum. This only happened after her hours were reduced so that she was supported the whole time she was at nursery.

I know that it might not be any use but it was bloody therapeutic to write it all out!

Shame you got the mediation certificate so soon. It might have been better to wait until your 2 months to appeal was about to expire and then got it to buy another 30 days.... I say that as it would have given more time for gathering evidence over the summer and the transition to reception.

Appeals at this stage are "paper based". So take a good look at your paperwork = evidence. Does it tell the story you need:

You need to show how your DD meets the 2 part test in 36(8):

Part 1 - diagnosis of ASD is evidence of SEN however you need to look up the "4 Areas of Need" in the SEN COP. List out your DDs main areas of need and what evidence you have to support these specific items. You are looking for evidence of how your DD's issues will "limit her access to the curriculum" and how poor or odd behaviour is "evidence of un-met needs". How have things gone significantly wrong for your DD at nursery? This might be at home as well as school. Lots of your evidence might relate to anxiety - school refusal, OCD, tics, self harm, making disturbing comments. I highlighted small signs and said they were indicators of future mental health problems - and highlighted that children with an ASD diagnosis were in a high risk group in this regard. It's not nice but you have to paint a rather horrible picture of your lives - school only know about school setting so you have to really illustrate how social and emotional factors affect your DDs case.

Part 2 - may your child benefit from an EHCP? Clearly we parents all believe this but as most kids with ASD are covered by SEN Support and not under EHCP you have to show how your child's needs are more significant than others'. I did this by asking the professionals looking after my son's case to write me letters saying that they thought he might/would benefit from an EHCP. I ended up with 2 letters from psychologists and 1 (sort of) supportive letter from a SALT. Alternatively you may have to show that your DD has had a significant breakdown or series of problems so that her need for help is obvious. Alternatively being able to choose a school based on provision rather than distance is also another valid reason - although it doesn't apply to you (this time - although it will for secondary so if you don't get anywhere now, apply again during y3 with that transition in mind).

What do you think? If you have all this evidence in place I'd imagine you would do well at appeal.

If not I'd say you need to re-group and spend the next 6 months gathering more evidence for another application in 6 months. If you go down this route I've got some suggestions about how to do this.

Good luck!

Hi tartan,

I wrote all that in the request for assessment and their nursery and specialist support service submitted evidence showing the same. Nursery's IEPs were really in depth and were based on assess, plan, do, review and had SMART targets. Each review had logs and the reviews were in depth showing what had worked or not worked etc.

We have had to reduce their hours as they were at breaking point going in during the afternoons as they had no support. They were able to verbalise this and there is a big improvement now they are going and is supported the whole time. In reception they will have support for the mornings only and their setting are funding this themselves as they know that they needs this. I requested the EHCP to secure support for them the rest of the time so they would be able to attempt to go full time when they have to legally.

I also have a list of recommendations from the specialist support service which is a page of A4 and it clearly states what they will need additonal support for.

So have you got a letter or report that clearly states full time support?

You need one or two clear sentences that you can highlight