EHCP Access to Assessment

[Potnia]

I’m in the process of the above, awaiting mediation following refusal. DD10 has ADHD and more recent diagnosis of ASD. The struggles due to ASD aren’t new (obviously) and have been managed at school by SENCO and teachers. Years of support plans and reviews and she is still struggling and it’s worse as she gets older - especially social skills with the other girls.

The reports clearly state she has SEN (ADHD and ASD). The psychiatrist clearly states she needs an EHCP to access the support she needs and potentially a specialist school placement. SENCO backs up need for EHCP. This appears to indisputably meet the statutory criteria for assessment and therefore the LA must assess. Or am I wrong?

SENCO believes the LA automatically refuse every application irrespective of the law.

What the hell is happening and why are the LAs allowed to get away with this, how is it legal? It’s a labour council, to top it off, leaving poor kids waiting months longer for support they are entitled to and probably leading to more expense in future.

Don't bother with mediation, just get the certificate and go to tribunal. LAs use it as a delaying tactic, if they are going to concede they will regardless.

@10brokengreenbottles thanks. The tribunal has a 12 week wait and Senco thinks they’ll cancel before mediation which is about 5 weeks. That’s based on past experience and we have a stronger case apparently. The mediation service confirmed a lot of LAs cancel just before the mediation takes place. This practice is an utter disgrace, surely it’s an abuse of power. Is no one legally challenging this practice?

You only have to consider mediation, not have to go through with it. It doesn't make your case stronger. If the LA are going to concede they will whether you carry on with mediation or just get the certificate. And, importantly, if they don't you haven't wasted time, especially relevant with transition to secondary.

Expert advice is usually to get the certificate and submit to SENDIST ASAP.

Agree don't bother with mediation; it'll only delay things. Parents are getting hearing dates in March/April now so the sooner you register your appeal the better.

And yes LAs frequently behave unlawfully and are not held to account. It is a disgrace.

If a local authority (“LA”) is requested to carry out an EHC needs assessment by a parent, young person, school or college, they must consider:

whether the child or young person has or may have special educational needs (“SEN”); and
whether they may need special educational provision to be made through an EHC plan.
If the answer to both of these questions is yes, they must carry out an EHC needs assessment.

This test is set out in the law (section 36(8) of the Children and Families Act 2014). This means these are the only questions the LA should be asking when considering whether or not to carry out an EHC needs assessment. www.ipsea.org.uk/asking-for-an-ehc-needs-assessment

In a very similar position, DS is 4 and due to start school, he has diagnosed ASD, every professional in his life is saying he needs an EHCP, council just turned down doing an assessment. I just cannot believe they can get away with it.

For people saying turn down mediation, my understanding is that 90% of assessment of needs are reversed at mediation, was told wait is likely 6 months for Tribunal at the moment so surely worth trying?

Think will contact local councillor this weekend. Not sure where else to go.

Who told you that?

95% of tribunals, including for refusal to assess, are upheld. On top of that, around a third of appeals that are registered with SENDIST are conceded. Link.

Mediation certainly doesn't have a 90% success rate though. Most up to date link I could find and not broken down by type of appeal, it's likely to be higher now.

If the LA are going to concede they will regardless of whether you attend mediation or just get the certificate. LAs use it as a delaying tactic. If you do attend mediation and don't reach an agreement you have wasted time - potentially months going backwards and forwards.

Your local councillor may not know anything about EHCPs, or may give you the LA line. You would be better contacting IPSEA or SOSSEN. The SN boards here are brilliant too.

Thanks for links!

I was told that on the phone with the mediator.

I was told that the wait for Tribunal is now about Mid-May/June and that the LA have until the week before to change their decision which could be months away.

I am in an email correspondence with the LA (with quite a few top people cc'd) rejecting their claims and pointing out where they have not followed SEND CoP. I have also done a subject access request to understand what was said at the panel meeting (which I actually am doubtful happened). Hoping they will change their decision but not holding breathe. Will wait to see what date they propose for mediation and if not in next 3 weeks will skip it and go straight to tribunal- thanks for tips.

Our solicitor advised us not to bother with mediation. You can still try and negotiate with the LA even if you have registered the appeal.

The fact that you are appealing will show the LA you are not going to be fobbed off or go away, so they may concede at this point.

Hello,

I recently had a very similar experience where my daughter who clearly meets the criteria for an EHCP assessment was refused an assessment (she Is 7 and has ASD, ADHD and anxiety). When I spoke to a solicitor they advised I skip mediation as it is used by LA as a delaying tactic but I felt that if I had a chance to speak with the LA they would I understand my daughter’s needs and reverse the decision. We went to mediation and the decision was indeed reversed. It was frustrating that they didn’t agree to assess initially but this experience proves that depending on the LA mediation can actually move the process along.

No one is saying mediation isn't sometimes successful, but LAs do use it as a delaying tactic. The point is that if you do go to mediation there is the chance you have lost time. Potentially a long time, there's a poster elsewhere on MN who has been at mediation for over a year despite advice to cut their losses.

Whereas, if you just get the certificate you don't lose time. There's nothing stopping you having the discussion you did with the LA whilst also submitting to SENDIST. If the LA are going to concede they will regardless of whether you go to mediation or just get the certificate.

An update. The council have cancelled the mediation and agreed to assess. Although they haven’t the decency to contact me directly. This is common in this LA, a labour run council in outer London. Clearly the MO of the council varies from place to place. Happy to disclose via PM if it helps anyone else going through this process.

We didn’t submit any new evidence, although the form completed in preparation for mediation was strongly worded, with reference to the law.

The most reliable advice came from the Senco, who’d done this a number of times before so was familiar with the council’s behaviour. The Senco has never been to tribunal because the council always backdown in or before mediation. In this case it’s to waste time and put off parents who aren’t sure, aren’t capable or, in some cases possibly, don’t care. Remember this is a Labour council letting down the most vulnerable kids.

Glad to hear you got the assessment Potnia...the exact same has happened to us too. It's just horrible to go through the emotional rollercoaster and have the LA abuse their power (in my opinion). I also am in a labour council in the suburbs of London - wonder if we are the same?! North?

Not North London but it’s annoying this is happening in other LAs. Although better than dragging us to tribunal which would mean not assessing until July due to delays.

Surely this is unlawful and needs to be challenged via judicial review. SENDIASS advised the LA have a higher criteria we have to meet than the legal one. Again this must be unlawful. If I was wealthy I’d raised the JR myself.

Hello,
A little late to this conversation.

I going through something similar. My child is 4 and started reception in September. His Nursey had applied for a EHCP (Jan 2020) which was turned down and offered IPRA funding for two terms. Since he started school, the first 2 months were fine and in November 2020 everything started. Reduced hours and constant calls out to collect him. The schools SENCO is not hopefully and has just added stress. I applied fo a EHCP in December which was turned as stated the school did not provide information. I was advised to go for mediation . The school submitted an application last week which went to panel on Wednesday and refused due the lack of information. I going to appeal . Not sure what evidence I need as the school have not given me anything in writing, I have request for his school records.

The only criteria for assessment are -

1. Your child has or may have SEN - does he have a diagnosis or on a waiting list for referral?
2. Your child may need SEN provision - are the school meeting his needs with their current provision, if not is this because they haven’t tried properly or because his needs are greater than they can handle?

The school needs to detail what they have done and review it. So they should fill in their form as requested and provide a provision map for the last two terms (they should be doing this anyway) with the outcome of the first term - did it work? Plus you’ll have any medical reports and letters. No need to reapply with school’s evidence if you can book mediation now. Contact the mediation service to book it in and you can provide any new evidence just before the mediation session. Some schools are rubbish sadly. If they are it maybe worth looking at other schools if there any others nearby, this can be named on the EHCP if it’s oversubscribed. Having the school on side is a big help as it’s all focussed on education and having barriers to accessing education.

You can contact your SENDIASS service for advice, some are better than others apparently. IPSEA have good resources too. Just remember that most applications are refused and it’s a deliberate strategy to delay or deter parents from pursuing the EHCP.

Further to the general process. I wonder if the LAs are no longer going to tribunal due to legal action, I think the SENCo mentioned a case taken against a council which has perhaps set a precedent and they are using mediation to delay/deter instead. I also wonder if they pay for mediation if they cancel a few days before.

xSCLx Don't allow the school to illegally exclude DS. Refuse to collect unless given official exclusion paperwork. Part time timetables like DS has been put on are illegal whether you agree to it or not. Unlawful exclusions can be challenged via Judicial Review. SOSSEN can help with a pre-action letter if necessary. After the initial stage JR proceedings are undertaken in the child's name and therefore they are entitled to legal aid.

Always follow up conversations in person and on the phone with emails so you have a paper trail. It doesn't matter if they don't acknowledge your emails.

Don't bother with mediation just get the certificate and submit to SENDIST. If the LA are going to concede they will regardless, and if they don't concede you haven't lost time. The only test for an EHCNA is 1) has or may have SEN and 2) they may need SEN provision to be made via an EHCP. Any other hoops the LA want you to jump through are unlawful - 2 years behind, spent £6k, assess/plan/do/review cycles...

Some SENDIAS can be brilliant, but they aren't completely independent, they receive LA funding so will ultimately toe the party line. IPSEA and SOSSEN's websites and helplines are much better. SOSSEN can help with tribunal paperwork as well or sometimes IPSEA can allocate a volunteer to help you. If you post a thread on here MNSN are brilliant too.

LAs have always used mediation to delay/deter parents and will continue to do so, as they will continue to spend £££ hiring barristers to defend tribunals they know they can't win.

@10brokengreenbottles Don't bother with mediation just get the certificate and submit to SENDIST. If the LA are going to concede they will regardless, and if they don't concede you haven't lost time.

But if I listened to your advice I’d be waiting for a May tribunal, June assessment. Instead we have “won” the right to assessment to be carried out in March. That’s three months less by agreeing to mediation vs your advice to wait for tribunal instead.

If there has been a judicial case it may be a newer thing to give up at mediation. This means parents who went through the process a year or more ago, or whenever it was, will have a different experience which is now out of date. Although as suggested, speak to the SENCO as each LA varies. Also ask the mediation service if they have data on refusals overturned before or during mediation.

I’m glad I didn’t listen to the advice to skip mediation. It was the wrong advice for us.

No, it's more than likely you wouldn't have been waiting until June. Because as I have said to you more than once on this thread, if the LA are going to concede they will do so whether you partake in mediation or just get the certificate.

Besides which parents submitting to SENDIST when you originally posted were getting hearing dates for March/April, as Ellie posted, not May.

And it is not my advice, it is what experts advise. If that doesn't fit with whatever your agenda is that's fine, but it doesn't change expert advice. I'm sure if case law set a precedent that indicated another best course of action IPSEA and SOSSEN would have changed their advice. Given JR doesn't challenge whether a decision is right or wrong just the way it is made it is unlikely any JR outcome surrounding failure to assess would alter their tribunal advice.

There are some brilliant SENCOs, but too many give incorrect advice either due to a lack of knowledge or because the school may be forced to provide specified and quantified provision.

It depends where you live when the dates occur. We were told they were booking for may tribunal dates.

And when exactly, in your “expert experience”, would the council backdown if we didn’t book in a mediation date. They clearly never intended to attend so why would you think the LA wouldn’t make us wait if we decided to skip mediation.

The advice above is always that the council won’t back down until tribunal. However that was wrong for me. I’ve seen this advice on a solicitor’s website, again it is wrong. There is no expert on this who knows how each LA will behave. You do not have a clue when the LA would’ve back out of a tribunal. The Senco has had tribunals booked in, again the LA cancelled at the last minute, they didn’t back down just because the parents took it to tribunal, they waited.

If the advice you are giving is expert, please add a link. It’s possible this advice is out of date or irrelevant for some people.

I’m soooooo bloody glad I didn’t listen to you!

Quote where I claimed to be an expert. You can't. I never claimed that. If you actually read what I posted I stated the advice I was giving is what the experts advise - it is. Both IPSEA and SOSSEN give such advice and @Ellie56 posted her solicitor gave the same advice. Many posters on MNSN have received similar advice from solicitors too.

If I thought for a minute you would actually listen and it didn't waste precious resources I would suggest you contact IPSEA and SOSSEN yourself if you want confirmation. Or approach a SEN solicitor. But I won't suggest either because it's not like you'll actually listen.

In a link I posted above the stats are only 56% of tribunals registered in 19/20 (the most up to date stats) went to a hearing. The rest weren't disposed of just before hand!

Read what is actually posted. The advice isn't that they won't back down until tribunal, it is that if you go to mediation and the LA don't concede you have wasted time whereas if you submit to SENDIST you can still have discussions with the LA and if they don't concede you haven't lost time.

You clearly aren't reading what is posted so I won't bother explaining again. MNSN is usually a supportive place, not one where posters respond to advice in a hostile manner.

It seems this thread has gone off course 

@xSCLx

For us the waiting for mediation was only 3 weeks so it didn't make much difference to wait and we had the time as DS doesn't start school till September (tribunals would be a 5/6 month wait which we wouldn't have had time for if wanting an EHCP in place before he starts school).

The mediation process meant that I had spent a lot of time writing the mediation document which documented everything which is helpful for DS file in any case. DS nursery resubmitted DS application after speaking with the LA a week prior to mediation and although it didn't have anymore information it was submitted in a different format and a lot of repetition. Perhaps worth trying to call the LA and discuss exactly what they feel is missing? Or asking school to do this? I suspect for us, the fact we had mediation in the diary made the LA concede quicker than if we didn't as then they would have had till a week before tribunal (I believe). I was also emailing everyone and their dog about it (SEN Man, Head of People, Local Councillors, MP) - I kept everyone at council in copies. Lots of great letters on IPSEA to copy and some case law too for help in what to write.

It's a horrible process and so very stressful- good luck! Hey