EHC Needs assessment rejected – what next?

[EdPops]

Hi –

My 4 yo DS was flagged for possible ADHD / ASD related behavioural challenges by his nursery and his SENDCo helped us apply for an EHC Needs assessment ahead of him starting reception in September.

I've just received a rejection letter which states:

"... it was decided that at this stage an EHC needs assessment is not necessary. SEND panel currently cannot identify any Special Educational Needs that will require an EHC Plan.
Since (DS) will be attending Reception in September, SEND Panel recommends that the new school make a referral to Speech and Language Therapy team and Educational Psychology service at (LA) for an assessment. This will provide the new school with recommendations on provisions to support (DS) if applicable.
If you wish to appeal you must do so within 2 months of the date of this letter."

Should i appeal or follow the advice of the letter and wait until school?

DH has been conflicted over the whole situation and will see this as confirmation that nothing is wrong with DS. However ADHD / ASD runs in my family unfortunately, i've witnessed the signs in DS myself and feel that if nursery have also raised the issue then it's something to take seriously.

Again, question is should i appeal or let his new school deal with it? DS has only just turned 4 so i don't know how much of these flags are age appropriate behaviour that he may grow out of.

I would appeal. The vast majority of appeals are upheld.

The threshold for an EHCNA is a) has or may have SEN, and b) may need SEN provision to be made via an EHCP. You do not need to prove there is definitely SEN that definitely will require an EHCP.

Without an EHCNA it is highly unlikely DS will receive an EP assessment via the primary school. EP time is extremely limited. In many areas they are only doing statutory work, even then LAs are often in breach of the statutory timescales.

Agree, appeal. That's what we're doing.

However, our consistently 'helpful' Senco keeps making noises about it being unlikely we'll succeed at tribunal because they ask for the school to submit costings for additional support, which they say they won't be able to provide because they can meet her needs within the existing funding envelope. My point back to her is that if we don't understand her needs, how do we know whether we're meeting them. The teacher's response to an issue yesterday suggests they haven't the foggiest clue.

Sorry, rant over - sore subject.

Appeal, appeal, appeal. Nobody but you knows your child better. Nobody but you will put them first. Good luck.

Appeal the refusal to assess. As @Relaxinghammock says the majority of refusal to assess appeals are upheld.

Their letter does not make sense.If the SEND panel cannot "identify any SEN " and don't see the need for an EHCNA, why are they recommending referrals to SLT and EP when this would be part of the EHCNA anyway?

Can i go right ahead with an appeal or do i need to apply for mediation first?

On IPSEA's website it states:

"Before bringing an appeal to the SEND Tribunal, you must consider mediation. This does not mean that mediation is compulsory, but it must be considered."

What does this mean exactly and what constitutes 'consideration'?

Also on IPSEA's website it says a Mediation Certificate should be included with your appeal form which suggests i need to apply for mediation first.

Any ideas?

You need a mediation certificate, but you only have to consider mediation, you don’t have to actually partake. If you don’t want to actively partake call the mediation company (details should be in the letter) saying you have considered mediation, but don’t wish to proceed with it you just want the certificate, please. Personally, I wouldn’t bother with mediation, just get the certificate and submit to SENDIST. LAs use mediation as a delaying tactic. If they are going to concede they will do so regardless of whether you actively partake or just get the certificate.

Thanyou!

I've just spoken with the mediation team regarding obtaining a certificate and they've told me that whilst a certificate can be issued to bear in mind tribunal wait times are currently 'up to and over a year' whilst mediation resolution rates are 96%.

Could i really be waiting that long for my appeal to be heard?

Refusal to assess appeals are not a year. They are mostly paper based and around 3-4 months. If the LA is going to concede they will do so whether you just get the certificate and submit to SENDIST or actively partake. If you take part in mediation and it isn’t successful you have lost that time.

That success statistic is questionable. Actually, it is more than questionable, I don’t believe them.

I have to say that mediation success rate statistic is dubious too. If mediation is so successful why is there such a massive increase in the number of appeals going all the way to a hearing?

Also some LAs to refuse to assess automatically, and then back down once parents appeal.

No it's not, I was told exactly the same thing. I declined mediation (as others have said it's a delay tactic), got a certificate, submitted our appeal documentation six weeks ago and the Tribunal date is September.

I think I know which mediation company it is. They are always boasting about their ‘success’ statistics, it isn’t my experience with them and I never believe them.

Also that success rate sounds very much like the line we were given in the refusal letter that "Only a small minority (nationally around 2%) of children will a child have special educational needs of a severity or complexity that require the Local Authority to determine and arrange special educational provision for the child over and above that which is expected to be provided by a school/setting". If children's needs were being sufficiently met at school then submission and appeal rates would not be so high. The system is stacked against parents from the outset.

@Whatafustercluck there’s some truth in that statement. In the past it was the case that only around 2% of pupils had a Statement of SEN/EHCP. Now it is 4.3%. Your LA may just not have updated their template, either because of ignorance or with the aim of intentionally misleading.

Thanks - i've requested the certificate now and should have it 'within the week'.

Councils will do anything to avoid actually assessing IMO. It's a lot easier for them to duck out of their responsibilities before assessment than after.

Definitely appeal. Councils will often back down before appeal if they think they are likely to lose. And most appeals go in the families' favour. You could put in a freedom of information request for all emails that relate to your application for assessment - just to put the willies up them and make them realise you are going to take no shit.

We were initially refused and got ready for appeal but LEA backed down before appeal. DS was assessed and sure enough the report gave clear recommendation for EHCP.

Don't give up! This is just tactics from your LEA...

It would be a SAR, not a FOI request.

My EHCP is delayed, should have had a plan agreed and in place by now. Really is a shambolic state of affairs. I'm so angry at our government and the lack of funding we receive snd how our local government has misused and funding they have had on vanity projects I might request a SAR if it is free. I'd like to see the correspondence, I expect most of it is us chasing them and very little action from them.

It has been a real eye opener how people treat disabled children in this country.

If the LA is in breach of the statutory timescales, email the Director of Children’s Services reminding them of their duty. If that doesn’t work, email again threatening judicial review. Then, if that fails, you need a pre-action letter.

Most SARs are free. In a minority of cases, the organisation can charge a reasonable fee for administrative costs.

Agree to not bothering with mediation. I did it and regret it - added weeks to the timeline and both the mediators and the LA representative were so unbelievably condescending, slippery, and the end result was a refusal to assess that seemed completely at odds with everything that they agreed to up until that point. It's clear LAs aren't acting in good faith when dealing with parents, there's no need for us to play ball on their terms at this point. 😡