Hertfordshire County Council commits to review of special needs policies following legal challenge

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Dan Rosenberg

Partner, Education & Public Law Solicitor

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Council settles ‘systemic challenge’ by agreeing to undertake a full and thorough ‘Independent Review’

Lawyers say other councils need to take action to better meet the special education needs of children

Hertfordshire County Council has commissioned an ‘Independent Review’ into how it undertakes Education, Health and Care Needs Assessments (‘EHCNA’) for children and young people who may have Special Educational Needs or Disabilities (‘SEND’). 

An EHCNA is the gateway to a child with SEND obtaining an Education, Health and Care Plan (‘EHCP’). An EHCP set out Special Educational Provision that councils are under an absolute duty to secure. This can include specifics such as smaller class settings, direct therapy, or one-to-one support. EHCPs also set out what type of placement the child requires, for example, a mainstream or special school.

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Legal Background and Actions

Confirmation of the Independent Review follows legal action against the Council brought by the father of a child, W.

At a judicial review hearing last year, the High Court heard that the Council had ­initially refused to carry out an EHCNA for W, before changing its mind shortly before the case went to the First-tier Tribunal (Special Education Needs and Disability). The Council proceeded to breach the legal time limit to finalise W’s EHCP.

In a judgment handed down in December 2023, the High Court found that there were ‘serious questions’ over how the Council responded to requests for EHCNAs. The Court acknowledged that there was evidence of wider (and complicated) issues at play in the Council’s EHCNA processes that would affect other children and young people who may have SEND.

 

Details of the Independent Review

W’s father obtained legal advice at the suggestion of the Court. He instructed Dan Rosenberg and Heather Davidson of Simpson Millar LLP and Ollie Persey at Garden Court Chambers to advance W’s systemic challenge to the Council’s EHCNA processes. In settlement of that systemic challenge, the Council has agreed to undertake a thorough and ‘Independent Review’ of its EHCNA processes. 

The Independent Review, the terms of which have been carefully agreed between the legal representatives for both parties, will examine the Council’s entire EHCNA process, including the initial decision whether or not to assess a child or young person, appeals against refusals to assess, concessions in refusal to assess appeals, and the subsequent completion of the EHCNA. 

The Independent Review will report on the operation and effectiveness of the Council’s EHCNA process, as well as make recommendations for potential improvements.

 

Legal Perspectives on the Review

Welcoming the review, Dan Rosenberg, W’s solicitor, commented:

“The agreement by Hertfordshire County Council to conduct an Independent Review of its EHCNA progress is very positive.

We have agreed the terms of the Review with Hertfordshire and are hopeful that the report will highlight where improvements are needed and suggest ways to correct any deficiencies in the council’s EHCNA process.

We also note that the difficulties that parents and young people are experiencing relating to the EHC NA process are not isolated to Hertfordshire, and there are significant problems across England caused by a lack of funding from Central Government.

However, the hope is that this review will be able to identify at a granular level the problems faced by parents when they first seek to get help for their children from the council and identify potential ways forwards.”

Ollie Persey, W’s barrister, added:

“There are systemic failures by local authorities in discharging their duties to SEND children. Hopefully the Independent Review will identify ways in which this local authority can improve its processes.”

 

Personal Impact and Future Expectations

W’s father, Z, said that the failure to carry out an EHCNA his daughter had a detrimental impact on his daughter’s mental health, wellbeing and education:

“My intent all along has been to expose the truth and ensure that the most vulnerable children in our community are supported and protected.

I believe the Independent Review will help achieve these aims and lead to positive change within the Local Authority and ensure their duty to support vulnerable SEND children is carried out. I am very grateful to my legal team who have been very supportive, effective, and indispensable in negotiating this review.”

 

Related Developments and Statistics

In November 2023, the Council also apologised after an inspection report published by Ofsted and the Care Quality Commission (‘CQC’) identified ‘widespread and / or systemic failings’, including ‘significant concerns’ about the experiences and outcomes of children and young people with SEND.

Issues in relation to communication with families and other professionals, the quality and timeliness of education and care plans, and the quality of support for children and young people were raised in the report.

The announcement from the Council comes amidst national concerns that councils are increasingly rejecting requests to assess children for EHCPs amid the financial crisis in the education system.

Figures from 107 English councils – obtained as part of an FOI* request by the website Special Needs Jungle – showing that on average they refused 26.4% of requests for an EHC Needs Assessments in 2023, up from 21.6% in 2022.

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Daniel Rosenberg Profile Picture

Dan Rosenberg

Partner, Education & Public Law Solicitor

Areas of Expertise:
Education Law

Dan has been with Simpson Millar since 2010, and became a Partner in 2014. 

As a leading member of our Public Law department, he works across a wide range of areas in Education Law and Community Care, with a particular interest in work for children and young people.

References

www.simpsonmillar.co.uk. (n.d.). Dan Rosenberg | Public Law Solicitor | Simpson Millar Solicitors. [online] Available at: https://www.simpsonmillar.co.uk/our-people/dan-rosenberg/ [Accessed 22 Apr. 2024].

www.simpsonmillar.co.uk. (n.d.). Heather Davidson | Public Law | Simpson Millar Solicitors. [online] Available at: https://www.simpsonmillar.co.uk/our-people/heather-davidson/ [Accessed 22 Apr. 2024].

Moore, C. (2023). Is the Government rationing EHC plans? [online] Special Needs Jungle. Available at: https://www.specialneedsjungle.com/is-government-rationing-ehc-plans/ [Accessed 22 Apr. 2024].

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