Getting an EHCP - The First Hurdle

Yolanda Shamash
Author:
Yolanda Shamash
Education and Community Care Paralegal
Date:
21/07/2021

As any parent or guardian to a child with SEN will know, getting a child or young person’s special educational needs recognised, and securing appropriate educational provision, is not always an easy journey.

Before getting an Education, Health and Care Plan (EHCP), many children and young people with mild to moderate SEN will have an informal provision plan within their placement, to help them access the curriculum.

These are variously known as Student Passports, Independent Education Plans, or Provision Maps, and they can be a helpful way of getting additional needs acknowledged and catered for in mainstream school settings.

But Student Passports, IEPs, and similar are informal arrangements between parent and the school and it’s important to know that the provision set out in them is paid for by the school from their notional budget, and is not legally enforceable.

This can become problematic if the provision is later withdrawn by the placement, or if you think that your child needs further provision than the placement agrees is necessary or possible within that budget.

This is the point when it is time to consider getting an EHCP for your child.

What is an EHCP?

An EHCP is a legally enforceable document for a child or young person (up to age 25 and in further education).

The purpose is to set out any:

      • Special educational needs
      • Social care needs
      • Health needs
      • The provision agreed to meet those needs
      • Name the child or young person’s educational placement

How Do I Start the Process of Getting an EHCP?

The first hurdle to getting an EHCP is getting the Local Authority to conduct an Education, Health and Care Needs Assessment, also known as an EHC Needs Assessment, or an EHCNA.

After the EHCNA request has been made, a Local Authority must decide whether to conduct an EHCNA or not within six weeks of the date you requested it.

The first hurdle that many parents face in this process, is a refusal by the Local Authority to conduct the EHCNA.

Who Can Request an Education Health and Care Needs Assessment?

The request for an EHCNA can be made to the Local Authority by:

          • A parent or person with parental responsibility
          • The young person themselves if they are over 16
          • Or a person acting on behalf of the child/young person’s school placement, such as the SENCo

Client Story - Appealing a Refusal to Assess Decision

M is a 12 year old boy with a diagnosis of autism. He attends a mainstream secondary school, and was on the school’s SEN register. He had a Student Passport and Provision Map from his school but M’s mother felt that his needs weren’t being fully understood and that the additional provision from the school was inadequate.

M’s mother was concerned that M was frequently getting in trouble at school for issues such as poor attention in class and low-level challenging behaviour, which she felt might be linked to communication issues associated with ASD, and undiagnosed ADHD.

Her requests to the school SENCo to arrange for an ADHD assessment were ignored, and the SENCo did not think M needed an EHCP, as he was hitting his academic targets despite his behavioural and concentration issues.

When M’s mother came to us for help, she had already made a request for an EHCNAR. The Local Authority had given a Refusal to Assess decision. The letter informing her of the refusal reasoned that M’s needs were already being addressed by provision within the school, and that it would take time to see the positive effects of this additional provision.

M’s mother disagreed with this decision. She could have sought legal assistance to get a mediation certificate and lodge the appeal, but she took these steps herself. She then came to our Education Law team for assistance with the appeal.

Getting Independent Expert Advice

Once instructed we notified the Tribunal that we would represent the family under Legal Help funding in the appeal going forward. We liaised with the Local Authority to request a change to the appeal timetable so we could get independent expert evidence.

This meant we could instruct an independent Educational Psychologist for the appeal, who conducted an assessment and provided a report on M’s needs. This kind of report can privately cost anywhere between £1000 and £2000, but was free to M’s mother under Legal Help funding.

The report set out that in the Educational Psychologist’s view, M had a complex mix of sensory and communication difficulties which would affect his ability to engage with the curriculum, and that he does require an EHCP.

The report recommended provision such as a high level of adult support in school, input from an Occupational Therapist, and that M should have a laptop for school, and should receive extra time in exams. The report also recommended that M should without question be referred for an ADHD assessment.

Fortunately, the Local Authority reversed its decision and agreed to conduct the EHC Needs Assessment. The appeal was settled by a Consent Order without a Hearing.

The EP report was not a factor in the Local Authority’s change of mind, as it was finalised after the Local Authority’s change of heart. But it will now be used as part of the EHC Needs Assessment, to work out whether M needs an EHCP, and what kind of provision he is likely to need.

We hope that now having expert evidence on the table supporting additional provision, the need for an EHCP, and an ADHD referral will be helpful to the decision makers.

After an Assessment is Agreed - The Next Step

The next step for M’s family is for the Local Authority to conduct the EHCNA.

The legal test for this second stage is harder to meet than the test that determines whether a child or young person should be assessed for an EHCP. And there is no guarantee that M will be given an EHCP at first.

But getting the Refusal to Assess decision overturned through the appeal process has put M and his family back on course towards getting an EHCP. Having expert evidence that supports the need for an EHCP, additional provision, and an ADHD assessment, has shown that M does have needs that affect his ability to access education.

That puts the family in a stronger position to get increased special educational needs provision for M, so that his needs can be fully met, and he can be supported to flourish at school.

If you’re in the process of trying to get an Educational Health and Care Needs Assessment, or at a later stage of getting an EHCP and you think independent expert advice would help, get in touch with our Education Law Experts today.

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