Expert Advice

Ask the expert – SEND lawyer

1st June 2017 | |

Recently, My Family, Our Needs asked readers to send in any questions they had about their child or young person’s education so that our SEND lawyer, Ed Duff could answer them. Ed works as a Senior Associate Lawyer at HCB Widdows Mason and regularly attends our Transition Events.

We received a lot of questions from parents needing help from a SEND lawyer and, as some of the circumstances were so complex, Ed kindly gave up his time to talk to those parents on the phone. We’re publishing the rest of the questions here, so keep reading if you need help with your child’s SEND education.

Q. EHCP for a two-year-old

My 2-year-old daughter is on a year-long waiting list for an autism spectrum disorder (ASD) assessment; she has had a speech and language assessment that found that she has delays in all aspects of communication.
I have 2 older children on the autism spectrum. One has an EHCP, one does not. I think she would benefit from 2-year-old nursery funding, but we do not currently qualify.
Would it be worth applying for an EHCP to access the funding?

Louise Jones

A.

In respect of seeking an Education, Health and Care Plan (EHCP), our advice tends to be that it is appropriate to take action as early as possible. The sooner that a young person’s Special Educational Needs are identified, and the necessary special educational provision delivered, the better for them.

In respect of seeking an Education, Health and Care Plan (EHCP), our advice tends to be that it is appropriate to take action as early as possible. The sooner that a young person’s Special Educational Needs are identified, and the necessary special educational provision delivered, the better for them.

Under the regime of the Children and Families Act 2014, it is entirely possible to secure an EHCP for a child of two years. The legal test is slightly different for children under compulsory school age because the definition of ‘‘special educational provision’’ is slightly different. For children under compulsory school age, ‘‘special educational provision’’ is any form of education or training. For children over compulsory school age, ‘‘special educational provision’’ means any form of education or training which is additional or different to that which is normally made available in school.

From your question, I see that there is reference to your daughter having delays in all aspects of communication. A big part of the consideration of whether or not to seek an EHCP, is to consider the nature of the impact that those delays in communication are having. This is relevant because the definition of Special Educational Needs requires consideration of the impact of the difficulties that your daughter has. In order for the communication difficulties to amount to Special Educational Needs, the impact must cause significantly greater difficulties than the majority of your daughter’s peers.

In terms of using the EHCP to secure funding for a nursery placement, this can certainly be done. The EHCP carries funding for both the provision contained within Section F and also the placement named in Section I of the resulting Plan. If there is a fee associated with the placement named in Section I then, unless alternative agreements have been entered into between you and the local authority, the associated fees must be paid by the local authority.

As such, if it seems that the communication difficulties that your daughter is struggling with cause her to have significant difficulties for which she needs any form of education or training then it is likely that she has Special Educational Needs. The next question would then be to consider what special educational provision she actually requires. Given that any form of education or training for your daughter’s age can be considered to be special educational provision, any form of measures dealing with communication difficulties would result in being special educational provision. As such, it is fairly likely on the face of it that at the very least for an EHC Needs Assessment would be the right course of action, subject to the extent of difficulties that your daughter’s communication delay is causing.

Q. EHCP re-assessment

I have a query about my granddaughter’s EHCP. As it has been more than 4 years since her last educational psychology assessment, I requested a new assessment. She attends a special school and the school has an educational psychologist attached to it, so my granddaughter was seen at school.

However, the report, such as it is, is merely comments for the EHCP and no real assessment of needs was carried out. I wondered if we would be within our rights to request another assessment by a different educational psychologist.

Also we requested new physiotherapist and occupational therapist assessments, but these requests have not been granted. Is there any way we can get these assessments done?

Susan Kellett

A.

In respect of young people who already have an EHCP, it is always possible to secure a full re-assessment of their Special Educational Needs. This is dealt with in paragraph 9.187 of the Special Educational Needs and Disability Code of Practice, 2017 version.

What that Code of Practice says is that local authorities must conduct a re-assessment of a child or young person’s EHCP, if a request is made by their parent, or the young person themselves. A local authority may also decide to initiate a re-assessment without a request, if it thinks that one is necessary.

A local authority can refuse to undertake the re-assessment if the most recent EHC Needs Assessment was undertaken less than six months ago. However, it seems from your question the assessment resulting in the EHCP was a number of years ago and so this limitation does not seem to cause you any difficulty.

The Code also sets out that a local authority may also decide to refuse a request for a re-assessment, if it thinks that a further EHC Needs Assessment is not necessary, for example, because the needs of the pupil have not significantly changed.

On the face of it, four years in a special school is a long period of time to be receiving specialist provision. As such, it is quite probable, and to be expected, that your granddaughter’s Special Educational Needs may well have changed. At the very least, we would normally expect that the provision for the SEN would need to be modified and amended away from the form of provision that was initially recommended during the original EHC Needs Assessment.

A re-assessment is the same as the EHC Needs Assessment undertaken at the very beginning of the process. That is covered by the Special Educational Needs and Disability Regulations 2014. Regulation 6 sets out what advice the local authority must secure. That includes particular advice from an Educational Psychologist, but also, at Regulation 6(1)(H) the local authority must seek advice from any professional that you ‘reasonably request’.

There is no real explanation as towards what a ‘reasonable request’ would be. However, with a degree of interpretation, it is likely to be taken to mean that as long as you have a good basis for seeking particular advice, then the local authority really should be seeking it. As such, in respect of your request for advice regarding physiotherapy and occupational therapy, if your granddaughter has needs that relate to those therapeutic interventions, and it is likely that her needs will have changed, then it is entirely appropriate for the local authority to undertake a re-assessment.

A refusal by the local authority to undertake an EHC re-assessment gives rise to the same right of appeal as if you did not have an ECHP. Accordingly, if you submit a formal request for an EHC Needs Assessment, then the local authority must provide you with a formal response to that request. If the local authority does refuse to make the assessment, then you can explore an appeal to the Special Educational Needs and Disability Tribunal.

With thanks to Ed for giving up his time to answer these questions. We have another one coming up tomorrow about rights to education in EHCP’s so make sure you check back in or keep an eye out for updates on our Twitter page @weareMFON if you need some guidance.



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