ASK IPSEA Legal Agony Answers

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SEND legal charity, IPSEA, answer your special educational needs and disability legal conundrums on this page. We'll send out a blog post each time we receive a new batch of answers.

To ask a question of your own, click here. Remember, IPSEA can't enter into individual correspondence and if your question requires a lot of personalised input or you're in a tearing hurry, you should contact IPSEA directly.

The answers and questions posed will appear here, in category groups. Click the '+' to reveal the answers and click to move through the pages at the bottom of each section.

Advocacy

How to find a parent advocate / SEN lawyer

Parent Question:

I am trying to look for parent advocacy lawyers for my autistic son. I did see it on the website a while ago, cannot seem to find it.

ipsea answers

IPSEA Answers:

If you want independent advice and support – including a parent advocate - in challenging your child’s school or LA then you can contact us at IPSEA (www.ipsea.org.uk). Your case will be supported by one of our highly trained volunteer advisors. All our services are free to parents.

If you want to instruct an advocate to help support you in bringing a case to challenge a decision made by your LA at the SEND Tribunal then there are a number available. You will need to search “SEN education advocate”. There are many offering their services; all will expect to be paid for the work they do on your behalf and whilst some have a vast range of experience and training in the law such advocates are not necessarily lawyers. You need to be careful in your choices as some are brilliant and others not good at all.

If you want to instruct a lawyer to take on your case then you need to search for an SEN specialist lawyer – not just an education lawyer. Again they will need to be paid (more than an SEN advocate) and you need to make sure they are specialists in SEN.

What you choose will depend on what your budget is and what you need to achieve.

Questioning professionals in the lead up to a SEND Tribunal

I recall reading somewhere (Tribunal rules?) that parents can interview local authority professionals in order to gather evidence towards a tribunal. Is this correct, and if so can you reference the law?

Also, would it be reasonable to, say, write directly to the professionals asking them to quantify/specify their reports for statutory assessment or to comment on the provision (or lack of) as set out in an EHCP eg do you think x hours of y provision per week would be appropriate?

Further, if a professional refuses to quantify / specify / comment as explicitly set out in the SEND Code of Practice, would it be appropriate to report that person to their professional body?

ipsea answers

 

IPSEA Answers

We are not aware of anything which specifically refers to parents being entitled to question Local Authority officers in the lead up to a Tribunal but the

The Tribunal Procedure (First-Tier Tribunal) (Health, Education And Social Care Chamber) Rules 2008 (as amended) contain a number of relevant and helpful provisions.

  • HESC Rule 5(3)(d) says the Tribunal can permit or require a party or another person to provide documents, information or submissions to the Tribunal or a party
  • HESC Rule 16(1)(b) - the Tribunal can order any person to answer any question or produce any document in that person’s possession or control which relate to any issue in the proceedings
  • HESC Rule 15(1) - the Tribunal can give directions as to:
  1. a) issues on which it requires evidence or submissions;
  2. b) the nature of the evidence/submissions;
  3. c) the number of witnesses for a party;
  4. d) the manner in which the evidence is to be given.

There is also some useful case law on the extent to which LAs should submit evidence which might not be helpful to its case: JF, R (on the application of) v London Borough of Croydon & Anor [2006] EWHC 2368 (Admin) (31 August 2006):

 “Although the proceedings are in part adversarial because the Authority will be responding to the parents' appeal, the role of an education authority as a public body at such a hearing is to assist the Tribunal by making all relevant information available. Its role is not to provide only so much information as will assist its own case. At the hearing, the Local Education Authority should be placing all of its cards on the table, including those which might assist the parents' case.”

If you feel the LA is not sharing or obtaining obtain information that would help to resolve the dispute it may appropriate to ask that the Tribunal uses its powers of case management to hold a telephone case management hearing. Power to hold a case management hearing is found at: HESC Rule 5 (3) (f). Case management is intended to clarify the issues involved in the case and the evidence needed to ensure that the Tribunal hearing the case has all the information needed to reach a fair and just decision.

Requests for a direction or for case management should be made by submitting a Request for Changes Form: http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=3044

Before resorting to any of the above it would certainly be appropriate to write to the professionals involved and ask them to specify and quantify provision. Evidence that you have done this, and that you have not received a satisfactory response, should help when it comes to asking for a direction or for case management.

Should the family spend money on a Lawyer?

Parent Question:

I am helping a family go through the appeal statementing process. We are collecting new evidence and collating existing. The parents are considering employing a lawyer who has so far effectively dismissed all the new assessments we have gained and wants the family to have new ones from people that he recommends. This will be very expensive and I don't think that the family will be entitled to Legal Aid. I am concerned that they will be spending money unnecessarily but want them to have the best chance they can. My gut feeling is that they don't need him but what if I am wrong? I am not in this to make a fortune. I charge a nominal rate and just want to help families who need it.

ipsea answers

IPSEA Answers:

Be very wary of people that want to dismiss existing reports out of hand and recommend that everything must be done anew – especially if it is going to cost a fortune and they are only recommending one professional to go to rather than sign posting parents to a few so they can chose.

Get them to explain clearly why they think a new report is necessary in writing and then ask the professional that originally wrote the report to look at the reasoning and comment. Professional assessment - on which a report is based - cannot be repeated too often (usually not more than once in a six month period) and so there is a timing issue. Most parents that come to IPSEA for support through the Tribunal process cannot afford to pay for independent reports. It may well be a case of getting the original professionals instructed by the LA to do them properly – i.e. specify not only the child or young person’s special educational needs but the special educational provision that they individually need to have put in place to support them as a result of those needs.

All professionals – educational psychologists, speech and language therapists, occupational therapists – will be members of a professional body/association. As part of being a member of that body they will have a duty towards the client (i.e. the child) that should always over-ride the fact they are employed by an LA. If they ignore this they run the risk of being struck off as professionals!


Assessments

Accepting independent reports

Parent Question:

I am a psychologist working in both NHS and private practice for many years. I belong to a very sound professional group (Ass of Child Psychologists in Private Practice- AChiPP) and we had feedback from a member who had attended a JCQ training session where she learned that the schools will be encouraged NOT to accept independent reports commissioned by parents. We are all very concerned that this is very undemocratic for parents, limiting their choices and leverage and that it also violates the principles of the new SEN legislation that empowers parents. I was wondering what your thoughts on this matter are? Many thanks in anticipation.

ipsea answers

IPSEA answers.

Any report from a professional – whether they work for an LA, the health service or independently – has the same validity. Under professional codes of conduct my understanding is that an educational psychologist is pledging that they will do their job to assess a child’s needs, identify provision and make recommendations based on the individual child rather than any resources available to their employer or client. What is most important is: the amount of time the educational psychologist has spent observing and assessing the child; how often has this happened – e.g. a number of times over a period of years; and their use of their own expertise. Any LA that tried as a general rule to encourage the disregarding of independent reports –must therefore challengeable legally. All educational psychologists should be solely focused on the child they are working with, not policy or other political issues around them.

In addition, SEND Regulations 2014 reg.6(1) is clear that any professional that the LA seeks advice and information from during statutory assessment is expected to report on a child or young person’s needs, the special educational provision to meet those needs and the outcomes that can be expect to be the result. Any report from an educational psychologist that fails to this must be referred back to them for additional advice.

Further, the same regulation requires the LA to seek “advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from”. The LA cannot then ignore this advice, but must (again under the same regulation) supply all other professionals involved with “any evidence submitted by or at the request of the child’s parent or the young person”. An LA must specify in a final EHC plan the special educational provision that needs to be put in place to support the child’s special educational needs. If a professional report fails to specify provision, i.e. make clear who is expected to do what, how often, for how long then additional advice must be sort. To not do so would fail the child.

Can a local authority refuse to consider an independent report?

An education professional asks:

A number of schools use my services as I a qualified Specialist teacher. I am also a Developmental Psychologist with specialism in ASD, ADHD and DCD.

Just recently I wrote a report to help a school apply for an EHC. However, the LA wrote back and said that because I was not an Education Psychologist my report was not credible. I understand that an EP has to be part of the EHC process to assess need once it has been decided to go ahead with the process, however the EPs locally are out of capacity and so cannot do other assessments such as those needed to apply for EHCs.

Also, the schools are being told that because they are choosing to use independent professionals and not buy into their service they will be at the bottom of the list. Furthermore, on their Local Offer it states that Specialist teachers can write reports for application of EHC and top up funding.

Can I ask, with [a wide range of relevant qualifications], should the LA legally be taking my reports into account when applying i.e the first stage of an EHC or top up funding or can they legally pick and choose?

ipsea answers

IPSEA answers:

When assessing the need for an EHC assessment, the LA must seek advice and information from various people, including an Educational Psychologist (Regulation 6(3) of the SEN regulations. Therefore it is not acceptable for the Local Authority to not obtain the EPs advice even if they are busy.  A qualified Specialist teacher is entitled to write an expert report and this may be submitted either because LA accepted it was appropriate and sought it: Reg 6(1)(f) or because a parent reasonably requested it: Reg 6(1)(h).

It is worth noting that the school should have consideration of all available reports at assessment stage - The Code of Practice at 6.45 requires the school in identifying a child who requires support to consider a number of factors to include advice from external support services. 6.61 details some of these types of support, but would include private reports obtained from professionals.

Thereafter if a request for a plan is made, the LA would need to then consider all advice and information available. Under 9,4 the LA should consider with professionals what advice they can contribute to ensure the assessment covers all the relevant education, health and care needs of the child or young person, as well as the views, wishes and feelings of the parent. If the parent views the privately obtained report as crucial then it would need to be considered by the LA.

The issue however is recourse if the LA fails to consider the privately obtained report. Whilst the parent (or YP) could argue it needs to be considered, the outcome may lead to a refusal to issue a plan, which would be an appealable decision and the Tribunal would thereafter be under a duty to consider all the documents placed before them.

Can I Request And Insist The LA Obtain The OT Assessment?

Parent asks:

 

Following the SEND Tribunal, the LA have been ordered to do the needs assessment. However,  the LA state that the EHC needs assessment will be without Occupational Therapy (OT), as the waiting time is outside of the statutory needs assessment time. They say they will add it in later and are also say following assessment my child may not be provided with an EHC plan.

Can I request and insist the LA obtain the OT assessment by other means (external agency) so it is included in time for the EHC plan panel decision?

 

 ask ipsea

IPSEA Answers:

 

The SEN and Disability Regulations 2014 state that the local authority (LA) must obtain information and advice from such persons as you reasonably request (Regulation 6(1)(h)): and it may well be reasonable for you to ask that information and advice is obtained from an occupational therapist e.g. where a child has or may have sensory processing difficulties or where they have difficulties relating to motor coordination.  The LA must also seek information and advice from any person that it thinks is appropriate (Regulation 6(1)(f)).

 

From what you’ve written, It’s not clear that your LA is refusing to obtain information and advice from an occupational therapist because it’s not appropriate or it’s unreasonable for you to ask – but rather because there’s a waiting list.

 

This problem is solved (in theory) by Regulation 8 which says that: Where a local authority requests the co-operation of a body in securing an EHC needs assessment in accordance with section 31 of the Act, that body must comply with such a request within 6 weeks of the date on which they receive it.  It may be that both your LA and the

occupational therapy service need to be reminded of this duty.

 

If information and advice from an occupational therapist is sought by the LA and the body in question won’t comply (or won’t comply within the deadline) then it would seem appropriate for the LA to seek such information and advice from outside the NHS/CCG. Certainly this was the view of the LGO in upholding a complaint recently:

 

http://www.lgo.org.uk/decisions/education/special-educational-needs/15-011-838

 

 

It’s always the case that just because the LA has carried out an EHC needs assessment doesn’t necessarily mean an EHC plan will be issued.  Once all the information and advice is gathered, the LA has to make a decision about whether or not a plan is necessary (s.37 Children and Families Act 2014).  If it refuses, then you will have a right of appeal if you disagree with the decision.

 

It’s worth making a note of the deadlines that apply where the Tribunal has ordered that the LA carry out an EHC needs assessment following an appeal.  You must be notified within 10 weeks of the Tribunal’s Order if the LA decides it’s not necessary to issue an EHC plan and you must receive a final EHC plan, if they decide it necessary, within 14 weeks of the Tribunal’s Order (see Regulation 44(2)(b)).

 

 

 

Can my Local Clinical Commissioning Group Refuse to Accept a Private Diagnosis?

Parent asks:

Our local Clinical Commissioning Group (CCG)  says they will not accept a private diagnosis of Autism Spectrum Disorder. Is this legal when NHS policy states private diagnosis is acceptable?  Does the parent or young person have a choice in this matter? What are our options if we do not have EHCP or do not intend to have one?

 

ask ipsea

IPSEA Answers:

There is no basis in law for the local authority (LA) to reject a professional report simply because it was privately obtained.

As this is not a Tribunal situation, your remedy is through the LA’s complaints procedure. We would recommend writing to the LA and asking them to explain the reason or policy supporting their refusal to accept this report. Also, state that you intend to make a formal complaint as you do not believe they are entitled to refuse to accept a private diagnosis.

If they don’t back down, you can make a complaint through their normal procedures. If their response is unsatisfactory, you could take the complaint to the Local Government Ombudsman.

How do I know if we have reasonable support?

Question:

A pupil has been in Year One of state maintained school for five weeks due to family relocation. The school was unaware of autism diagnosis until he arrived. Since arrival, school has assessed his needs and asked for specialist input, asked the LA to assess for EHCP, advertised for 1:1 full time LSA. Meanwhile he has 1:1 morning support and is collected just before lunch.

What should the mother do next? She has met with the headteacher who has advised what the school is doing. Should the school be doing more? Or should the LA be doing more? The EHCP was put in place within the first two weeks of arriving at the school. One specialist teacher has been in to offer advice but the school is still waiting for autism advisor to come (request was made a few weeks ago). Is this an illegal exclusion? Been part-time educated for five weeks.

ipsea answers

IPSEA Answers:

This question is not straightforward as there are further questions that would need to be answered in order to advise properly. The LA ultimately has the legal duty to put the appropriate special educational provision in place so that the child can be in full-time education.

If school/LA were not made aware of the child’s potential SEN arising from his diagnosis before his arrival in the school then the question now is whether the approach being taken and the speed with which they are tackling the assessments of his needs and the provision to meet those needs is reasonable. You need to call IPSEA for specific advice.

My Child’s Father Is Trying To Block An EP Assessment

Parent asks:

My son is converting to an EHCP from a statement and his school wants a new Educational Physiologist report and so do I. I live apart from his dad and he is blocking this. The last one was five years ago. What is the legal perspective on this?

 

ask ipsea

IPSEA answers:

The process of transferring a statement to an EHC Plan is a statutory process for which the local authority is responsible.  As part of this process, the local authority must carry out an EHC needs assessment in accordance with regulation 6 of the SEN and Disability Regulations 2014.  This means the local authority must obtain information and advice from certain people and an educational psychologist is one of those (regulation 6(1)(d)).  The only exception is if the local authority, the educational psychologist who provided the original information and the child’s parents agree that the information is “sufficient” for the purposes of the assessment (regulation 6(4)).

From what you’ve told us, you don’t agree that the information available is sufficient but your son’s father does. In education law, a parent is defined as any person with parental responsibility for the child concerned and any person who “has care of” the child concerned. This means you both have rights in relation to your son’s education and Regulation 6(4) requires all those with a say to agree that the information and advice available is sufficient for the EHC needs assessment. In your case, this requirement is not met as you don’t feel that the information is sufficient. Given that the information is 5 years old, it’s also unlikely that the educational psychologist who provided it would agree it is still sufficient (and certainly could not do so, after such a long passage of time, without spending time with your child!).  Therefore, because you don’t all agree that the information currently available is sufficient, the local authority must obtain new information and advice from an educational psychologist.

The local authority will need to comply with its obligations under section 19 of the Children and Families Act 2014, which requires the local authority to have regard to the views, wishes and feelings of parents and children, but also to provide the information they need to fully understand and participate in processes such as an EHC needs assessment. Perhaps your local authority needs to think about how it might better explain the process and its purpose to reassure everyone involved, including your son’s father, that the key focus is on what might support your son to achieve the best possible educational and other outcomes?

SaveSave

My son’s school has turned him down for extra time in exams, what can we do?

My youngest son is 15 and has just been diagnosed with ADHD. His older brother also has ADHD, he is 22 and was diagnosed at 16 years old. I did not believe the school handled my middle son's ADHD very well.

My youngest son, is now on medication and I have approached the (Independent) school with a view to seeing if he would be allowed extra time as he spends so much time on tasks at home and prep/homework that he has no downtime at all.

He works extremely hard but recent tests at school- one literacy-based and one which explores a student’s ability to ‘process’ information - said neither test result provided scores which were significantly low enough to qualify for exam access arrangements.

The school said they knew my son was anxious about his studies and offered weekly Curriculum Support sessions to maximise a number of skills including organising and completing work; time-management; revision and memory work for exams. They offered help to prepare for his forthcoming French controlled assessment and show him how to use a technique called ‘over-learning’.

My question is ... How can I see a way to seeing that Charlie can be assessed again, if appropriate, we don't agree, we know him better and to be denied when he really needs this to me is criminal especially as they let my other son down so badly. This will be the difference for a B grade to an A or A* for my son. Can you please help or advise me as to where I can go or what I can do?

ipsea answers

Julie Replies

Pupils who have learning difficulties and/or disabilities may qualify for help (called ‘access arrangements’) in public examinations.

It is the school who decides whether this support is needed by reference to rules laid down by the Joint Council for Qualifications (JCQ) on behalf of the exam boards, overseen by Ofqual. For each type of access arrangement, the JCQ sets evidence requirements which must be met by the school for the pupil to qualify. JCQ inspects schools to check that the evidence requirements are strictly followed.

The JCQ rules are updated every year and can be accessed on the JCQ website here: http://www.jcq.org.uk/exams-office/access-arrangements-and-special-consideration/regulations-and-guidance/access-arrangements-and-reasonable-adjustments-2015-2016.

When a school is aware that a pupil may need access arrangements, it should gather the necessary evidence of need from class teachers and others (such as parents, the pupil and any other staff and external professionals involved). The school may need to carry out assessment tests (e.g. of reading, spelling, comprehension, writing or processing speed) unless the  necessary information is already available.

It appears that the school has already assessed Charlie’s literacy and processing skills, but conclude that his scores are not low enough to trigger access arrangements. In the first instance we suggest you ask the school for an explanation of the scores and how this means they will not apply to the JCQ for access arrangements.

If you are not satisfied with the explanation you could ask if the school will assess Charlie again and explain your reasons for doing so. However, the school may decide that to test Charlie again so soon is likely to give an unreliable result, particularly if the testing is identical to the assessment he has just had. If the school refuse you should put the request in writing and send it to the school, copying in the proprietor of the school. It would be useful if you could provide the school with as much evidence as possible concerning Charlie’s difficulties and do include your own views.

Should I request a statutory assessment for my child?

Parent Question:

I was hoping we could request a statutory assessment under the new SEN reform but it seems we can't as he is progressing in academic areas. He has SEN support at school but his plan is not followed well. He has ASD and his main problems are anxiety, sensory modulation difficulties and need for predictability.

School report they do not see any anxiety. When we have commissioned observations from private therapists they do see it but he does not display challenging behaviour or disrupt learning for others. He is still achieving but at what cost to his mental health. He has lots of support at home and we have engaged private services. I feel we are been penalised for helping him as much as we can and regarding school he is becoming physically ill and is miserable. Should such circumstances not still be entitled to a holistic statutory assessment.

ipsea answers

IPSEA Answer:

If your son has SEN (which it sounds as though he has already been identified as having) and may need an EHC plan in place to ensure he gets the right special education support then you should go ahead and ask for a statutory assessment to be carried out.

The legal test for when an LA must carry out an EHC needs assessment is in fact very low. Academic progress is only one strand of education. What is important is to consider his wider educational needs which include the ability to participate socially, cope with his learning environment and participate in all school activities including break and lunchtimes.

Yes, look at his academic progress but also his other needs. Also it is common for children with the type of issues you describe to have spiky profiles, i.e. to be making progress is some areas but to be unable to generalise and replicate this in other areas.

It is concerning that the school has not observed his anxiety. Is it because he does not display it at school (only at home) or is it because they are not trained to see it? It is better to get this question answered now before things potentially escalate for him and he starts developing an aversion to going to school. By carrying out an EHC needs assessment the LA gather the evidence on which they can decide whether he needs an EHC plan put in place or not. Without doing this they cannot know the full extent of his special educational needs

Should social care assess my daughter as part of the EHC needs assessment?

Parent asks:

My daughter is 19 years old and severely sight impaired (registered blind). Throughout her schooling years she was supported with a Statement of Special Educational Needs in a mainstream environment. She left school in July 2014 upon which her Statement ceased and was moved over to a Section 139a and attended a specialised college for the Blind for 2 years.

During her 2nd year she realised that she wanted to change her career path (she was studying a level 3 in performing arts) but after completing work experience in a school environment she decided she wanted to do a Support in Schools qualification (with a view to becoming a TA) as well as continuing with Independent Living Skills and Mobility to build up her confidence (whilst she academically achieved in mainstream, she was very isolated and socially excluded).

Funding was refused from the LA as she didn't have an EHCP and the 139a was no longer in existence as she had 'successfully' completed what she'd set out to do (performing arts).We applied for an EHCP assessment which was carried out, but an EHCP was refused stating that provision can now be met within a mainstream setting. We are taking this to the tribunal.

What I would like to know is:-

  • Should she have been automatically transferred over to an EHCP despite leaving school in July 2014 or at least invited to apply (it appears that if she'd have left school a year later then this would have been the case, although the LA are saying that an EHCP wouldn't have guaranteed despite being statemented)
  • Whether it was up to the LA to gather information (asking for a proper social needs assessment) rather than request information from social services (my daughter is not known to social services, as her provision for independent living skills and mobility orientation were being addressed 1-2-1 via the specialist setting). So, therefore 'no advice' was received, despite her having a clear need (even the educational psychologist report has indicated she has a need!). Therefore I feel she wasn't assessed properly for an EHCP.

I'm finding it hard to understand how a child with a clear need, which was recognised by the Local Authority in the form of Statement of SEN could go on to be educated in a very specialist setting, being funded by the LA and to then be deemed to have a reduced educational and holistic need. Our court hearing is in April, but I feel like I'm flogging a dead horse because all our local LA are concerned about is that her academic needs can now be met within mainstream with reasonable adjustments. Her social needs mean nothing.

 

ask ipsea

IPSEA Answers:

  • Should my daughter have been automatically transferred over to an EHCP when she left school in July 2014?

The law automatically applied to all young people from September 2014. Therefore you are right that the LA was not in breach of its legal obligations by failing to carry out an EHC needs assessment at the time your daughter left school. At this stage, the most practical thing for you to do was to apply for an EHC needs assessment, as you have already done

  • Should a social needs assessment have been carried out as part of the EHC needs assessment?

Information should be gathered from a range of different sources as part of the EHC needs assessment – see paragraph 9.49 of the Code of Practice. The only exception to this is where such advice has already been provided and the person providing the advice, the local authority and the child’s parent or the young person are all satisfied that it is sufficient for the assessment process (paragraph 9.47).

If you do not consider that adequate information has been obtained, you should write to the LA pointing this out and requesting that they obtain the necessary information in advance of the appeal hearing, in order for the Tribunal to have a full set of evidence before them.

At present, it is unclear precisely how much information should be gathered from social services. However, IPSEA’s view is that a ‘not known to this service’ response is not sufficient to meet the requirement of providing “advice and information”, and social services should be providing something more detailed.

  • General points on refusal to issue an EHC plan

A plan must be issued where in light of the EHC needs assessment, it is necessary for special educational provision to be made in accordance with an EHC plan.

It is important to note that anything which educates or trains the young person counts as special educational provision, even if it is something you might associate more with social care. Independent living skills and mobility training would fall under this heading, as it would be training your daughter to be more independent. It seems unlikely that a mainstream setting would be able to provide all of the special educational provision your daughter needs from the resources already available to them.

 

Who applies for an EHCP if parents live in a different Local Authority to the School ?

Education Professional Asks:

  • Who do you apply to for an EHCP if parents live in a different local authority to the school their child attends?
  • Can you reapply to a new local authority if the EHCP was agreed by another authority but without funding?
  • The school this child attends is a private school. We have one child with a funded EHCP at the school. The child had the funding turned down in another authority because he attended another private school at the time. Can the LA turn funding down on these grounds?

ipsea answers

IPSEA Answers:

  • The responsible LA is the one where the parents live.  It is this LA who will be required to secure the provision in the child’s EHC Plan.
  • Responsibility for an EHC Plan would only transfer between LAs if the place where the parents lived changed – and we’re not sure from the question if this is what has happened.  It’s not possible for an LA other than the “home” authority to be responsible for securing the provision in an EHC Plan.

If the parents have moved to a different LA, then the old home LA will need to transfer the EHC plan to the new LA and must do so within 15 days of the move to the new LA.  There is a statutory process of transfer which must be followed (you can find this in Regulation 15 of the SEN and Disability Regulations 2014).

In the circumstances you’ve described, the new LA is likely to conduct an annual review of the plan sooner rather than later because the question of placement (and who should bear the costs of the fees and provision) is not straightforward – and this would the time to seek changes to the Plan.

However, the LA should have told the parents, within six weeks of becoming responsible for the Plan, when they intend to review the Plan. Where a child is attending an independent school at the choice of the parent (and the LA is not legally required to fund the place – which seems to be the case here) then the new LA will not be required to fund the independent placement either – unless amendments to the Plan are made i.e. they agree to name this school in Section I.

A “home” LA can’t refuse to assess or to issue a Plan simply because a child attends a private school – the usual statutory tests apply to the LA’s decision making regardless of where the child goes to school (or, indeed, if they even attend school or not).

However, unlike the types of schools listed in s.38(3) Children and Families Act 2014, there is no right to request that a private school be named in a Plan and it can be hard to secure it being named in a Plan unless the evidence supports the fact that it’s the only school able to meet a child’s needs (or the costs are comparable to any alternative placement being proposed).

Who is responsible for the EHCP when a child moves from one area to another?

Parent asks:

From 2004, my wife and I were foster carers for a young man with severe autism. In 2016, aged 18 he moved to supported living and now lives in an adjoining borough . Until the move, our foster son has lived in and been educated in his home borough. The LA in his home borough funds his care package and he attends a local FE college. Due to his situation he has "ordinary resident" status.

Our ex foster son has had a Statement and the school started, but did not complete, his EHCP. We were informed that as he now lives in another borough and they have responsibility for his EHCP. We understand is in line with the SEN CoP.

My question is this: Can his previous LA export their responsibility for our ex-foster son's EHCP? It would seem to make more sense for the local authority that has all the background information and past history to be the body that undertakes the EHCP process. His new LA seems willing to undertake the process but we are a little concerned it could become a "tick box" exercise without very close collaboration between local authorities. Has anyone any similar experience or could offer advice?

 

ask ipsea

IPSEA Answers:

The LA responsible for a young person is the area in which they are ordinarily resident. However, there are a number of provisions in the law and the SEND Code of Practice which could be of assistance if you are concerned about ensuring the new LA have all of the relevant information.

 

The first step towards getting an EHC plan is an EHC needs assessment (this is the case both when someone is transferring from a Statement to an EHC plan, and if they have applied for an EHC plan for the first time). Paragraph 9.14 of the SEND CoP says that when an LA is considering whether to carry out an EHC needs assessment they should consider evidence of the action already taken by the early years provider, school or post-16 institution to meet the child or young person’s SEN. That means that your son's current LA should contact your ex-foster son’s previous school and LA for information.

The importance of sharing information and avoiding duplication is highlighted at paragraphs 9.32 and 9.33 of the Code:

“9.32 Information sharing is vital to support an effective assessment and planning process which fully identifies needs and outcomes and the education, health and care provision needed by the child or young person. Local authorities with their partners should establish local protocols for the effective sharing of information which addresses confidentiality, consent and security of….”

 

“9.33 As far as possible, there should be a ‘tell us once’ approach to sharing information during the assessment and planning process so that families and young people do not have to repeat the same information to different agencies, or different practitioners and services within each agency.”

If is his new LA agrees to carry out an EHC needs assessment they should discuss with your ex-foster son the range of advice required to enable a full EHC needs assessment to take place. Again, the principle underpinning this is ‘tell us once’, avoiding the child’s parent or the young person having to provide the same information multiple times, see paragraph 9.47 of the Code. This should provide an opportunity for your ex-foster son, perhaps with support, to ask the LA to approach his previous school or LA for information.

Paragraph 9.49 of the Code says that, where it is not possible to obtain educational advice and information from the manager, headteacher or principal of the early years setting, school or post-16 or other institution currently attended by the child or young person, the authority must seek advice from a person with experience of teaching children or young people with SEN, or knowledge of the provision which may meet the child’s or young person’s needs. It would seem logical for the LA to approach the head teacher of the previous school attended for this information, and reasonable to ask for that to happen.

It may be helpful to know that the Children and Families Act 2014 imposes a duty on an LA to co-operate with another LA in the exercise of its functions under part 3 of the Act. See section 31(1) (a) and section 31(2) (a) and (b):

31 Co-operating in specific cases: local authority functions

(1) This section applies where a local authority in England requests the co-operation of any of the following persons and bodies in the exercise of a function under this Part—

(a) another local authority;

(2) The person or body must comply with the request, unless the person or body considers that doing so would

(a) be incompatible with the duties of the person or body, or

(b) otherwise have an adverse effect on the exercise of the functions of the person or body.


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E: Education, EHC Plans | H: Health | L: Legal Assistance | N: Negligence | O: Outcomes | P: Parent Participation, Placement, Post 16, Practitioner Matters, Provision | S-Z: SEND Reform, Social Care, Statement provision, Transfer to EHCP, Transport

Please note: These questions are answered by the team at IPSEA Charity, who are trained in SEND law, not by Special Needs Jungle. If your query is urgent, please contact them directly.