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?
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?