Too clever to have SEN?

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Councils are not meeting their legal obligations to people with high functioning autism

The way children and young people with SEN are supported was changed in 2014.

One major change was the introduction of education health and care (EHC) plans. These documents, which are binding on local authorities, detail a child or young person’s SEN and the provision that they need. It can require support such as one-to-one tuition, therapy and/or particular equipment.

An EHC plan is prepared by a local authority and can only be written after the local authority has made an EHC needs assessment.

I am finding a worrying trend in local authorities refusing to make EHC needs assessments for children and young people with high functioning autism. This prevents these children and young people from obtaining an EHC plan.

What is high functioning autism?

High-functioning autism (HFA) is an autistic spectrum disorder with difficulties relating to social interaction, social communication and rigid thinking. HFA is distinct because of a key diagnostic requirement being the lack of a cognitive impairment.

HFA can often appear to be similar to Asperger’s. There is no clear dividing line between Asperger’s and HFA. In practice, the key issue is how the condition affects your child and what support is necessary.

What’s happening?

Increasingly, local authorities are refusing to make an EHC needs assessment for children and young people with HFA. In addition, many parents are being told by their child’s school that there is “no point” in applying for an EHC needs assessment because their child is “not bad enough”.

The reasons being given are:

  • the child or young person is making some academic progress
  • the local authority requires that a child or young person is performing below a particular academic level before it will make an EHC needs assessment
  • the child or young person has to be below a certain IQ before it will make an EHC needs assessment
  • there needs to be clear evidence that the child or young person needs more than £6,000 worth of support before the local authority will make an EHC needs assessment.

The issue of academic progress can be considered by local authorities. However, it is not determinative and should not be used by local authorities as the final question. The other bullet points do not feature in the law.

What should the local authority consider?

The law requires that a local authority should make an EHC needs assessment if:

  • the child or young person has or may have SEN
  • it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

HFA is almost certainly an SEN. The question therefore is whether the particular child may need an EHC plan. This is a subjective question. The reasons that I am seeing are blanket policies, meaning local authorities are not considering applications for an EHC needs assessment properly.

Conclusion

The only relevant consideration for an EHC needs assessment is whether the child or young person has SEN and may need an EHC plan. There is no reference in the law to funding, IQ levels or comparative academic achievement.

Children and young people with HFA are likely to have SEN. All children with HFA will demonstrate social interaction difficulties, social communication difficulties and rigid thinking.

If your local authority refuses to make an EHC needs assessment purely on the basis of academic achievement, that is failing to address the law properly. Such a refusal may well be unlawful and you should think carefully about challenging the decision.

Further information

Ed Duff is a specialist SEN solicitor at Boyes Turner, based in Reading:
www.senexpertsolicitors.co.uk

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SEN law
HCB Solicitors

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