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Douglas Silas outlines the process of conducting assessments for EHC plans

Why do we need SEN Assessments?

Current general SEN duties require a child/young person-centred approach, which now calls for more participation by children and their parents and young people in decision making. The overall aim is preparing the child or young person for adulthood and the SEN Code of Practice (CoP) expects teachers, in collaboration with the SENCO, to assess if a child/young person’s progress is slower than expected and whether they may have SEN. But the school only has a “best endeavours” duty to provide for it. However, some children/young people need more support than can be provided at school/college and, in these cases, an assessment for an education, health and care (EHC) plan may required.

Which LA is responsible?

EHC assessments (referred to as “EHC needs assessments”) may be conducted when someone makes a request for an assessment, or otherwise brings a child/young person to the attention of the local authority (LA) who is responsible for them. By law, the LA responsible is the one in which the child/young person lives, not where their school or college is based. This can be confusing and I have seen requests being made to the wrong LA on occasion. An LA may also become responsible for a child/young person when they are notified by another LA that they will be moving into their area.

Who can request an assessment?

The child’s parent(s), the young person themselves or their school/college usually request an EHC assessment by writing to the LA (there is normally a form for them to complete and submit on the LA’s website). Some people also like to enclose additional evidence which support their request and sometimes also obtain a report from someone like an educational psychologist (EP). An assessment request can also be made on behalf of the child/young person if they are identified as someone who has or may have SEN, or has been brought to the LA’s attention as someone who has or may have SEN, perhaps by a doctor, social worker or therapist.

What do LAs consider?

The CoP states that the LA should consider specific evidence as follows:

  • evidence of the child or young person’s academic attainment (or developmental milestones in younger children) and rate of progress
  • information about the nature, extent and context of the child or young person’s SEN
  • evidence of the action already being taken by the early years provider, school or post-16 institution to meet their SEN
  • evidence that, where progress has been made, it has only been as the result of much additional intervention and support over and above that which is usually provided
  • evidence of the child or young person’s physical, emotional and social development and health needs, drawing on relevant evidence from clinicians and other health professionals and what has been done to meet these by other agencies.

Where the young person is over the age of 18, an LA must also consider whether they require additional time (in comparison to the majority of others of the same age who do not have SEN) to complete their education or training.

The LA can also develop their own guidelines to help them decide when it is necessary to carry out an EHC needs assessment, but these guidelines must not be applied as a blanket policy to certain children/young people or certain types of need.

What if the LA agrees to the request?

If the LA agrees to undertake an EHC needs assessment, it must seek advice and information from specified professionals and obtain:

  • advice and information from the child’s parent or the young person
  • educational advice from the headteacher/principal of the school/post-16 institution
  • medical advice from a health care professional identified by the responsible commissioning body
  • psychological advice from an EP
  • advice in relation to social care
  • advice from any other person the LA thinks is appropriate
  • advice in relation to provision to assist any child/young person in or beyond Year 9 in preparation for adulthood/independent living
  • advice from any person the child’s parent(s) or young person reasonably requests the LA seek advice from.

There should also be advice sought from a teacher of the hearing/visually impaired, if the child/young person has this type of impairment. The LA should not only seek advice on the child’s needs, but also on what provision may be required to meet needs and on the outcomes to be achieved by receiving that provision. The LA must provide the person from whom advice is being sought with copies of any representations made by the child’s parent or the young person and any evidence submitted by them or at their request. Advice and information must be provided within six weeks of the request, or more quickly if possible.

How long should a request/assessment take?

The LA must notify the child’s parent or the young person as soon as possible and, in any event within six weeks of receiving a request for an assessment (or becoming responsible for the child/young person) of its decision whether or not it is necessary to secure an EHC needs assessment. The LA must also notify the responsible commissioning body, the LA officers responsible for social care for children/young people with SEN, the headteacher, manager or principal (or equivalent) of any early years setting, school or post-16 institution at which the child/young person attends or at which they are registered.

What if the LA refuses the request?

If the LA refuses to undertake an EHC needs assessment, the child’s parent or the young person must be notified and they have a right of appeal to the SEND Tribunal.

What happens next?

Having undertaken an EHC assessment, the LA must determine whether or not to issue an EHC plan. The legal test is that the preparation of an EHC plan should be made where “in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan”. If the LA decides that it is not necessary for special educational provision to be made for a child/young person, in accordance with an EHC plan, the notification to the child’s parent or the young person must be given as soon as possible and, in any event, within 16 weeks of the LA receiving a request for an assessment. The LA must also notify the child’s parent or the young person of their right to appeal the decision. So, although an EHC needs assessment can, it does not always lead to the preparation of an EHC plan.

What if s/he already has a statement of SEN?

By law, LAs have been transferring statements of SEN to EHC plans since the introduction of the new SEN framework from 1 September 2014 and must complete these transfers by 1 April 2018. Children/young people who have/had statements at the time of transfer will almost always be entitled to EHC plans. “Transition plans” published by every LA should set out the timetable and process to be followed for transfer, but they should be transferred to an EHC plan whenever there is a significant review of their statement during the transition period, including at specific stages in their education (for example, from primary to secondary school). A transfer is usually done by first holding a “transfer review”, which must be carried out before a child/young person moves from a statement to an EHC plan. Transfer reviews are also considered to be EHC needs assessments by law and follow the same process.

Further information

Specialist SEN solicitor Douglas Silas is the Principal of Douglas Silas Solicitors and runs the website: www.SpecialEducationalNeeds.co.uk. He is also the author of A Guide To The SEND Code of Practice (updated for 2017/18), which is available for all eBook readers:
www.AGuideToTheSENDCodeOfPractice.co.uk

The advice provided here is of a general nature and Douglas Silas Solicitors cannot be held responsible for any loss caused by reliance placed upon it.

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