As local authority budgets are squeezed ever tighter, we are hearing of more cases where schools are telling parents there is no point in applying for an EHCP, or authorities are refusing a parent’s request to assess a child for an EHCP.
Do not be deterred. It is worth knowing that more than 90% of parents who take a local authority to tribunal over refusal to assess win their case. The legal test for whether an EHCP assessment is necessary is set low – you need only to show that the child may have a special educational need (you do not need to identify which type), and that the child may need special educational support.
Most appeals on refusal to carry out an assessment are held on papers alone so you don’t even have to go to hearing. So given the high success rate it is well worth appealing.
Appealing a refusal to carry out an EHCP assessment
When local authorities send out the letter refusing an assessment, they should include with it details on how to appeal to the SEND tribunal. It is the parents rather than the school who trigger an appeal, so you will need to take the lead. Hopefully school will support your appeal, but again do not be deterred if they won’t. Privately some despairing SENCos have told us that they have been instructed by their head not to support the parents as that would be going against the local authority.
The documents you can supply in evidence include school reports; professional diagnoses and reports; educational assessments; and SEN support plans. Reports you have commissioned privately are valid.
Local authority policies on EHCP assessments
Your local authority may try to fob you off with all sorts of ‘policies’ governing when your child can be considered for an EHCP assessment. Those we have heard from families include that the school hasn’t yet spent an additional £6,000; that the child doesn’t have an educational psychologist’s (EP) report; that they are not far enough behind their peers; that they haven’t done so many cycles of plan, do, review. None of these stand up in law.
‘Many local authorities have policies and criteria before you can apply for an EHCP, but these are not legal decisions. The tribunal can only apply the law,’ says Judge Jane McConnell, lead tribunal judge.
In other words, these are nonsense reasons. If you are presented with one of these, refer your local authority to the law (The Children and Families Act, 2014).
There is now a requirement to consider mediation before launching a tribunal case. You are not obliged to go to mediation, you can simply consider it and then say no thank you. But you must have a mediation certificate to submit with your tribunal paperwork (which can be supplied on request from your mediation advisor).
If you need further advice on getting an EHCP, speak to our SEN team.