This is the second of a two-part Blog post on the Education Health and Care Needs Assessment ("EHCNA") process and looks at what happens when the local authority agrees to carry one out. Part 1, which looked at requesting an EHCNA can be found here.
Once a local authority has agreed to conduct an EHCNA, the steps they must take and the time allowed to complete those steps, are governed by law and set out in the Special Educational Needs and Disabilities Regulations 2014 (“the SEND Regs 2014”) and the Children and Families Act 2014 (“CAFA 2014”). The entire process, from the date the request is received by the local authority to the date the Final Plan (if there is one) is issued, should take no longer than 20 weeks (Reg 13(2)).
The first part of the process requires the local authority to obtain advice and information from a number of sources (Reg 6(1)) including the child’s parents or young person themselves, educational professionals (usually the school or college) and (probably) health and social care services. The advice must be clear, accessible and specific (Para 9.51 of the Special Educational Needs and Disabilities Code of Practice 2015 “SEND COP 2015”) and provided within 6 weeks (Reg 8(1)). The local authority must also involve an Educational Psychologist, as well as any other person they deem appropriate. Where a child or young person is in Y9 or beyond, there must also be information relating to preparation for adulthood and independent living.
Local Authorities are also required to seek advice/information from any person that the parent/young person reasonably requests (reg 6(1)(h). There is no definition of what constitutes a reasonable request, but if a child is already on a waiting list for a service and/or another professional has indicated an area of need, e.g. an EP has referred to a child’s speech and language difficulties, then a request for information in relation to that is likely to be reasonable. Unfortunately, many local authorities routinely refuse to comply with such requests, and it is in practice difficult to compel them to do so; although you can lodge an official complaint about their failure, and potentially seek compliance through the First Tier Tribunal Special Educational Needs and Disabilities ("FTT SEND").
The only exception to the duty to seek new advice/information as part of the EHCNA process is where existing advice and information is ‘sufficient’ for the purposes of the assessment. For this to apply it must be agreed to be sufficient not only by the local authority, but also by whomever provided the advice/information being relied on and the parents/young person. If anyone of these people objects, then new advice/information must be sought.
If, having conducted the assessment, the local authority determines that an Education Health and Care Plan (“EHC Plan”) is not necessary, they must inform the parents/young person by Week 16 of the EHCNA process. There is then a right of appeal against a Refusal to Issue an EHC Plan.
If the local authority decides that it is necessary to issue an EHC Plan, they must provide a draft by Week 14 of the EHCNA process and allow the parents/young person at least 15 days to consider it and to make representations before issuing a Final EHC Plan. During this time the parents/young person can also ask for a meeting to discuss the Draft EHC Plan (and any changes they would like to see made) and can also put forward the type of school/college (e.g. mainstream or specialist) and/or the actual school/college wanted (s38(2) CAFA 2014 and Reg 13(1)). The local authority must then consult with the requested setting, which has 15 days to respond to the consultation (s.39(2)CAFA 2014).
At or before Week 20, the local authority must issue a Final EHC Plan, naming either a specific school/college in section I or a type of school/college. If the parent/young person is unhappy with the placement named, or if only a type of placement is named, then there is again a right of appeal.
Whilst the whole EHCNA process should take no more than five months from start to finish, in practice it is not unusual for parents and young people to wait significantly longer than this. Local authorities frequently fail to adhere to the legal timescales required of them; particularly with respect to providing draft and final EHC Plans. This has the effect of prolonging the time a child or young person is without much needed support (and often a suitable school place), and also frustrates the appeal process; since only a Final EHC Plan can be appealed. There is sadly little to no accountability for the widespread and repeated failures of local authorities to meet their statutory obligations in a timely way, and where a local authority is in breach of the relevant timescales, the most effective, if expensive, remedy is to consider Judicial Review pre-action correspondence against them.
At SEND Advocacy we can support you to appeal against a refusal to issue and/or the content of an EHC Plan, including placement. If you need someone in your corner to help you secure the education your child deserves, contact us today.
