Richard Nelson LLP’s EHCP solicitors can help advise you throughout the EHCP assessment process. If an assessment is necessary, it will begin after your application has been completed and submitted. Before anything else, the Local Authority should send you an acknowledgement receipt for your application. It is imperative that you check that the application has been received, as there are statutory time limits that the LA must comply with.
The LA must complete its consideration of your application and let you know the outcome within 6 weeks of receiving it.
The legal criteria the LA must follow when deciding on whether to carry out an assessment is set out in Section 36(8) of the Children and Families Act 2014.
The local authority must secure an EHC needs assessment for a child or young person if, after having regard to any views expressed and evidence submitted, the authority is of the opinion that:
- The child or young person has or may have special educational needs and
- It may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.
Therefore your LA must do an assessment if your child has or may have special educational needs and it may be necessary that provision is made available over and above that which is normally available for pupils in a mainstream school.
Section 20 (1) of the Children and Families Act 2014 defines “special educational needs” as:
“A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her.”
A learning difficulty or disability is defined in Section 20(2) of the Children and Families Act 2014:
“A child of compulsory school age or a young person has a learning difficulty or disability if he or she –
“(a) has a significantly greater difficulty in learning than the majority of others of the same age, or
“(b) has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post 16 institutions.”
Special Educational Provision is defined in S21 (1) of the Children and Families Act 2014:
“‘Special educational provision’ for a child aged two or more or a young person, means educational or training provision that is additional to, or different from, that made generally for others of the same age in:
(a) mainstream schools in England;
(b) maintained nursery schools in England;
(c) mainstream post 16 institutions in England or
(d) places in England at which relevant early years education is provided.”
If your Local Authority decides to carry out an EHCP assessment they must act in accordance with Regulation 6 SEND Regulations 2014 and obtain advice from:
- The child’s parent or young person
- Education advice and information from the Headteacher or principal of the school or post 16 or other institution that the child is attending, or
- If that is not available, from a person who the local authority is satisfied has experience of teaching children or young people with special educational needs,or knowledge of the differing provision which may be called in different cases to meet those needs or
- Medical advice and information from a health care professional identified by the responsible commissioning body;
- Psychological advice and information from an Educational Psychologist;
- Advice and information in relation to social care
- Advice and information from any person the local authority thinks is appropriate
- Where the child or young person is in or beyond year 9, advice and information in relation to provision to assist the child or young person in preparation for adulthood and independent living; and
- Advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from.
- Where the child or young person is found to be hearing or visually impaired and the headteacher is not to teach such children or young people then advice sought shall be advice given after consultation with a person qualified to teach the visually or hearing impaired.
When seeking advice the LA must provide the person from whom advice is sought with copies of any representations made by the child’s parents or the young person and any evidence submitted by or at the request of the child’s parent or the young person.
What happens after the assessment?
The LA must decide whether to issue an EHCP. If they refuse to issue a plan they must inform the parents within 16 weeks of the date the request was made and give notice of your right to appeal and information about the mediation service.
If the LA decides to issue a plan the deadline for serving a final signed EHCP is 20 weeks from the date the request for assessment is received. The LA will send you a draft of the EHCP and allow you at least 15 days to make comments on the draft.
On receipt of the draft you have the right to request a particular school. The name of the placement in Section I of the EHCP is left blank and you are invited to express your school preference. You have the right to make representations regarding the draft and the right to require a meeting to take place with an LA officer. Richard Nelson LLP’s solicitors will be happy to assist you at this stage of the process.
These are the issues to be aware of during the assessment:
- Local Authorities often do not comply with the statutory time limits so make a note of when the 16 week deadline, for when they need to inform you of whether they intend to issue a plan and the 20 week deadline when the plan should be finalised and issued.
- Local Authorities often do not seek advice from all the relevant professionals so check who they intend to seek advice from and if they are not seeking advice from a professional that you feel needs to provide advice during the assessment then make written representations pointing out their legal obligations under the regulations.
- They often do not follow the recommendations in the privately instructed report, stating that they only follow their own experts. You can ask them for reasons why your privately instructed reports have been ignored and ask for the recommendations to be included in the EHCP.
Richard Nelson LLP’s expert EHCP solicitors are happy to provide you with advice and assistance during the assessment process. Simply request a free initial phone call using the form on the right hand side of the page.
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Our expert solicitors can provide advice and assistance throughout the assessment process, including helping you provide your Local Authority with any written representations and documents that may be required.