The ongoing battle for SEN support

A recent article published by the Guardian highlights that families are facing significant challenges securing SEN support for their children. It seems that families are simply giving up on seeking EHC needs assessments because of the barriers that local authorities are putting in place.

Difficulties securing EHC needs assessment or EHCPs

As specialist Education law solicitors we are seeing a huge increase in Local Authority’s refusing to carry out an assessment for frankly, no good reason. We are often provided with refusal letters from Local Authorities with completely unlawful reasoning for refusing to assess. Reasons such as ‘the child does not have a diagnosis and therefore we will not complete an assessment’ or ‘the child’s needs are not severe enough and do not reach our criteria for assessment’. 

The legal test for whether an Education, Health and Care Needs assessment should be undertaken by the Local Authority can be found in section 36 (8) of the Children and Families Act 2014. It states:

“The local authority must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted under subsection, the authority is of the opinion that -

(a)        the child or young person has or may have special educational needs, and

(b)        it may be necessary for special educational provision to be made for the child or   young person in accordance with an EHC plan.

This is the only criteria that should be used when making the decision as to whether an assessment is needed. However, all too often we see local authorities implementing policies which add numerous additional criteria. Whilst local auhtorities can create their own policies, they must comply with the law. Unfortunately, the policies are often applied and the legal test completely ignored.

Similarly, if an assessment is carried out and the Local Authority refuse to issue an Education, Health and Care Plan we are seeing more and more that unlawful reasoning is given for this decision.

The legal test for an Education, Health and Care Plan to be issued according to s37(1) of the Children and Families Act 2014 is:

“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—

(a)        the local authority must secure that an EHC plan is prepared for the child or young           person, and

(b)        once an EHC plan has been prepared, it must maintain the plan.

Parents are also being refused EHCP’s regularly because Local Authority’s are of the opinion that the child’s needs can be met within ‘ordinary resources’ available to the school. With budget cuts, bigger class sizes, less teaching assistants and more and more children requiring additional support this is often not the case. Parents do not simply request an Education, Health and Care Plan for no good reason. If things were working in school and their child’s needs were being met from within ‘ordinary resources’ then they would not embark upon this process to start with, especially once they find out what a battle they have on their hands.

Children with special educational needs may require Speech and Language Therapy, Occupational Therapy, small class sizes, specialist teaching and high levels of teaching assistant support which are not readily available from within the schools ‘ordinary resources’.

Department for Education – facts and figures 

Figures published by the Department for Education show that  “there were 14,795 initial requests for an assessment for an EHC plan that were refused during the 2016 calendar year, an increase of 3,860 (35.3%) from the 2015 calendar year”.

The figures also show that there are significant delays being experienced by parents for those who are lucky enough to secure an assessment. From the 36,019 new Education, Health and Care Plans which were issued in 2016, only 55.7% were issued within the 20 week time scale.

These figures match our experience. Increasingly, we are finding local authorities refusing to make EHC needs assessments. Of concern, when parents then challenge that decision, local authorities are increasingly conceding appeals, rather than going to hearing. Whilst this does mean the issue is resolved more quickly for parents and the young people, it does call into question why the EHC needs assessment was refused in the first place.

If you are experiencing difficulties with securing an Education, Health and Care Needs assessment for your child contact our special educational needs solicitors on 02920 291704.