Should an LA go out for consultation to schools to see if they can meet a need with a draft EHCP which has not been agreed by parents and excludes much of the expert evidence?

We are applying for an EOTAS package for my autistic daughter who is in burnout and cannot access school. We have an EP report, specialist OT report and CAMHS letter to confirm that EOTAS is the most suitable education for her and we have carefully put together a detailed (and reasonable) package mapped against the needs, outcomes and provision detailed in the expert reports. The draft EHCP we were sent in response to this excluded a lot of the evidence from the expert reports which indicated EOTAS and that specialist support was needed and then sent this draft to panel and out to consultation to schools before we had returned our comments (on time within the 15 days) which highlighted the evidence which was missing. Is this right, as any consultation will be based on inaccurate information/plan? The LA are consulting schools as they need to be satisfied that educating her in a school is inappropriate - even though all the expert evidence clearly shows this?
Also we are being told that we cannot include any details in the EHCP about the skills and attributes the person providing the provision must have e.g. trauma informed, SEMH experience. Is this correct?
Any advice would be very much appreciated.


27 Aug 2023

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  • 28 Aug 2023
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    Too fact specific, I can't generalise.:

    Thank you for your question. It seems to me that you raise three main issues which I will address in turn.

    a. Incompleteness of the draft EHCp: Clearly, this is something that you can address with the Local Authority (LA). The Noddy Guide provides a good starting point:

    Q: 06.03 Should the sections of an EHCP be considered in a particular order?

    The Noddy Guide addresses how an EHCp should be drafted in some detail and is an excellent resource. Intuitively, one can appreciate that if all of your daughter's needs and requirements are not identified in the document, its usefulness will be compromised. If you do not agree with the EHCp that is issued, you can seek the assistance of the Tribunal, and this process is addressed in Chapter 12 of the Noddy Guide.

    b. School Consultations: CFA2014 s61 addresses EOTAS and identifies three main obligations placed  on the LA [my emphasis in bold]:

    1. The LA must decide it is necessary for special educational provision to be made otherwise than at school or post-16 institution or a place at which relevant early years education is provided.
    2. The LA must only decide the above if satisfied that it would be inappropriate for the provision to be made in a school or post-16 institution, etc.
    3. Before deciding the above, it must consult with a child's parent or the young person named in the EHCp.

    Please look at the EOTAS sections of Chapter 9 of the Noddy Guide. However, given the above, in my opinion, it is reasonable that the LA should consult with schools in relation to possible placement (Section I). That said, given the facts you have shared, the LA's consultation with yourself and/or your daughter may have been inadequate. Meaningful consultation is very important, and you may decide that the LA needs reminding of this. Please see here in the Noddy Guide:

    Q: 09.331 Does the LA have to engage with the parents or young person before providing EOTAS?

    c. In relation to "Also we are being told that we cannot include any details in the EHCP about the skills and attributes the person providing the provision must have e.g., trauma-informed, SEMH experience. Is this correct?" 

    This relates to specificity, and Section F, and I refer you to what is said in the Noddy Guide:

    08.155 Does section F have to be more specific if the child is receiving education otherwise than at school?

    I point you to what the Noddy Guide says more generally about specificity and Section F:

    08.14 Does the SEP in section F of an EHCP have to be set out in detail?

    Assuming what you are asking for is substantiated by relevant expert evidence, you may wish to remind the LA of the above requirements in terms of detail/specificity in Section F and ask them to explain why they deviate from the relevant legal framework.

    I hope this is helpful, and I look forward to reading the contributions of others.



    Sean Kennedy

    Sean Kennedy
    Talem Law