Q:
Is this omission on ECHP draft legal? What would you advise as the next step?
My son’s EHCP draft arrived with an email stating that “I just want to highlight that as an Occupational Report was not requested at NA2, and xxx had been discharged from their service there is not any OT input in the draft. If a new referral for an OT is made for Ethan and subsequently we receive a report this can be added to his EHCP once it is finalised."
My child (6) has complex needs - a number of different systems involved
Speech disorder - Childhood Apraxia of Speech (CAS)
Physical disorder - Fine motor skills difficulties, gross motor skills difficulties, coordination difficulties - Developmental Coordination Disorder (DCD)
Social communication difficulties - Autism Spectrum Disorder (ASD)
Occupation report was requested at NA2 and request was followed up on 4 separate occasions. NHS OT reports from March 2023 and July 2023 are available. Provision recommendation from private therapist who sees him at school was submitted to ECHNA and acknowledged. Community pediatrician report refers to Occupational therapy need, neurologist report refers to occupational therapy need, Educational psychologist report refers to occupational therapy need and meeting with the private occupational therapist. School submission refers to occupational therapy need, intervention provided by private OT and daily OT activities with a TA at school. Section B states DCD and fine motor difficulties. Other sections in ECHP refer to fine motor difficulties but section E and Section F are empty for Sensory and / or physical: maintaining good health, with outcomes listed as “not stated” and also for Independence and preparation for adulthood.
Where do we stand with this and what should our next be along with notifying that we do not accept the draft?
Thank you.
A: SenseCheck
- 1 Yes
- 0 No
- 0 Other
- 22 Nov 2023
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Yes
Simple
ET – there seem to be two issues. The first of these concerns the non-provision of an NA2 report, which I seem to recall is the name given by the NHS to reports that are a submission to an EHC needs assessment or FtT appeal hearing
r.6 The Special Educational Needs and Disability Regulations 2014
addresses what information and advice to be obtained for EHC Needs Assessments. You should read this yourself, but to start you off, I have provided you with a rough summary:
In instances where the local authority initiates an Education, Health, and Care (EHC) needs assessment for a child or young person, a comprehensive protocol is mandated. This entails soliciting advice and information on the child or young person’s needs, required provision, and envisaged outcomes. The array of requisite inputs ranges from parental input and educational insights to medical, psychological, and social care perspectives.
The procedural intricacies involve securing advice from the child's parent or the young person, educational advice from relevant authorities, medical advice from a designated healthcare professional, psychological advice from an educational psychologist, and advice on social care. Additional inputs are sought from diverse sources deemed pertinent by the local authority, addressing aspects such as preparation for adulthood beyond year 9.
Should the child or young person exhibit hearing or visual impairment, consultation with qualified specialists is imperative. The local authority's pursuit of advice necessitates the provision of relevant documentation, including representations from the child's parent or the young person and supporting evidence. Importantly, redundancy is mitigated by refraining from seeking advice previously provided and deemed sufficient for the EHC needs assessment.
Notwithstanding an OT report was not provided, you do have NHS OT reports from March 2023 and July 2023. One course of action you may wish to consider is reminding the LA what has happened and say that the said report/s from earlier in the year can be used. Further, the statutory instrument quoted earlier seems to allow for this as it says:
4) The local authority must not seek any of the advice referred to in paragraphs (1)(b) to (h) if such advice has previously been provided for any purpose and the person providing that advice, the local authority and the child’s parent or the young person are satisfied that it is sufficient for the purposes of an EHC needs assessment.
and it is reasonable to assume that a report subsequent to July 2023 was not provided by the NHS as these existing reports were assumed to be sufficient. In any event, if there is an error, this must lie at the door of the LA as they are responsible for coordinating the collation of the necessary evidence, and it is not appropriate to put things on hold while a report is obtained, as a statutory deadline for the completion of the process exists.
It is also important to stress that the ‘missing report’ is only one part of the body of evidence that should be used to draft the EHCp. All reports should be used, and, on the face of it, should be given equal weight, conditional on them being from a suitably qualified and experienced individual and their contents are relevant.
The other issue is whether you accept the draft EHCp or not. You may wish to make this decision based on whether the evidence submitted during the needs assessment has been accurately represented in the ‘draft EHCp’. There is scope for negotiating with the LA, but you may wish to time limit this in favour of finalising the process and continuing to pursue any disagreements in mediation or in the FtT if either you do not choose to pursue mediation, or it has not produced a satisfactory outcome.
I hope this helps, and I look forward to reading any perspectives others may have.
Sean Kennedy
Talem Law
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