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• 14 Oct 2024

• Other

  Other

  Can't answer yes or no.:

  This situation isn't typical. But as @Sean Kennedy says - it's not certainly not unique. 

  Yes - it could be permissable. It probably depends why.

  I'm not sure who paid for the EP report.

  If the LA chose and paid for the report, it's weird that they'd not listen to the expert that they chose. 

  If you chose the EP, maybe the decision makers in the LA don't agree. There's a bunch of possibilities for this e.g: 

  1. The LA feel that the needs described in the EP report seem inflated so they're not using the report at this time. 
  2. The LA know that, if they write it the needs that are described, they end up with a dead end (e.g. because the provision that follows doesn't exist locally).
  3. The LA decision makers might not trust the EP you chose. EPs are good people who've all chosen a noble profession - but they aren't all created equal. There's some who believe in mainstream more than others. There's some who expect more than others from mainstream SEN Support. It maybe that the EP you chose, for example, nearly always recommends special school. The LA decision makers might have a view of how much weight to give the EP's work. The law says they have to consider the EP advice. It doesn't say the LA have to agree with it. They may have in mind to send in their own expert to take a second look (but just haven't told you).
  4. The LA might have overlooked it and this is a straightforward (albeit worrying) admin error.

  Whatever the reasons, I'd pick up the phone. Ring your caseworker and explain your confusion "The draft doesn't include anything from the EP report. I'm not sure why? Please could you talk me through it?"

  Depending on what the response is, you might want to ask:

  • “So, what happens from here?”
  • “Who's responsible for that next step?”
  • “What's a reasonable timeframe for that next step?”

  You might not get through on the phone first time. But this one's probably worth a chat first.

  None of this detracts from Sean's very valid answer. This answer just suggests actions to try before going down a more legal route.

  

  Aaron King
  9000 Lives SEND Consultancy

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• 13 Oct 2024

• Other

  Simple

  Too fact specific, I can't generalise.:

  Harriett P,

  I regret to say that this is not the first time I have encountered such a situation. However, your question relates to what can be done.

  In your favour are the following points:

   

  1.It appears that you had some sort of ‘agreement’ with the LA to use the contents of the EP's report, who is clearly a relevant expert.

   

  2. Regulation 6 of The Special Educational Needs and Disability Regulations 2014 clearly states that during an EHC needs assessment, under Reg. 6(d), “psychological advice and information from an educational psychologist” must be obtained. 

  Reg 6 The Special Educational Needs and Disability Regulations 2014

  3. Additionally, Reg. 6(h) states that “advice and information from any person the child's parent or young person reasonably requests that the local authority seek advice from” must be considered – which is precisely what you did by commissioning the report from the EP.

  You could draw all this to the LA’s attention and possibly also highlight that, by ignoring relevant evidence, the draft EHCP does not fully capture your child's SEN and the special educational provision they require. I say this without knowing to what extent the report has been ignored, whether in whole or in part.

  Bringing this to the LA’s attention could involve using their formal complaints procedure, depending on the facts of the situation.

  The LA may well be agreeable and choose to review the draft and issue a revised version. That said, prolonged discussions over this matter - which may or may not be fruitful - would delay the EHCp being issued, which, in turn, would delay your ability to seek assistance from the First-tier Tribunal (FtT) if required. It is a credible argument to suggest that the appropriate way to challenge disagreements over the contents of an EHCP would be through mediation and/or an appeal to the FtT.

  I would encourage you to refer to the Noddy Guide to become more familiar with the processes, should you believe this would be helpful. The guide is available here:

  Can I download the Noddy 'No-nonsense' Guide as a pdf?

  I hope this is helpful, and I hope others will contribute by providing their own suggestions.  

  

  Sean Kennedy
  Talem Law

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