Q:

During the appeal process, If the LA has failed to obtain information about a child's mental health, can provision, in the form of an assessment be added into the Working Document?

We are currently appealing Section B and F and we have my son's Annual Review this week, where I'm hoping to agree as much as possible with the LA. My son is autistic and has extreme anxiety. Our GP referrals to 3 different CAMHS services have all been rejected and the LA has not obtained any information from professionals about my son's mental health, so whilst I have reports from Ed Psych, SALT, OT which all highlight anxiety as a need, we have no specific recommendations for provision outside of school adjustments. I have now submitted a SEND7 asking SENDIST to provide directions in this matter, however I was wondering if I can suggest provision within the Working Document - such as an assessment from a mental health professional?

Thanks!

SH

Sofia Huguet
10 Dec 2024

A: SenseCheck

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  • 10 Dec 2024
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    Ms Huguet,

    The simple answer is yes, but a fuller explanation may assist you in navigating this matter. This area can be fraught with difficulty, unnecessarily so in my opinion.There are a few elements to the answer, but I hope it will make sense when you read through it. In any case, I will try to break it down to make it easier to digest. I will refer to the Noddy Guide, which is helpful in this area.

    If a child experiences anxiety, so the first thing to decide is whether this amounts to a special educational need. The Noddy Guide provides some assistance here:

    07.01 Are there particular rules about whether a child or young person has special educational needs? 

    07.03 Can health or social care needs be special educational needs?

    If we define anxiety as an unease or worry about uncertain or stressful situations, it is likely that, for a child, this will constitute a special educational need. Typically, it would be classified under social, emotional, and mental health, which is one of the four categories of special educational needs. Expert evidence would assist here, typically from a clinical psychologist, educational psychologist (which in your case you seem to have), a psychiatrist or other relevant professional. Note it is always open to a parent or young person to procure this evidence independently for the purposes of an appeal to the FtT.

    Note the following from the Noddy Guide:

    07.04 Does the cause of a child or young person’s SEN need to be known?

    If it is a special educational need, then it follows that special educational provision may be necessary to meet the need. See the following from the Noddy Guide:

    07.05 Does Section F have to tie in with Section B?

    This clarifies that each educational need in Section B must be met by special educational provision in Section F.

    So, what can count as special educational provision? See the following:

     Q: 08.02 Is there a rule specifying what counts as SEP? 

    In essence, what is necessary to educate or train a child or young person can be clarified as special educational provision, even if traditionally it was seen as health or social care provision. See the following, which explains more of the nuance in this area:

    08.06 Can health or social care provision also be educational provision?

     08.08 Can psychiatric input be SEP? 

    Hence, there is a clear link between Section B (special educational needs) and Section F (special educational provision).

    That said, in the example given, the anxiety is recognised, but it seems that is has not been possible to obtain any additional expert evidence as the local authority has not acted in this regard, and the NHS seems unresponsive. In the context of an EHCp, expert evidence is very important when describing needs and the provision needed to meet the need. 

    I suggest the following broad possibilities in response to the example given:

    a) Raise the issue of anxiety at a Case Management Discussion (essentially a mini-hearing to discuss directions) and ask the Tribunal to order the procurement of expert evidence from a relevant professional who can describe the anxiety, its effects, and what provision is required. Presumably, an applicant would argue that anxiety is a key issue and it would be in the interests of justice to make an order to procure relevant evidence. Referencing any existing professional evidence which mentions anxiety would likely assist with any application.  Note that this new evidence does not have to be procured from CAMHS, as a relevant independent professional could fulfil this role. This new evidence would, if it were available before the hearing, inform the amendment of the working document. I suspect such requests are not common, but I have successfully made them myself in the past in relation to matters similar to those given in the example. That said, when the matter was raised at a Case Management Discussion (which can be listed in response to an RFC), the LA did engage, which made things easier.

    b) Repeat the above, but at the hearing, ask the Tribunal to make the order to obtain this evidence and make any consequential amendments to the EHC plan. That said, it would perhaps be better to have raised the issue well before the hearing. 

    c) An alternative could be to - if this has not already been done - extend the grounds of an appeal to include the healthcare components of an EHC plan. This would be done by way of an RFC, along with reasons for doing so. In the example given, the motivation would be to address the issue of anxiety, which has thus far been frustrated. This, of course, could done by submitting a RFC, SEND7 form. This would directly engage the ICB (this is an Integrated Care Board which is a relatively new structure in the NHS in England, which replaced the previous Clinical Commissioning Groups (CCGs) and is part of the broader concept of Integrated Care Systems). and they would need to respond to any proposed amendments to the working document. Note descriptions of needs and associated recommendations from a NHS professional can still be argued to be educational for the reasons given above. 

    More about the National Trial can be found here:

    12.26 Can I appeal to the FTT about health or social care provision when I appeal the education provision?  

    Conclusion

    The above may seem a little involved, but the key thing to remember is that the FTT has wide powers which can be used to ensure effective case management. Further they can order or make strong recommendations about the health, educational, and social care components of an EHC plan. If a parent or young person is facing frustration in their ability to prepare effectively for their appeal, they can seek reasonable assistance from the Tribunal with any relevant issue. This is usually done by making a Request for Change or can be done in the Case Management Form (SEND45), which must be submitted closer to the hearing. Finally, it would, of course, likely be helpful if you could find someone locally who could advise you, if needed. 

    I hope this is of assistance and please do not hesitate to ask any further questions if you have them.

    Sean Kennedy. 

    Sean Kennedy

    Sean Kennedy
    Talem Law