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Kidz in the Middle took place yesterday, 19 March 2015. Our head of SEN at Boyes Turner, Laxmi Patel, gave a talk to a packed room and we met dozens of parents and professionals keen to discuss special educational needs reforms.
Our thanks go to Disabled Living (Kidz Exhibitions) for arranging the event.
During the day, we noticed a number of common questions and issues being raised (click on the phrase to see our thoughts):
References below are to the SEND Code of practice in use as of 20 March 2015. Please note that from 1 April 2015 the 2015 version of the SEND Code of Practice will be in use.
Q. Is it right that local authorities are looking to occupational therapists / speech and language therapists to complete ‘Health’ sections of Education, Health and Care Plans?
A. Speech and language therapy has been specifically highlighted within new statutory guidance as being a special education provision, not a health provision.
Special education provision is defined within the Children and Families Act 2014 as being any form of education or training which is different from that which would be typically available in a mainstream school. “Training” is not further defined, however, it will include training to enable the development of a skill, such as communication or control of muscles (occupational therapy).
We therefore would suggest that occupational therapists and speech and language therapists should provide advice to local authorities making it clear that their advice is ‘education’ not ‘health’.
Q. Every local authority has a different format for their Education, Health and Care Plan. Do experts need to write their reports in a different way to accommodate the different layouts?
A. In our view, no.
The role of the expert is not to write the content of the Education, Health and Care Plan (EHCP). Most local authorities have SEN teams and specialist EHCP writers for that.
Expert reports should focus on assessing what a child can do and what they struggle with, the reasons for those difficulties, how those difficulties affect their ability to access education and what programmes of support and other measures are required to reduce the impact of the difficulties.
In our opinion, setting out a report so that the distinct issues and questions are clear, but creating an easy to follow flow between each area is the best approach.
Q. Can a local authority refuse to include an independent school / therapy group / support group in their Local Offer?
An important requirement of the Local Offer is that it is comprehensive. It should detail all support available in education, health and social care from 0 – 25 years. It should also detail how to access that support, any applicable eligibility criteria and where to obtain advice about appeals etc.
If an independent school, support service, therapy group or any form of service for children with special educational needs makes itself known to the local authority, we can see no reason for a refusal to include.
The SEND Code of Practice from paragraphs 4.14 – 4.16 requires cooperation between local authorities and proprietors of independent schools, non-maintained schools and other educational settings. This duty includes incorporating each service in the Local Offer.
We are not aware of any guidance which sets out what a local authority must not include within the Local Offer. We would speculate that if a service is not related to supporting children, special educational needs and/or education a local authority may refuse to include it. Further anything which is discriminatory, offensive or illegal would obviously not be included within the Local Offer.
If a professional or school is facing difficulties being names in the Local Offer it should first make a formal complaint with the local authority. If that prompts no satisfactory response, a complaint to the Department for Education and/or Local Government Ombudsman should also be explored.
Q. Local authorities seem to be operating a blanket policy that an educational psychologist assessment, supporting the need for an Education, Health and Care (EHC) needs assessment, must be obtained before the assessment will be completed, is this right?
A. The SEND Code of Practice makes it very clear that local authorities must not operate blanket polices (paragraphs 9.16 and 9.51).
The Children and Families Act 2014 sets out the legal test for an EHC assessment. There are two questions to the test: First, does the child have or may have special educational needs? Second, does it seem likely that special educational provision may be required in accordance with an Education, Health and Care Plan?
This requires consideration of the child’s current performance, difficulties they are having in school and whether there is evidence that those difficulties can be catered for within a mainstream school without additional support.
It is important to recognise that an educational psychologist’s assessment is part of the EHC needs assessment. For a local authority to require an educational psychologist report before the EHC needs assessment is to require part of the assessment to be completed before it has even been started.
Whilst it may make it easier for a local authority to apply the test with the benefit of an educational psychologist assessment, the requirement is completely unlawful.
Q.What is the process for asking for an assessment? Some local authorities are requiring very detailed, and complicated, forms to be submitted.
A. We are aware that some local authorities have prepared detailed and complicated forms they ask to be completed in order to request an EHC needs assessment.
Parents and/or schools are under no obligation at all to complete these forms.
A request for an EHC needs assessment can be made in any format – letter, telephone call, email. Even a text message could amount to a request.
We would highlight, however, that the more information that is sent in to support an application for an EHC needs assessment, the more likely it is that the local authority will agree to conduct the assessment. If evidence is available to show (a) that the child has special educational needs ; and (b) that their needs require support beyond that available in a typical mainstream school, that evidence should be collected and presented.
Helpful evidence can be parts of school records showing difficulties with academic performance, or particular areas of the curriculum, letters from medical professionals, letters from playgroup support workers and any information about social and communication skills and early years development.
I am so happy at the outcome, I don't think we would have had such a comprehensive service from any other law firm, and you took the worry away...I do not regret a single second of the whole process, apart from the bit before you got involved.
James' mother, Boyes Turner client
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