Transition to EHCP - does the LA have to conduct a full assessment of needs?

Yesterday, 26 March 2015, we attended Jordan’s annual Special Educational Needs Law and Practice conference.

This conference is always well attended by professionals from local authorities and law firms.

Obviously, the main discussion point was the Children and Families Act 2014. We were particularly concerned that during the day a number of local authority representatives argued that they had no duty to conduct an EHC needs assessment to move from Statements (SEN), or Learning, Difficulty Assessments to Education, Health and Care Plans (EHCP).

We explain what an EHC needs assessment is here.

We set out the law below and invite comments.

The law

There is nothing in the Children and Families Act 2014 about how children will move from SSENs to EHCPs.

The Children and Families Act 2014 (Transitional and Saving Provisions) (No 2) Order 2014, as amended, sets out the transition process:

• Article 12 – the local authority must secure an EHC needs assessment for children with a SSEN, moving to a post-16 institution in 2015. The assessment must be concluded by 31 May 2015.

• Article 13 – the local authority must consider whether to conduct an EHC needs assessment for children with a SSEN who are in Year 6 either from September 2015 or September 2016.

• Article 14 – Between 2015 and 2018, the local authority must make sure and EHC needs assessment is conducted for a child with a SSEN when they move to a new phase of education or moves into Year 9 of their education.

• Article 17 – for any child not covered by Articles 12, 13 or 14, the local authority must ensure that an EHC needs assessment is conducted as soon as possible and certainly as quickly as possible after 1 April 2015.

Combined, these Articles set out triggering events for transition to EHCPs. For each transition, the local authority must secure an EHC needs assessment.

Guidance

The current applicable guidance is Transition to the new 0 to 25 special educational needs and disability system – Departmental advice for local authorities and their partners.

This advice deals specifically with the content of the Order detailed above.

The crucial elements of the advice are as follows (any bold text is as stated in the advice):

• Para 1.8 – By 1 April 2018, local authorities must have transferred all children and young people with statements of SEN to the new SEN and disability system following a ‘transfer review’ – that is an EHC needs assessment in accordance with the Special Educational Needs and Disability Regulations 2014.

• Para 5.6 – local authority should develop and publish a local transition plan, which should include … details of the ‘transfer review’ (EHC Needs Assessment) process.

• Para 6.1 – To ensure that EHC plans are person-centred and focused on outcomes, an EHC plan must only be issued following a ‘transfer review’ – an EHC needs assessment.

• Para 6.3 – To transfer a child or young person from a statement of SEN to an EHC plan, a local authority must undertake a ‘transfer review’. This will require them to undertake an EHC needs assessment under section 36 of the Children and Families Act 2104.

• Para 6.5 – To conduct a ‘transfer review’, the local authority must undertake an EHC needs assessment in accordance with Part 5 of The Children and Families Act 2014 (Transitional and Saving Provisions) (No.2) Order 2014.

Does the local authority have to conduct an EHC needs assessment to transition to EHCP?

Yes.

Parents should be aware that the only situation where a local authority must not seek advice from any particular expert is if the local authority, parent and the relevant expert all agree it is not necessary (e.g. a recent report has already been written).

This is not a general exception applicable to the whole EHC needs assessment. It is an exception to specific pieces of advice within the assessment. It could, however, mean that parents can agree that no new advice at all is needed.

The key point is that the local authority has a duty to carry out an EHC needs assessment unless the expert, the local authority and parents agree not to. The decision cannot be taken unilaterally. All three must agree that an assessment is not necessary. . In order to make an informed decision it follows, therefore, that Local authorities must tell parents of their duty and set out the advice they will be seeking.

A local authority should also ask parents to consider whether other new advice is needed. In our view, parents’ agreement not to seek any particular advice can only be valid if it is made on the basis of informed consent. Also, parents not specifically asking for assessments cannot equate to agreement if the local authority has not informed them of their rights.

Who should actually complete the EHC needs assessment?

Our factsheets sets out the advice that should be obtained to complete an EHC needs assessment.

The duty on local authorities is to “secure” an EHC needs assessment. There is some suggestion that the word “secure” means that the local authority does not have to complete the assessment itself. Some local authorities are requiring schools (with or without additional payment) to complete the EHC needs assessments.

Within the Education Act 1996 the wording was different – that specifically required local authorities to “make” an assessment.

In our view, the difference in wording is due to the advice that has to be sought. The EHC needs assessment involves health services as well as those services directly employed by the local authority. As a result, the wording of the Children and Families Act 2014 cannot be that the local authority “make” the EHC needs assessment because it cannot assess health, it has to send that out externally.

However, the duty to arrange the assessment, instruct experts, pay them and collate all advice back must still rest with the local authority. In our view, this duty cannot be delegated.

Conclusion

It is estimated that the cost of an EHC needs assessment is around £5,000. Some local authorities each have up to 7,000 children with a SSEN. That is a cost of £35 million. Availability of experts also makes the timescales almost impossible.

However, the law is clear. Whilst we understand the practical difficulties, we were genuinely shocked that more than one local authority believed that they did not have a duty to secure an EHC needs assessment to move to EHCP.

The Children and Families Act requires local authorities to work with parents. Rather than denying legal obligations, it seems to us that if local authorities accepted their obligations but explained the difficulty parents may be more sympathetic, or at least less angered.

If local authorities took an open approach, the DfE would have to review the situation. This could result in extension of time and/or funding. That seems to us a far preferable solution than starting the new system on the wrong footing.

We would be very interested to hear from local authorities on this and invite comments below.