It is the law that children and young people with special educational needs and disabilities (‘SEND’) must be given appropriate support in schools. This support should be commensurate to their learning and/or physical difficulties. This gives families and children/young people greater control and stability to learn. In an ideal world, the needs of vulnerable children/young people should always be met by Local Authorities however, this is not always the case. Certain children/young people will find themselves disadvantaged in an already very difficult and emotional situation.
Following inception of the Children’s and Families Act 2014, the Education, Health and Care Needs Assessment (‘the Assessment’) now involves an integrated one stop assessment process between the education, health and social care teams. Once an Education Health and Care Plan (‘EHCP’) is issued, the Local Authority has a non-delegable duty to ensure that the child/young person’s needs are met in full. The Local Authority is also financially responsible for the EHCP to include paying for the child/young person to attend an independent special school should it be named in the EHCP.
The EHCP is a legally binding document between the Local Authority and the child/young person. Anyone with learning or physical difficulties from the age of 0 to 25 is potentially eligible for an EHCP. EHCPs are generally given to children/young people whose needs are severe and complex and cannot be catered for through the school’s own budget and for whom assistance from outside agencies is required.
The Assessment process and EHCPs
- In order to obtain an EHCP, a parent or guardian of the child, young person if over 16 or the school must first request the Assessment by writing to the Local Authority.
- The Local Authority must consider whether to carry out an Assessment within 6 weeks from the date of the request however the entire process can take up to 20 weeks from the date of the request to the point of receiving the EHCP.
- It is important to collate as much evidence as you can to support the Assessment process. This may include evidence from the school teachers and independent experts.
- If the Local Authority refuses to carry out the Assessment, an appeal can be made to the First Tier Tribunal (Special Educational Needs and Disability) (‘SENDIST’).
- If the Local Authority issues an EHCP and either the provision or named school is in dispute, the parent/young person can appeal to SEND.
Appealing to SEND
The appeal process can be very stressful and it is advisable to seek some legal advice and guidance before you embark upon this journey. A young person or parent/guardian of a child can appeal to SENDIST within 2 months from the date of the negative decision. This can include:
- the Local Authority refusing to carry out the Assessment,
- the Local Authority refusing to provide an EHCP following the Assessment,
- obtaining an EHCP with inadequate support to adequately reflect the child/young person’s current needs,
- refusing to reassess the child/young person’s needs and EHCP if it is more than 6 months old,
- refusing to change an existing EHCP following an annual review,
- disagreeing with the name of the school/or there is no named school in the EHCP.
In most cases, you will be required to obtain a mediation certificate within 2 months from the date of the appealable decision. Once the certificate is obtained, you will have a further 30 days within which to appeal, from the date of the certificate. You do not have to go through with the mediation itself unless you believe it will benefit your case.
- Anita Chopra has a track record of settling the majority of her cases before they reach Tribunal saving the client’s time, costs and emotional distress. As a result, she has had the privilege of changing the lives of many children and young people.
- We have access to specialist Barristers who can be instructed to provide advice on complex matters and attend hearings with clients.
- We have access to independent experts who can be instructed to provide invaluable evidence during this process.
- We can assist the client throughout the entire process from requesting the Assessment through to an appeal should this be necessary.
- We are fully equipped to assist with drafting documents, liaising with the Local Authority and advising clients resulting in, more often than not, a successful outcome.
- The team at NBB Law are caring and highly knowledgeable. We are ready to support and assist you in full confidence.
For more information on any aspect related to your child or young person’s learning or physical disability, please contact the team on 0121 726 9999 or Contact us
