Legal Question

Q: I have been in touch with my local authority seeking an Education, Health and Care Plan assessment for my child, but they say their eligibility criteria for EHCP assessments do not include my child’s impairment and even if it did we would have to wait until April 2018 for the start of the new financial year because of limited resources and budget cuts. Can the LA exclude particular impairments/health conditions in its assessment criteria and can they delay an assessment using lack of resources as an excuse?

A: The local authority must conduct an Education Health and Care Needs Assessment (EHCNA) if they consider that a child has or may have special educational needs and it may be necessary for special educational provision to be made via an EHC plan. The Children and Families Act 2014 sets out when a child has or may have special educational needs and they would likely fall within the definition if

1. they have a significantly greater difficulty in learning in comparison to the majority of other children who are of their age and or
2. they have a disability and that causes difficulties for them in using the facilities that are normally provided for their age within mainstream schools.

The local authority cannot exclude particular impairments or conditions and must consider each case on its individual merits. To have a policy which places limits and restrictions on those who can be assessed for an EHC plan is likely to be unlawful. When considering a request for an EHCNA the LA must follow what the law says as must the Tribunal on an appeal.

The local authority should usually respond to an EHCNA request, to say whether or not they are going to proceed with an assessment, within a maximum of six weeks from receiving the request. If the local authority determines that an EHCNA is needed then they must complete the assessment in a timely manner. If following the EHCNA the local authority decides not to issue an EHC plan they must inform the parent within a maximum of sixteen weeks from the date on which the EHCNA request is received. If an EHC plan is going to be issued the final version must be issued within a maximum of twenty weeks from receiving the EHCNA request. There are certain factors that could delay the EHCNA process. These are set out in law and include; appointments being missed, the child being away from the area for four weeks or more, exceptional personal circumstances affecting the child and or parents, and educational setting being closed for four weeks or more. The issue of a lack of resources is not one of them and so the local authority cannot rely on this as an excuse.

If you make a request for an EHCNA and the local authority refuses to conduct one then you can engage in mediation with the local authority and or make an appeal to the SEND Tribunal.

Thomas Mitchell

Thomas Mitchell is a solicitor with Simpson Millar and specialises in Education and Community Care law. www.simpsonmillar.co.uk