Don’t let the timetable undermine the process

When you apply for an Education Health and Care Needs Assessment (EHC NA), there is a strict statutory process that applies.

Within 6 weeks from the date of the request being received by the Local Authority (LA), they must decide whether or not they will undertake an assessment.

This is an appealable decision, so the LA needs to put its decision in writing.  If they miss the deadline, you have grounds for a complaint and could bring a judicial review.  I have known LAs contact applicants at this stage and let them know there isn’t sufficient evidence, and ask them if they want to withdraw the application and submit it a little later when there is more evidence.  The answer to this is NO, emphatically NO.  The LA needs to follow the process.  Either review the application properly or formally refuse to do an assessment.

If the LA agrees to undertake an assessment and subsequently decides NOT to issue a plan, they must do this within a further 10 weeks (16 weeks elapsed time).  During this time they will seek advice from a range of professionals, including, a requirement to seek Educational Psychology (EP) advice.  These professionals are required to respond within 6 weeks. 

The local authority must give to those providing advice copies of any representations made by the child’s parent or the young person, and any evidence submitted by or at the request of the child’s parent or the young person.

So what happens if the relevant advice and most specifically the EP advice is not ready within the timeframe?  Technically the applicant would then have grounds to complain and potentially bring a judicial review. 

Pragmatically, what is reasonable?  It is rarely reasonable for the LA to steam ahead and stick to the timescales, and make a decision without having received the right advice.  In such situations, the LA is in a difficult position.  If they delay and wait for the advice, they are at risk of missing their statutory deadlines, and if they press ahead, their decision may be found to be at fault as it was made without the right information.  For the applicant, a delay isn’t great either.  Applications tend to fall within a binary status – either inside the timelines or outside the timelines.  There is little reporting of how long after the deadline they complete, so once an application has missed the deadline, there is little motivation by the LA to get it back on track, and these applications often get put to the bottom of the priority list so that others can stay within the statutory timescales.

So, should you find yourself in this position what can you do?  If you haven’t heard from the EP service within 2 weeks of the decision to undertake an assessment, start to escalate things.  It will take an EP several weeks to make an appointment and then write the report, and after 2 weeks if you don’t have an appointment in the diary the warning bells are ringing.

If the EP report is going to arrive after the 6-week deadline, work with your case officer to establish the latest panel date that they can hit, and still stick to the 16-week deadline.  This is where your project management skills become most important.

If you receive a notification that the LA will write a plan, this should follow almost immediately.  You then have 15 days to provide your comments.  Many LAs will send the draft plan out to local schools for consultation, which helps reduce the timescales, however, it doesn’t help if the draft plan is poorly written.

It also doesn’t give much time for you to be looking at schools and visiting them.  Many oversubscribed schools won’t even entertain a visit if you don’t already have an EHCP you can send them.

It’s often best to do as much research as you can during the previous 16 weeks when you are often sitting and ‘waiting’ for the process to happen.  Use this time to research school options.  Make sure that you look at a range of schools, mainstream, specialist and independent mainstream are all options, depending upon your situation.  Look at websites, speak to other parents and if you can visit do so.  Understanding the full range of schools, including those that are local to you and aren’t necessarily suitable is crucial.

The LA will ask you for your parental preference, often at the point they issue the draft plan, which means time is very tight for them to consult with your preferred school.  Schools also have 15 days to respond to a formal consultation.

So, 15 days for parental comments + 15 days for school consultation = 30 days.  This is longer than 4 weeks and as the whole process must complete within 20 weeks, somewhere there has to be a compromise.

The compromise may be that the 10-week period is reduced to a shorter time.  This can risk the quality of evidence being available.  Make sure you know the timeframe the LA is working to.

A second compromise is that the parent comments and school consultations are run in parallel, which can mean that consultation is made on a plan that isn’t as accurate as it might be, and can cause some schools to say they can’t meet needs, when in fact they could, or vice-versa.

So, hopefully, the timeframes can help to keep things moving, however, if the quality of the input will suffer as a result, the timeframes may need to be stretched.  Trying to keep within the overall 20 weeks however is important, or you might risk being de-prioritised altogether.