Failing within sight of the summit
Many years ago, as a venture scout on a visit to the Lake District, I was in a group of four who spent a day walking up a challenging hill. My preference has always been cycling over walking and so this particular outing wasn't one that filled me with great enjoyment. The weather was warm and it was a lovely day and I was in the company of three good friends, all of whom were ardent walkers. As we neared the summit I found myself exhausted. I decided to sit, listen to some music and wait until my companions completed their walk to the summit and returned back down to me.
The disbelief expressed by my companions was profound. They couldn't quite believe that I could have walked all that way, and then decided not to make it to the top.
When a Local Authority (LA) makes the decision not to issue an EHCP after conducting a needs assessement, it can be a similar feeling for those families. After 16 weeks of presenting evidence, assessments and information gathering, it feels like they have failed to reach the summit. And unlike me on that walk - they want to get there, come what may.
So what are the lawful reasons for a LA to not issue a plan?
If the special educational provision (SEP) required can be met from the resources generally available in a mainstream school.
It is important to note this means mainstream schools nationally, and not necessarily what is available in your local area. Let's say your child needs a laptop to complete work. If all children in the local authority receive a laptop, that doesn't necessarily mean that this would be considered to be generally available, as this is not the case nationally. This is a fundamental change in the legislation introduced in the Children and Families Act 2014.
However, LAs may give other reasons for not writing a plan, such as:
There are no recommendations above what is already being provided from within mainstream resources.
LAs will claim they can only act on recommendations. However, the SEN Code of Practice (CoP) Section 9.55 states:
"Where, despite appropriate assessment and provision, the child or young person is not progressing, or not progressing sufficiently well the local authority should consider what further provision may be needed."
In other words, it is up to the Local Authority to look for solutions and consider other provision that may be needed and hasn't been identified during the assessment process.
Another reason why no new recommendations maybe been made is that the assessment process may have been inadequate. It is incumbent on the LA to seek Educational Psychology (EP) advice, Medical advice and any other advice reasonably requested by the child or their parents.
Unfortunately, a national shortage of EPs means that all too often the EP advice is either missing or a paper-based review of existing evidence, rather than a proper assessment. With long waiting lists for NHS medical services, often medical advice takes the form of the most recent clinic letter or a 'not known to service' letter, which is equally unhelpful.
If you are in the situation where a decision not to write a plan has been made, and you want to appeal, your best approach is to demonstrate that:
the assessment wasn't adequate and insufficient advice was received; and/or
the provision required falls beyond the recommendations and is beyond what is normally available in mainstream schools nationally; and/or
the recommended provision is beyond what is normally available in mainstream schools nationally.
If a school requires a funding top-up (High Needs Funding) to secure the provision, it is a good indicator that the provision is not available within the normal resources of a mainstream school.
