SEND and the legal position of LEAs

A week last Monday I attended a training day on the legal requirements of SEND hosted by NAHT in Manchester and delivered by Rona Tutt, former President, and Jane McConnell, barrister and founder of IPSEA, the charity which trains LEAs and gives legal advice to parents.

Following the training I had a conversation with a manager at our highest echelons of LEA and was asked to put the information in an email. I reproduce this below in full:

Hello A……!

Please find email re EP visits as requested!

Last Monday I attended training……..covering the legal aspects underpinning the new Code of Practice and the provision of EHC Plans.

The message was very clear; namely there is no legal requirement to provide an EP (educational psychologist) report in support of a request for an EHC Plan. The legal test s.36(8) states that….

‘The LA must secure an EHC needs assessment for the child ……if the authority is of the opinion that……the child has or may have SEN …..and it may be necessary for SEP to be made for the child….in accordance with an EHC Plan.’

I understand that a referral to an EP forms part of the criteria requested by the LEA to show that a school has made every effort to find out what forms part or all of the child’s SEN; however the LEA is now subverting those processes by refusing to let EPs engage with schools once the child is on dual placement with XY or is permanently excluded.

Many children are coming to us with undiagnosed needs and some are unable to access further mainstream provision. XY has been informed that due to pressure on County EPs to undertake conversions (statements to EHC Plans), we will have to buy in private providers. However, once an EHC Plan is underway, then the county EP will take over!

The current cost of a private EP report is around £500; the child is not known to that person and the provider is not necessarily telling us anything we do not already know…..the fact that a child is with us means that they are accessing an intervention to meet their needs, therefore the County assessment is the most appropriate. Taxpayers’ money is being used in a box ticking exercise which is not contributing to an assessment of the child’s SEN. More worryingly, dual registered children are now also being denied the services of the school EP and at least one school who has bought in a private provider has been turned down for an assessment on the grounds the paperwork was not strong enough! The person in question was employed by County commissioned services!

There is absolutely no guarantee that a private EP report will be accepted by the LEA, therefore we are being asked to gamble £500 per report per child! At XY we have several children who currently need assessing so the overall cost will run into thousands! This money would be better spent on specialist support for the child eg therapeutic teaching, counselling, dyslexia assessments.

On the council website it states that the policy for identification can be overridden if needed and I feel this is warranted under the legal test. Jane McConnell is working closely with the DfE to iron out irregularities as it is recognised that few authorities have the necessary legal training; Jane is a barrister who supports parents with legal advice through her IPSEA charity.

I hope you will pass this information on to the relevant authorities.

Since I penned this email, a meeting of PRUs and County has been convened and my HT states that ‘ the cat is well and truly among the pigeons!’

Our PRUs feel that we are being asked to do something inappropriate when Jane stressed that the legal test trumps all! If this is not resolved to our satisfaction we will be asking Jane for help and support in sorting this situation out!

Meanwhile, for other schools , please check on your legal obligations and don’t fall for the smoke and mirrors of county policy!

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