CHAPTER TWO – ‘REFUSAL TO ASSESS’ OR ‘RE-ASSESS’ APPEALS
Section 51 of the Children and Families Act 2014 Part 3 affords a right to a child’s parent or a young person (subject to mediation) to appeal to the First-tier Tribunal against a decision of a local authority not to secure an EHC needs assessment for the child or young person (section 51(2)(a)) or not to secure a re-assessment of the needs of the child or young person under section 44 following a request to do so (section 51(2)(d)).
The key provisions under the 2014 act relating to EHC needs assessments and re-assessments are section 36 (EHC needs assessments) and 44 (re-assessments). The key provisions under the Special Educational Needs and Disability Regulations 2014 are regulations 3 to 10 and 24 to 27. Paragraphs 9.8 to 5.52 of the SEND Code of Practice deal with EHC needs assessments and paragraphs 9.186 to 9.192 deal with re-assessments.
EHC needs assessments
An “EHC needs assessment” is an assessment of the educational, health care and social care needs of a child or young person: subsection 36(2) of the 2014 Act.
Regulation 6 of the 2014 Regulations sets out the information and advice to be obtained in EHC Needs Assessments. The local authority must gather advice and information from the child’s parent or the young person and from relevant professionals about the child or young person’s education, health and care needs, desired outcomes, and provision that may be required. The types of advice and information that the LA must seek for the assessment comprises: (a) advice and information from the child’s parent or the young person; (b) educational advice and information from the head teacher or principal of the school or post-16 or other institution that the child or young person is attending (where this is not available, the LA must seek advice from a person with experience of teaching children or young people with SEN or knowledge of the provision which may be called for to meet those needs; if such advice is not available, and if the child or young person is not currently attending a school or post-16 or other institution, the LA must seek advice from a person responsible for educational provision for the child or young person); if any parent of the child or young person is a serving member of Her Majesty’s armed forces, also from the Secretary of State for Defence; (c) medical advice and information from a health care professional identified by the responsible commissioning body; (d) psychological advice and information from an educational psychologist; (e) advice and information in relation to social care; (f) advice and information from any other person the LA thinks is appropriate; (g) where the child or young person is in or beyond year 9, advice and information in relation to provision to assist the child or young person in preparation for adulthood and independent living; and (h) advice and information from any person the child’s parent or young person reasonably requests that the LA seek advice from. If the child or young person in question is either hearing or visually impaired, or both, the educational advice and information must be given after consultation with a person who is qualified to teach children or young people with these impairments.
The SEND Code of Practice, at paragraphs 9.32 to 9.34, stresses that local authorities and their partners should establish local protocols for the effective sharing of information which addresses confidentiality, consent and security of information. As far as possible there should be a ‘tell us once’ approach to sharing information during the assessment so that families and young people do not have to repeat the same information to different agencies or different practitioners and services within each agency. However, LAs must discuss with the child and young person what information they are happy for the LA to share with other agencies, and a record should be made of what information can be shared and with whom.
A request for a local authority in England to secure an EHC needs assessment for a child or young person may be made to the LA by the child’s parent, the young person or a person acting on behalf of a school or post-16 institution: subsection 36(1).
When a request under subsection 36(1) is made to a local authority, or a LA otherwise becomes responsible for a child or young person, the LA must determine “whether it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan”: subsection 36(3). By subsection 36(4), in making a determination under section 36(3), the LA must consult the child’s parent or the young person. Subsection 36(10) provides that, in making a determination or forming an opinion for the purposes of section 36 in relation to a young person aged over 18, a local authority must consider whether he or she requires additional time, in comparison to the majority of others of the same age who do not have special educational needs, to complete his or her education or training.
Where the local authority determines that it is not necessary for special educational provision to be made for the child or young person in accordance with an EHC plan, it must notify the child’s parent or the young person: (a) of the reasons for that determination, and (b) that accordingly it has decided not to secure an EHC needs assessment for the child or young person: subsection 36(5).
It follows that a ‘refusal to assess’ appeal under subsection 51(2)(a) will arise where a local authority has determined that it is not necessary for special educational provision to be made for the child or young person in accordance with an EHC plan and has given notification in accordance with subsection 36(5). However, subsections 36(6) and 36(7) make provision for circumstances where no request has been made but the LA determines that it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan. In the prescribed circumstances, the LA must notify the parent or young person of their right to express views and submit evidence to the authority. Subsection 36(8) requires the LA to secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted under section 36(7), the LA is of the opinion that the child or young person has or may have special educational needs, and it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.
The relevant regulations are regulations 3 to 10 of the Special Educational Needs and Disability Regulations 2014.
Regulation 3 requires the local authority to consult the child’s parent or the young person as soon as practicable after receiving a request for an EHC needs assessment under section 36(1) of the Act, before determining whether it may be necessary for special educational provision to be made in accordance with an EHC plan for the child or young person.
By regulation 4(1) and regulation 5(1), where a local authority determines that it is not necessary for special educational provision to be made in accordance with an EHC plan it must notify the child’s parent or the young person in accordance with section 36(5) of the Act as soon as practicable, but in any event within 6 weeks of receiving a request for an EHC needs assessment under section 36(1) of the Act or becoming responsible for the child or young person in accordance with section 24 of the Act. It must also notify them of their right to appeal that decision, the time limits for doing so, the information concerning mediation, set out in regulation 32, and the availability of disagreement resolution services and information and advice about matters relating to the special educational needs of children and young people. However, the LA need not comply with the time limit referred to in regulation 5(1) if it is impractical to do so because of any of the situations specified in regulation 5(4) apply.
In Cambridgeshire County Council v FL-J [2016] UKUT 225 (AAC) the First-tier tribunal decided that the local authority should secure an assessment. In the Upper Tribunal, Jacobs J rejected the LA’s ground of appeal against that decision which related to the issue of necessity. Jacobs J held, at [11], that the First-tier Tribunal, hearing an appeal against a decision not to secure an assessment, had to make a provisional predictive judgment about the likely need for special educational provision; it did not have to make a definitive decision. The factual issues that were argued out by the parties in their response and reply on the appeal might well be relevant to, if not determinative of, the final decision under section 37, but that was not within the Tribunal’s jurisdiction to decide in an appeal under section 51(2)(a). In an appeal under section 51(2)(a), the Tribunal only had to decide whether the threshold questions for the making of an assessment were satisfied, and that did not need to be done with so great a degree of certainty. Its findings and reasons were entitled at that initial stage to reflect the degree of uncertainty that is inherently likely before an assessment is actually made. Jacobs J held, at [4], that when the authority or the tribunal is deciding whether an assessment should be secured, two different questions arise. One is a question of present fact: ‘has’ the young person a learning difficulty or disability? The other is a prediction: is it one that ‘calls for’ special educational provision (section 20(1)) or for which such provision ‘may be necessary’ (section 36(3))? Those different expressions are both framed according to the stage of the process. The LA or tribunal does not have to decide at this initial stage whether special educational provision ‘is necessary’ (section 37(1)); that question only arises when an assessment has been made. The issue at the initial stage is a provisional and predictive one; it is only when an assessment has been made that a definitive decision has to be made.
In RB v Calderdale MBC (SEN) [2018] UKUT 390 (AAC) the First-tier tribunal decided not to uphold the parent’s appeal against the local authority’s decision not to secure an assessment in respect of her child. R was an able student, but had a diagnosis of indeterminate colitis, one consequence of which was that he had missed a significant amount of schooling. The LA argued that R’s needs could be supported at school by a health care plan. The First-tier Tribunal accepted that R’s illness was a disability which prevented and hindered him from making use of facilities of a kind generally provided in mainstream schools for the purposes of section 20(2)(b) of the 2014 Act (which defines special educational needs), ‘in the sense that he is not able to attend school at present’, but it did not consider that it fell within the definition of section 20(1) because it did not call for special educational provision to be made for him (defined in section 21(1) as educational or training provision that is additional to, or different from, that made generally for others of the same age in mainstream schools in England). The First-tier Tribunal found that the provision the parent regarded as necessary – which included a laptop for any time that he was too ill to attend school, home tuition and counselling – was no different to the provision generally available to other children at mainstream school. The Upper Tribunal (Wikeley J) held, at [21-22], that the First-tier Tribunal had focused, incorrectly, on the fact that R did not have a learning difficulty and did not require curriculum differentiation. It had failed to give sufficient weight to the fact that R was not at school at the material time and had failed to consider what provision might be necessary to ensure that he was able to return to school. It had missed the point that interventions to enable him to return to (and remain at) school, such as home tuition and help to address the mental health issues associated with his physical disability, might have fallen within the definition of special educational provision. It had lost sight of the question it had to answer under section 36(3), namely “whether it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.”
Under section 323 of the Education Act 1996, the statutory test for assessment was: (a) does the child have special educational needs, and (b) is it necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for? In Buckinghamshire County Council v HW (SEN) [2013] UKUT 0470 (AAC) at [7] Jacobs J considered it thus: there were two conditions in subsection 323(2): one was a matter of fact: did the child have special educational needs? The other was a matter of judgment: was it necessary to determine the special educational provision that any learning difficulties she might have called for? As for the meaning of the word, ‘necessary’, Jacobs J stated, at [16]: “There may well be sufficient flexibility in the meaning of necessary to avoid any such discussion. Although in the dictionary this word is defined in terms of what is essential or indispensable, in practice it is used less strictly. That meaning is captured by the European Court of Human Rights in The Sunday Times v United Kingdom (1979) 2 EHRR 245 at [59]. The Court said that it was neither synonymous with indispensable nor equivalent to useful, reasonable or desirable. Rather it connoted a pressing social need. That would not be an appropriate test in the context of the Education Act, which is significantly different from the European Convention on Human Rights. But the point remains valid. Necessary sets a standard that is somewhere between indispensable and useful or reasonable. I am not going to define it more precisely. It is a word in general usage and it is that usage that the tribunal must apply.”
In The Royal Borough of Kensington & Chelsea v GG (SEN) [2017] UKUT 0141 (AAC) the Upper Tribunal held, at [80-82], that if the provision sought by the young person in question was higher education, that would not be a form of special educational provision for the purposes of Part 3 of the 2014 Act given the exclusion of HE from the definition of “education” by section 83(4). An assessment would therefore be pointless because it could not lead to an EHC plan that would deliver what the young person wants. However, a vague aspiration to pursue HE or the inclusion of HE amongst the educational options that a young person is thinking of pursuing should not be seized upon as a reason to exclude them from the system of entitlements under Part 3 of the 2014 Act. In this respect, local authorities should bear in mind their general obligations under sections 19 and 32 of the 2014 Act: they may need to explain to a young person that, if he wishes to pursue HE, Part 3 of the 2014 Act cannot operate to support him through a course of HE. Also, a course is not necessarily a HE course because it is provided by, or under arrangement with, an institution within the HE sector. What matters is whether the course falls within the list specified in Schedule 6 to Education Reform Act 1998.
The SEND Code of Practice addresses EHC needs assessments at paragraphs 9.8-9.19 of Chapter 9.
Paragraph 9.14 states that, in considering whether an EHC needs assessment is necessary, the local authority should consider whether there is evidence that despite the early years provider, school or post-16 institution having taken relevant and purposeful action to identify, assess and meet the special educational needs of the child or young person, the child or young person has not made expected progress. To inform their decision the LA will need to take into account a wide range of evidence, and should pay particular attention to: evidence of the child or young person’s academic attainment (or developmental milestones in younger children) and rate of progress; information about the nature, extent and context of the child or young person’s SEN, evidence of action already being taken by the early years provider, school or post-16 institution to meet the child or young person’s SEN; evidence that where progress has been made, it has only been as the result of much additional intervention and support over and above that which is usually provided; evidence of the child or young person’s physical, emotional and social development and health needs, drawing on relevant evidence from clinicians and other health professionals and what has been done to meet these by other agencies.
Paragraph 9.15 adds that a young person who was well supported through the Local Offer whilst at school may move to a further education (FE) college where the same range or level of support is not available and an EHC plan may then be needed. It also may be the case that young people acquire SEN through illness or accident or have a condition that requires increasing support as they get older.
Paragraph 9.16 points out that local authorities may develop criteria as guidelines to help them decide when it is necessary to carry out an EHC needs assessment, but they must not apply a ‘blanket’ policy as this would prevent the consideration of a child’s or young person’s needs individually and on their merits.
Re-assessments
Section 44 of the 2014 Act and regulations 23 to 28 make provision for re-assessment of EHC needs.
By subsection 44(2) a local authority must secure a re-assessment of the educational, health care and social care needs of a child or young person for whom it maintains an EHC plan if a request is made to it by (a) the child’s parent or the young person, or (b) the governing body, proprietor or principal of the school, post-16 institution or other institution which the child or young person attends. However, this is subject to regulations made under subsection 44(7)(b), and by regulation 24 of the 2014 regulations, the LA does not need to do so where it has carried out an assessment or re-assessment within the period of six months prior to that request or it is “not necessary” for the LA to make a further assessment.
By subsection 44(5), in deciding whether to secure a re-assessment of the needs of a young person aged over 18 for whom an EHC plan is maintained, a local authority must have regard to whether the educational or training outcomes specified in the plan have been achieved.
By regulation 25(1), the local authority must notify the child’s parent or the young person whether or not it is necessary to re-assess the child or young person within 15 days of receiving the request to re-assess. By regulation 25(2), where the LA does not need to re-assess the child or young person the notification under regulation 25(1) must also notify the child’s parent or the young person of their right to appeal matters within the EHC plan in accordance with section 51(2)(d) of the Act, the time limits for doing so, the information concerning mediation, set out in regulation 32; and the availability of disagreement resolution services and advice and information about matters relating to the special educational needs of children and young people.
Powers of the First-tier Tribunal in ‘refusal to assess’ or ‘re-assess’ appeals, and compliance
By regulation 43(2)(a) and (b) of the 2014 Regulations, when determining an appeal made under section 51(2)(a) or (d), the powers of the First-tier Tribunal include the power to dismiss the appeal or to order the local authority to arrange an assessment of the child or young person under section 36 or a re-assessment under section 44(2) where the LA has refused to do so.
By regulation 44(2)(b), where the order of the First-tier Tribunal requires a local authority to make an assessment or re-assessment, the LA shall within 2 weeks of the order being made notify the child’s parent or the young person that it shall make the assessment or re-assessment. Where, following the assessment or re-assessment, the LA decides that it is not necessary for special educational provision to be made for the child or the young person, in accordance with an EHC plan, the LA shall notify the child’s parent or the young person of its decision, giving reasons for it as soon as practicable, and in any event within 10 weeks of the date of the First-tier Tribunal’s order. Where, following the assessment or re-assessment, the LA decides that it is necessary for special educational provision to be made for the child or the young person, in accordance with an EHC plan, it must send the finalised plan to the child’s parent or young person under regulation 14(3) and to those specified in regulation 13(2) as soon as practicable and in any event within 14 weeks of the date of the First-tier Tribunal’s order. Regulation 44(2) is subject any direction made by the First-tier Tribunal: regulation 44(1).
In an unopposed appeal, the Tribunal is not required to make an order. By regulation 45(3), the local authority must, within 2 weeks of the date it notifies the First-tier Tribunal that it will not oppose the appeal before it submits a response, notify the child’s parent or the young person that it must make the EHC needs assessment or re-assessment. If, following the EHC needs assessment or re-assessment, the LA decides that it is not necessary to make and maintain an EHC plan, it must notify the child’s parent or the young person of its decision, giving reasons for it as soon as practicable, and in any event within 10 weeks of the date it notified the First-tier Tribunal that it would not oppose the appeal: regulation 45(3A)(a). If the LA decides that it is necessary to make an EHC plan, it must send the finalised plan to the child’s parent or the young person under regulation 14(2) and those specified in regulation 13(2) as soon as practicable and in any event within 14 weeks of the date it notified the First-tier Tribunal that it would not oppose the appeal: regulation 45(3A)(b).
However, by regulation 44(3) and 45(7) the local authority need not comply with the above time limits if it is impractical to do so because (a) exceptional personal circumstances affect the child or their parent, or the young person during that period of time; (b) the child or their parent or the young person is absent from the area of the LA for a continuous period of 2 weeks or more during that period of time; or (c) any of the circumstances referred to in regulation 13(3) apply.
The circumstances referred to in regulation 13(3) are if it is impractical for any of the reasons set out in regulation 10(4)(a) to (d). Those reasons are: (a) the local authority has requested advice from the head teacher or principal of a school or post-16 institution during a period beginning one week before any date on which that school or institution was closed for a continuous period of not less than 4 weeks from that date and ending one week before the date on which it re-opens; (b) the LA has requested advice from the person identified as having responsibility for special educational needs (if any) in relation to, or other person responsible for, a child’s education at a provider of relevant early years education during a period beginning one week before any date on which that provider was closed for a continuous period of not less than 4 weeks from that date and ending one week before the date on which it re-opens; (c) exceptional personal circumstances affect the child or the child’s parent, or the young person during that time period; or (d) the child or the child’s parent, or the young person, are absent from the area of the authority for a continuous period of not less than 4 weeks during that time period.