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Unlawful EHC needs assessments

View profile for Ed Duff
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We have recently been approached by a concerned parent about one local authority’s approach to EHC Needs Assessments.

The concern particularly relates to the apparent policy of the Local Authority to refuse to make a Social Care Needs Assessment as part of an Education, Health and Care Needs Assessment. This email has caused particular concern:

The concern is that the Local Authority seem to be refusing to undertake a crucial part of the Education, Health and Care Needs Assessment (EHCNA).

Regulation 6 Special Educational Needs and Disability Regulations 2014 sets out the advice that the Local Authority must secure as part of an EHC Needs Assessment. Part of that Regulation requires that advice and information in relation to social care is obtained during the EHC Needs Assessment.

Unfortunately, what is most commonly happening is that Social Services are writing to their colleagues in the Special Educational Needs Team to advise that the young person is not known to them. Increasing too we are aware of Social Care Teams simply not responding at all to requests for information sent out by the Special Educational Needs Services within Local Authorities. The Department for Education has also noted this difficulty and has recently reported that around half of all EHCPs do not contain any advice from Social Services.

It is worth noting that Education, Health and Care Plans (EHCPs) replaced Statements of Special Educational Needs as part of the reforms brought about by the Children and Families Act 2014. These reforms were brought in, among other reasons, in order to ensure cooperation between the three agencies of Special Educational Needs Team, Health and Social Care. Therefore, the whole point of the EHCPs is that there is a tripartite service provision contained within one document to give a clear and understandable explanation of a young person's needs and the provision to which they would legally be entitled.

Of particular concern is the fact that Social Care Terms work within the same Local Authorities as the Special Educational Needs Team. There is always going to be some difficulties with getting advice from health professionals because they work within the NHS which is going to be an entirely different organisation. It is questionable what hope there is for the NHS and Local Authorities to work together when two departments within one Local Authority cannot even cooperate.

As can be seen from the above email the Local Authority are operating a policy that Social Care will only undertake an assessment there is a risk to the child. Further, the email goes on to say that if the parents think that the young person needs support from the Disabled Children's Team (which is Social Services) then that is separate to the EHC process. That is fundamentally wrong in law and completely fails to understand the entire concept behind the EHC reforms.

What is particularly frustrating is that Local Authorities consistently seem to miss the point that every young person with Special Educational Needs is also a child in need. The Local Authority owes a duty to provide services to every child in need within its area.

The Children Act 1989 provides that a child is in need if:

  1. S/he is unlikely to achieve or maintain or have the opportunity of achieving or maintaining a reasonable standard of health or development without the provision of services;
  2. His/her health or development is likely to be significantly impaired, or further impaired, without the provision of services;
  3. S/he is disabled.

The definition of disabled is that contained within the Equality Act 2010. Without going into a detailed explanation, every child with Special Educational Needs would satisfy the meaning of "disabled" found within that legislation. As such, therefore clearly every child with Special Educational Needs is disabled and in turn is also a Child In Need.

That being the case, every Local Authority has a duty further to Section 17 Children Act 1989 to make services available to children and young people with special educational needs. That is in addition to the duties to identify their Special Educational Needs and cater for those educational needs specifically.

The framework for the assessment of children in need and their families clearly sets out that where a Local Authority has a duty to provide services, it can only work out what those services are by way of assessment of the young person.

What this all means is that, in our view, any blanket policy to refuse to undertake a Social Care Assessment unless there is a particular risk to a young person's welfare is unlawful. Quite clearly, with proper reading through the legislation, the EHC needs assessment should also include an assessment by social care  Further, describing the assessment of support further to Social Care duties as being separate to the EHCP process is wrong in law.

If an EHC Needs Assessment is to be functional the Local Authority must be providing an assessment in relation to education, social care and health needs. There after, only upon establishing what those needs are, can the Local Authority decide what services it should be making available. Quite clearly, the duty to provide services arises further to Section 17 once a young person is identified as having Special Educational Needs. It is only possible to discharge that duty by way of assessing those needs and establishing what support and/or services the Local Authority need to provide further to the Social Care functions.

The further difficulty that parents will face in these situations is that the Special Educational Needs and Disability Tribunal cannot, at the time of writing, look into the Social Care aspects of an EHCP. The Tribunal currently are only able to deal with the education aspects. That means that parents can only ever pursue legal action by way of judicial review in respect of the Social Care provision. That is also true for a situation where the Local Authority is simply refusing to discharge its clear legal obligations to assess.

If you experiencing difficulties in relation to Special Educational Needs and/or securing an assessment or services from Social Care then please do not hesitate to contact our specialist solicitors on 02920 291704.

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