According to data just published by The Department for Education, Suffolk County Council refused 36% of EHC needs assessment requests in reporting year 2021, placing them in the worst 9% of the country. The Children and Families Act 2014 s36(8) lays out the legal criteria for deciding whether an EHCNA is necessary, these being: where 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 via an EHCP.
Our personal experience was that our request was refused. This was puzzling, as the school had told SCC they required more support and advice for our child’s SEND difficulties and could not obtain it via the local offer. Our request for assessment very clearly met the legal criteria. A conversation with our SCC family services caseworker revealed the refusal was because ‘they’re doing well academically’, ‘there’s no health services involved’, ‘no educational psychologist assessment has been done’ and ‘the school have a good understanding of needs and can meet them’ (?!). Fortunately, due to my avid reading of the IPSEA website and support from fellow SEND families, I knew these were not valid or lawful reasons to refuse to an EHCNA and I appealed. This was quite a novelty to the school SENCo, who didn’t even realise that we could appeal to a Tribunal (another puzzling matter). Other families advised mediation was often a waste of time and it was quicker to get the mediation certificate and lodge an appeal ASAP. This was certainly the case for us and SCC conceded two weeks after we lodged the appeal. They clearly knew we met the legal criteria for assessment and I cannot help but feel the refusal to assess was simply a way of hoping we would just go away never to bother them again.
Unfortunately, this tactic appears to work quite well. In 2019/2020, 365 requests for an EHCNA were refused by SCC. Only 106 families took their case to mediation, so that got rid of 259 children/young people at the first hurdle. Out of the 106 who tried mediation, only 13 families got the decision overturned. That got rid of a further 93 families. Out of the 13 who tried but were unsuccessful at mediation, only 7 then proceeded to take their case to the Special Education Needs and Disability Tribunal (SENDIST). Nevertheless, all seven families who lodged an appeal at SENDIST obtained an EHCNA, a 100% success rate. Two of these cases were conceded by SCC before the appeal hearing. Statistics for 2018/19 are similar. 406 refusals to assess, only 54 taken to mediation, 25 of those were overturned. Nine families lodged appeals with SENDIST and again there was a 100% success rate for those nine. One case was conceded by SCC before the hearing, although I know of a few families who claim their cases were conceded that year, which is odd, as I was sure this one conceded case must be ours! Now imagine if every single family who was refused an EHNCA went to Tribunal when there was a 100% success rate in Suffolk in the last two years? Across the country, success rates remain high. Matt Keer from Special Needs Jungle reports 95% of decisions at SENDIST go in favour of parents and in the last six years SENDIST have only upheld 9% of local authority decisions (1). Whatever way you look at it, local authorities, including SCC, are making poor decisions, which SENDIST are disagreeing with.
Once an EHCNA is agreed/ordered by tribunal, SCC have until week 16 of the statutory 20 week process to decide whether or not to issue a plan and all plans must be finalised by week 20. Matthew Hicks, Council Leader, has recently spoken to the media about how 90% of Suffolk EHCP’s are issued within the 20 week statutory time frame (measured during a sharp decline in EHCNA applications over the COVID lock-downs). This is still 10% short of the statutory requirement that ALL EHCP’s are issued within 20 weeks, although an undeniable improvement from the 146 week Suffolk EHCP reported in 2019 (2). Whilst we welcome all improvements whole-heartedly, falling below the statutory minimum expectation is hardly something to be bragging about and nor does it detract from the fact SCC are still failing to meet their statutory duties. Whilst 90% of EHCPs may be issued on time, an EHCP is only as good as the advice and provision it contains…