Welcome to the second in our series of myth busters! Today we ask whether the following is a myth or not….…
“Is it true that where an EHC needs assessment is requested by someone other than the parents of a child or the young person themselves, if it is declined by the local authority, does that remove the right of the parents/young person to appeal to the SEND Tribunal?”
At Talem Law, we are surprised by the number of times parents tell us that they have been told by a local authority that they cannot appeal to the SEND Tribunal if a school asks a local authority to conduct an education, health and care needs assessment (often called an EHC needs assessment) of a child or young person aged between 0 and 25 and the request is refused.
We at Talem Law consider this to be a myth and this is why…..
If we look at s 36 (1) The Children and Families Act 2014 we find it says the following:
(1) 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 authority by the child’s parent, the young person or a person acting on behalf of a school or post-16 institution.
Clearly a school or post-16 institution can make such a request to a local authority.
To find out what happens next if the request is refused, we must turn to The Special Educational Needs and Disability Regulations 2014, specifically Reg. 5.
This says:
(1) The local authority must notify the child’s parent or the young person as soon as practicable and in any event within 6 weeks of— (a) receiving a request for an assessment under section 36(1) of the Act [the Children and Families Act 2014]……
(3) When notifying the child’s parent or the young person of its decision that it is not necessary to secure an EHC needs assessment for the child or young person, it must also notify them of—
(a) their right to appeal that decision;
Anyone who wants to check the above, can look at the SEND Code of Practice, specifically para 9.19. Intuitively one may conclude that this must make sense because, even if a school or post-16 institution does make the original request, the child or young person will be consulted in the same way as if the child’s parents or young person had made the request. Para’s 9.8 and 9.9 are worth reading because they highlight the whole range of individuals and organisations who can make a request.