Triggering statutory assessment of SEN

Question: I have read your very informative analysis of the draft SEN Bill but I still do not understand about the loss of the right to request a Statutory Assessment. Does it really mean that if my child has SEN and needs additional help at school, neither the school or parents will be able to request an Assessment?! If so, how will it be possible for a child get an assessment of their needs, leading to an EHC Plan?

IPSEA's answer: The short answer is that anyone could request an assessment, but no one would have the right to a reply. First you need to understand what we have at the moment. Only then can you understand what is being lost. Currently the law says an LA has a proactive duty to identify those children for whom they are responsible who have SEN, and who may need the LA to determine the provision (the additional help) to meet those needs via a statement of SEN – those are the children the LA must assess. In short, LAs must identify children who probably need statements. In addition, LAs must respond to requests made by parents or schools to assess a child within a time limit - currently 6 weeks. After a parent or school requests assessment, the LA must make a decision and communicate it to the parent within six weeks of the request. LAs can respond to requests for a child to be assessed from other professionals such as an educational psychologist or a health professional but this is a power not a duty, (they can choose to ignore a request from such people or agencies and many do). Only by being required to respond to a request do some LAs actually make the decision and notify parents, and they only make it promptly because there is a set time for it. If it is a "yes" the assessment goes ahead.  If it is a "no" this triggers the parent’s right of appeal against that decision to the SEND Tribunal.

Now to what’s outlined in the draft provisions. LAs would have a new general (and unenforceable) duty to identify all children with SEN, including those children on School Action or School Action +. But gone is the direct duty on an LA to identify those children who have SEN and probably need a statement/EHC plan, the first step in the LA deciding to assess those children. Without this duty it is not clear why a child would need a Plan and when, therefore, the LA must assess. Gone also is the direct duty on a LA to respond to a request made by a parent or school to have a child assessed. Without this duty a parent, or indeed anyone, can write to an LA making the case for a child's needs to be assessed but the LA can choose to ignore that request; they cannot be compelled to make a decision or to notify anyone of it. There is a right of appeal to the SEND Tribunal to appeal a decision not to assess made by a LA but in order to trigger it the LA has to have made that decision and communicated it to parents! Parents - also schools and anyone else that writes to the LA - will be left in limbo if a LA does not respond. If, in addition, the time limit for a response is not included in the new legislation, there can be indefinite delay without remedy. This was the situation before the 1993 Education Act and we hope to ensure no return to the delays and prevarication of those days. 

Hopefully this has answered your question – contact us again if it hasn’t!