Independent review of Hertfordshire EHC needs assessments process makes 17 recommendations for improvement

The review, carried out by Leon Glenister, was commissioned by the council earlier this year following a judicial review claim regarding delays relating to an EHCNA.

In R (W) v Hertfordshire County Council [2023], the High Court found the council acted unlawfully by not completing issuing an EHC Plan within 20 weeks from the date of request.

The claimant had also argued that the council was acting unlawfully in a wider systemic way. The wider claim was settled on terms that the independent review be carried out.

The review looked at three areas in particular:

1. The initial decision whether or not to assess a child or young person,
2. Appeals against refusals to assess, concessions in refusal to assess appeals,
3. The subsequent completion of the EHCNA.

In his final report, Glenister noted that past failings had been “recognised” by Hertfordshire County Council. He said: “It has invested around £7m in improving SEND services, at a time of significant financial pressure across the public sector.”

However, he warned that data still shows “a sizeable cohort who are still being failed by the systems in place”.

Looking at the timeframes for Hertfordshire issuing an EHC plan following a needs assessment, the independent review found that in 2023, nationally only 50.3% of EHC Plans were issued within the 20 week period and the council issued 40.2% within the period.

In 2024 (to May 2024) the council issued 54% within 20 weeks.

Glenister said: “Whilst there has been an improvement, there is a still a big gap between current performance and meeting its statutory duty.”

The independent review made the following recommendations to improve the council’s processes relating to EHCNAs:

Timeframes for determining a request for an EHC Needs Assessment

Recommendation 1: Where an EHCNA request is received, the CIAO should diarise the 6 week deadline. If that passes and no decision has been made, they should always contact the parent to explain the reasons for that delay immediately. If this is initially a phone call it should be followed up by a short email.

Recommendation 2: Following consideration of the weekly child level report, the relevant Team Lead should discuss each case where the 6 week deadline has been missed with the relevant CIAO.

Decision making in determining whether to carry out an EHCNA

Recommendation 3: The key points from the case law on the EHCNA test are included in all induction and training materials for SEND Panel Chairs as well as attendees for LMAG Panels.

Recommendation 4: There should be a concise standing document for each LMAG Panel meeting setting out the legal test, to include the key points from the case law, which should be part of the introductory papers for every panel meeting.

Recommendation 5: Whenever a tribunal appeal is conceded, or otherwise determined by the FTT, the SEND Panel Manager who took the initial decision to refuse to assess should be provided with a note setting out the reasons why the decision was conceded, or a copy of a FTT judgment in the case of an appeal.

Recommendation 6: A member of the Council’s R&R Team attends monthly moderation meetings between the SEND Panel Managers where refusal to assess cases are being discussed.

Recommendation 7: The monthly performance report should include reference to the number of refusal to assess appeals, those conceded, and (as at present) the numbers determined by the FTT for and against the Council.

Recommendation 8: The Council reviews and amends training materials and guidance to ensure that where it states the graduated approach is a relevant consideration, it is clear it is not an absolute criterion or pre-condition.

Recommendation 9: Where an appeal against a refusal to assess is conceded, a timeline should be agreed with the parent, and if an EHC Plan is to be issued then that should not be more than 14 weeks from the date of concession.

Recommendation 10: The Council should publish an accessible document setting out an introduction to SEN provision, to include the graduated approach, requests for an EHCNA (and test applied) and timelines for an EHC Plan. This should be concise and may be an introduction with relevant links to further information. It should also include links to other sources of assistance for parents such as SENDIASS. This should be readily available on the Council website and be handed out to parents when they meet Council officers to discuss SEND provision.

Recommendation 11: In relation to the communication of reasons of a refusal to assess:

1. The template decision letter where there is a refusal to assess should be reviewed and rewritten. It should include reference to the legal test that the decision maker applied to be transparent. The term “more suitable pathway” should be removed.
2. The Council should issue guidance to SISOs on the level of detail in the reasons given, which should directly address the legal test.
   
3. Once a decision has been made at the LMAG Panel meeting, the Chair should check specifically with the SISO that they understand the reasons why it was considered the legal test is not met to ensure these can be properly communicated in the decision letter.
   

Recommendation 12: The guidance and training for SISOs in relation to ISMs should make clear that at every ISM:

1. The school is provided with an opportunity to feed back any concerns about the refusal to assess decision and these are considered.
2. Consideration is given to whether a check in is required with the parent and/or school in relation to the child’s progress, and if so, when that should take place. If such a check in is agreed to be by the SISO, it should be diarised by the SISO.
   

Timeframes for issuing an EHC Plan following an EHCNA

Recommendation 13: The EP service should devise a specific strategy for improvement of its
delivery of EP advices within 12 weeks of an EHCNA request. This should include:

1. Measures to ensure the data on timeliness of EHCNA advice is recorded in a single place.
2. An appropriate target for delivery of EHCNA advice by week 12 between now and September 2024 (when the additional EPs will start in their role).
3. Measures, including use of locum EPs, for ensuring the target is met between now and September 2024
4. An appropriate target for delivery of EHCNA advice by week 12 from September 2024.
5. Any additional measures required to meet the target from September 2024.

The strategy, and the success of the strategy against targets, should be reported to the Education, Libraries and Lifelong Learning Cabinet Committee by the end of January 2025.

Recommendation 14: For the Council to seek assurance from the Trust that it will be made aware at the monthly therapies steering group meeting if 95% of SLT advices for EHCNAs were not delivered within 30 working days that month.

Recommendation 15: Add to the monthly child level reports the number of EHC Plans which have been issued within 20 weeks, where all advice has been provided by week 12.

Recommendation 16: Where a decision is made to carry out an EHCNA, the allocated CIAO will diarise key points to proactively check the progress of the case and update the parents as necessary. If there is any delay, or likely delay, the parents will be informed of the reasons and be provided with timescales for resolution of the issue. If this is a telephone call, then it should be followed up by a short email.

Recommendation 17: The Council policy on whether to issue an EHC Plan where one or more assessment reports are outstanding at 20 weeks is made clear to EHCCos in induction and training materials.

The council has published its plans to address the recommendations, which it will complete by 27 August.

Responding to the review, Hertfordshire County Council noted the finding that there was no deliberate policy to apply too high a threshold in determining whether to carry out an EHCNA.

It also highlighted a finding that historic delays in determining whether to assess were due to the capacity in the system, and that a lack of capacity had led to failures in communication.

Commenting on the findings, Scott Crudgington, the local authority's Interim Chief Executive, said: “We value this independent review of our processes and practices in relation to the decisions we make during EHC needs assessments and we hope families will feel reassured that early improvements are being seen.

“We recognise that it will take time for families to experience a consistent improvement in our service and we’ve got work to do to re-build trust with them.

“We would like to thank parents and carers who provided feedback to inform the review and we will continue to work and communicate regularly with our parent community.”

Dame Christine Lenehan, Independent Chair of the SEND priority executive (the Hertfordshire SEND partnership’s multi-agency improvement board), said: “I would like to thank Mr Glenister for this excellent report which shows the progress Hertfordshire are making and the recommendations which will further improve the service offered to families. This marks an important step on the improvement journey.” 

Lottie Winson