What to expect when instructing Independent Experts
When it comes to provision in an EHC Plan, expert evidence is key. Information placed in Sections B and F of an EHC Plan will come from expert evidence. Therefore, instructing independent experts is the first step in achieving a great EHC Plan.
It is rarely the case that parents of children/young people with EHC Plans are told the full extent of the Special Educational Needs (SEN) that their child/young person has by the Local Authority, and NHS expert reports are not extensive enough to produce a truly measured account of the SEN that can be transferred to a specified EHC Plan.
An independent expert will assess the child/young person and be able to provide expert findings on the Special Educational Needs (SEN) that the child/young person has. Independent experts will be able to diagnose any SEN that may not previously been picked up on or provided, for example Educational Psychologists are able to diagnose Dyslexia and Dyscalculia and Speech and Language Therapists Language Disorders.
Independent experts will be able to provide an analysis on the severity of the child/young person’s SEN, but most importantly they will be able to make recommendations in respect of provision that would be suitable to support the child/young person’s SEN.
In order to achieve this, we advise you instruct an Independent expert who will produce a report that is specified and quantified, it is good practice to ask for a draft redacted report before instructing to ensure that the expert you are instructing will do this to a sufficient standard and that the work they produce is to the quality required. Unfortunately, we come across many reports which, whilst they set out the child’s needs clearly, fail to make specific and quantified recommendations for provision.
Further, if there is also a question about the placement that the child/young person should attend (including post-16) an Educational Psychologist will be able to provide recommendations, that may be best suited to support the child/ young person. An Occupational Therapist and Speech and Language Therapist will also be able to advise on the therapies required, that once contained within a child/young person’s ECHP, must be secured by the LA and often determine whether a placement is appropriate, particularly in the case of integrated therapies.
What you must remember when instructing independent experts is that although you are requesting their services, they have a duty to the court to assist in making fair and just decisions.
Part 35.3 of the Civil Procedure Rules states that this duty overrides any obligation from the person instructing or paying the expert for their services. As such, all experts are required under the Civil Procedure Rules, Part 35, Practice Direction 2 to provide objective, unbiased opinions on matters within their expertise to assist the court with their decision without influence from litigation.
This does not mean that you cannot ask questions or seek clarification on any points in a report produced by an expert, such as ‘what are the number of pupils required for small group work mentioned at paragraph x in your report’? or ‘can you clarify what you mean by the wording for indirect support in your report? However, any request that experts change or remove facts or alter their opinion for the betterment of the case is not allowed.
An expert’s duty to the court is paramount and they are required at the end of their report to state that they have produced their report based on facts and their opinion within their expertise. They must also include in this statement, that they can have proceedings brought against them if they have not fulfilled their duty to the court.
Once a report is served to the court any changes of opinion or fact required to be made by the expert must be done so in the form of an addendum report, as soon as possible, with explanations for these changes.
In summary, when considering instructing independent experts for the purposes of EHC Plans and subsequent Appeals, you must ensure they are experienced with Tribunal work and are willing to specify and quantify their recommendations. This evidence will be the key to you being successful within the Tribunal.