with Liz Arriens Troy, a parent of a child with Down Syndrome
The 2014 SEND reforms were supposed to have made EHCPs more easy to move between local authorities when you move home. However, one mum, Liz Arriens-Troy, parent of a child with Down syndrome, found out that like everything else in SEND, things are harder than they should be.
Liz used some of our resources to help her navigate the jungle of EHCPs. Specifically, she used what she had learned in this article, to seek (and win) compensation for five months of missed therapy provision for her daughter after they moved LAs. Liz has now used her experience to create top tips to help other families who may find themselves in a similar position
One word of caution: this is a parent’s personal experience and she isn’t a lawyer, although she used the law to support her. Your own case will vary, so please check the resources provided and consult a SEND legal source such as IPSEA or SOSSEN, other free support such as your local IAS, or, if you need it and can afford it, a qualified and regulated legal practitioner.
Here’s her story and top tips…
Our home move became a battle over SEND provision. It shouldn’t be this hard. By Liz Arriens-Troy
We began the statutory assessment process for our three-and-a-half-year-old (at the time) daughter who has Down’s syndrome in March 2021. We had planned to move to another area in August that year. I phoned the SEND team at our prospective new LA to ask if they would accept our new EHCP and they said they’d take it on the same provision.
The EHCP was issued in our home LA in June 2021. The EHCP coordinator then phoned the SEND team at the new LA and sent them the EHCP. She explained to them the funding attached to the plan, our new address and the name of our daughter's new preschool. The new SEND team had said it was good to do this a month or so in advance of the move.
Tip 1: As soon as you know you’re moving
- Tell the SEND team in the new LA that your child has an EHCP that needs to be transferred. Ask them to honour its funding and content. Make notes of the date, who you speak to, and what they say. (SNJ note: The SEND reforms in 2014 were supposed to have made EHCPs portable, but the lack of a standard template has made this very tricky)
- Emails sent any secure systems may disappear after a certain time, so download any which are important, and make notes of their times and dates and content on your spreadsheet.
- Ensure all therapy provisions are quantified and specified in Section F of the EHCP as this section is legally enforceable.
Tip 2: Keep a spreadsheet
- Begin a spreadsheet listing dates, who you spoke to and what about in relation to the EHCP transfer. Update it daily, as this makes it easy to keep on top of. If there are any issues down the line you can quote from it quickly and easily.
Tip 3: About a month before your move
- Ask your EHCP Coordinator to liaise with the new SEND team. Ask them to confirm to you by email when they’ve done this.
- Send the prospective new school a copy of the EHCP yourself
- Ask all therapists who work with your child to contact their equivalent in the new LA to ask when they can make the referral as they may be told it can only be done on the date of the move or afterwards.
- Ensure your therapists have your new address, and your child’s new school to include with their referral.
Tip 4: Just before you move
- Ensure that the new SEND team in your new local authority has spoken to your child’s new school to explain the funding to them and when it will be in place.
What happened to the EHCP after we moved?
We moved to our new home in early August 2021 and the next month, our daughter, Coraline, began at her new preschool. Physiotherapy, speech therapy and occupational therapy provision were listed in Section F of her EHCP. I contacted the SEND team at our new LA to ask about the status of her EHCP. Between September and November I made five phone calls to the team asking our caseworker to call me back and I sent four emails asking her to contact me. It wasn’t until mid-November that I finally spoke to her. I had spoken to more senior members of the team in October, but they referred me back to wait to speak to our case officer.
Tip 5: The therapy provision in Section F of the EHCP is legally binding immediately on issue even when transferred
- The EHCP is a legally-binding document, so there should never be a question of it being approved. You can challenge the LA if the therapies in section F are not being provided.
- SEND Code of Practice section: Transfer of EHC plans, p.192, 9.157 – 9.162
- Section 47 of the Children and Families Act 2014 and
- Section 15 and 16 of the SEND Regulations 2014
Tip 6: A couple of days after your move
- Keep an eye out that a transfer letter is sent from your previous LA to your new LA that contains the new EHCP, all supporting documents, and the name of the new school your child is going to attend. Make a note on your spreadsheet on the date this was done.
Tip 7: A week after your move
- Check all therapy referrals have been made
- Check emails for the name of your EHCP coordinator and the new SENCO and get in touch with them.
Tip 8: Six weeks after your move
- According to the SEND Code of Practice section 9.160, within six weeks of the date when your child’s EHC plan is transferred, the new LA team must tell you (or the young person) when they will review it and whether they propose to make an EHC needs assessment.
Provision of therapies in an EHCP
- Ask the transferring LA to ensure with the new LA that provision of therapies will be in place on time.
By the end of the year, the therapies were still not in place. Referrals were made by our daughter’s therapists in in our old LA to the new OT and SLT therapy teams on the date we moved. Referrals can usually only be made on the date of the move or very soon afterwards i.e. not before you move. The physiotherapy referral wasn’t made until 2nd September as they were on leave over the summer. We knew we had done all we could in terms of timely referrals.
However, when I checked on the status of our daughter’s referrals with the new NHS therapy teams in October, I discovered the waiting lists were very long. Some were over a year. The new SEND team should have found out these waiting times and advised me of them. They should then have found private therapies as the NHS waiting lists were too long. It can sometimes be hard for the LA to source private therapists due to lack of availability but it’s their statutory duty to do so. Our case officer began looking at private therapists in November and was still looking in December.
Tip 9: If NHS therapies aren’t available, the LA must retain private therapists
Relevant legislation:
“In cases where health care provision or social care provision is to be treated as special educational provision, ultimate responsibility for ensuring that the provision is made rests with the local authority (unless the child’s parent has made suitable arrangements) and the child’s parent or the young person will have the right to appeal to the First-tier Tribunal (SEN and Disability) where they disagree with the provision specified.”
SEND Code of Practice: 0 to 25 years 9.76
Beginning of our complaint, December 2021
Helplines told me I should first try to resolve matters with the SEND team and then, approach in order: the LA’s director of children’s services, their official complaints system and finally, if the complaint is not resolved, the Local Government and Social Care Ombudsman (LGSO), whose ruling would be published anonymously
In mid-December, we told our case officer we would contact the head of children’s services by a certain date if therapies were not in place. At the end of the month, I emailed the SEND team management using information and a template message fabout judicial review from SOS!SEN to give them a chance to put the therapies in place before we took this further step. They began to look into things.
At the start of January, I advised them and the head of children’s services I would begin an official complaint and apply for a Judicial Review if I didn’t hear from them within two weeks. A JR is court action to enforce her entitlement to special educational provision.
Transfer Annual Review?
As our daughter would be starting school the following September, I also asked for a phase transtion annual review. This, I discovered, should have happened the previous term, so her primary placement and an updated EHCP could have been put into place. There is a legal deadline for updated plans of 15th February every year.
Their reply was unsatisfactory so I contacted a solicitor who gave me an incredibly helpful email reply which they allowed me to quote anonymously in an email to the SEND team. I am sharing the terminology we used, as it is what made a difference to us in our case. Following the complaints system at the LA and approaching the LGSCO is free of charge.
“The LA is diverting your attention. If therapies are specified in Section F, then the LA is the commissioning body (which it acknowledges: ‘we are commissioning the outstanding therapies elsewhere’). Once notified by Surrey that the child would be moving into its area, Devon should have taken steps to ensure the provision was in place for the start of the Autumn term. If the provision is yet to be made, this is an ongoing breach of s.42 of Children & Families Act 2014.
This could be a matter for judicial review (and the court can order the LA to secure the provision going forward), but the missed provision would be better addressed through a complaint to the Local Government and Social Care Ombudsman (LGSCO), who can direct the LA to compensate the child for the lost therapy sessions. An LGSCO ruling can also be effective in deterring the LA from behaving in the same way with other parents.”
Tip 10: Be aware if your child is in a phase transition year
- If your child is in a school year before the year they move to primary, secondary or Year 9 for post-16, their EHCP should be updated in the autumn term so that a placement can be named in time for the following September. Final plan deadlines for schools are 15th February and Post 16 is 31st March
We heard back from the LA’s complaints team, and they set up a meeting for us. However, before it took place, three private therapists were appointed for our daughter and she began to have her sessions with them. She also had appointments to assess what equipment she required and we received a walker for our daughter at the end of January 2022.
Formal complaint leads to a resolution
A formal complaints meeting took place at the beginning of February with the complaints team, SEND team representatives and a representative from the NHS. This was constructive and we were awarded a set amount of compensation per hour of therapy missed that was specified in our daughter’s EHCP since the start of the 2021. This meant we didn’t need to to to the Ombudsman but we still wanted to tell SNJ’s readers about what we did to help others in the same position.
We had three levels to our complaint to the complaints team:
- For the SEND team to review their practices and response times to ensure they are meeting their legal obligations in future, so that other parents do not experience what we experienced i.e. unclear responses and insufficient timescales for action taken.
- Compensation for missed therapy provision as it was the LA’s statutory duty to provide it, or double up on therapies for the next five months for the missed months of therapy.
- A ruling from the LGSCO for other parents to refer to (in the end we did not ask for this as we already had our outcome).
We could also have asked for compensation for all of our time taken up and the mental distress of pursuing this (see the Ombudsman’s ruling in this case studywhere this is awarded) but we chose not to do so.
Some examples of good advice we received
Advice we received from the helplines (quoted anonymously):
“If you feel that the child requires additional support to make up for lost learning and therapies while you were waiting for the issues surrounding EHCP provisions to be resolved then you should request this from the Local Authority. At the next review you can ask for additional provisions which you feel are necessary to be included in the child’s EHCP and can appeal to the First Tier Tribunal (SEND) if you are not satisfied with the special educational provisions named.”
“The Local Authority already have a legal duty to secure the provision named in Section F of an EHCP. If they fail to do so then it is for the individual parent to take action for failures in relation to their child’s EHCP.”
Download these top tips as a PDF
About Liz
Liz, her husband Kevin and their daughter Coraline live in Devon. Liz travelled the world and worked in cultural relations for ten years before Coraline was born in 2017. She now writes an award-winning blog, Coraline and Us, about the universal truths Coraline has taught her about what it means to live fully and joyfully. She is currently writing a book based on her blog. Her husband Kevin is a former chef and is now the founder of an award-winning organic skincare range, Coraline Skincare that he formulates and handmakes himself. Coraline loves musical books and bouncing up and down. Coraline is their inspiration.
You can find both Kevin and Liz in their Coraline Skincare shop in Topsham, Devon, and, if you’re lucky, Coraline too.
Also read:
- New SEND Minister, Kelly Tolhurst: many responsibilities but none so important as disabled children’s futures
- I’m a Dad with ASD and ADHD. Here’s why I’ll never give up fighting for my neurodiverse children’s educational rights
- SEND judicial review and how LAs spin tales about “litigious” parents
- EHCP Annual Review: Our stats show there’s nothing annual about them…
- Explaining the Annual Review for a child with an Education, Health and Care Plan
- 15,000 disabled learners with EHCPs but no provision: The EHCP figures for 2021
- When is a significant injustice to a disabled child, not a significant injustice?
- Know your child’s rights to social care support
- Phase Transfer deadline: what to do if your child’s EHCP isn’t finalised on time
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