EHCP Answers

The EHCP Transfer Clinic facility, that ran from 2014-2018, has now ended. However, many of the questions Marguerite and Helen answered may still be useful regarding EHCPs generally so please browse through. 

If they don't help your question, please download our SNJ Helpful links document, which we'll update periodically

Click the + below read the answers on here.... (and share this page to help your SEND parent friends) If you want to ask your own question, use our Ask IPSEA service, but this is NOT for urgent cases

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***EHCP Transfer Clinic - Your Questions, Our Answers***

EHCP Transfer Clinic

Does a young person need an EHCP to get extra support in an FE college?

Daughter age 21. Statemented since age 5. In residential special college with 139a. Mainstream FE college has offered her a place (requires 1:1 support) and the local authority has just turned down EHCP. Given her a My Support Plan. College says they cannot support her without EHCP. She cannot use public transport without support.

EA have said: 

  • Essentially, for young people without an EHCP, the funding for post 19 is through the Skills Funding Agency, not the EFA & LA. This does not mean that additional support is available. Skills FA do provide additional learner support.
  • So, it should not be the case that the college cannot offer without an EHCP in place. There may be exemptions to charges as a post 19 ‘adult’ course charges will come into play. There are exemptions, and circumstances may be that full charges will not be made. College can explain the criteria. Will be starting the appeal process next week (whatever that actually means). Can you help or advise?

Many, many thanks for such a superb site. I've stumbled upon it via the power of Google.

Marguerite says:

Firstly, congratulations to your daughter for gaining a place at college. 

Secondly, all young people with an LDA (or a statement) should transfer to an EHC plan unless something has happened which means that their individual needs have changed (so that they no longer need a statement or learning difficulty assessment). The legal test for issuing an EHC plan is no higher than it was for issuing a statement. Additionally, The SEN Minister, Ed Timpson, has stated (on the video to SNJ) that no one should lose their statutory support as a result of the changes to the new system. 

The Transition Guidance, 2015 states the following: 

3.15     From 1 September 2016, all young people who had received support as a result of an LDA in further education and training who continue in further education or training beyond that point and who need an EHC plan must have one. 

4.23    Young people in further education or training who receive support to meet their SEN as a result of an LDA and who intend to continue in education beyond 31 August 2016 can choose either to:

  • continue for the time being to receive their support as a result of their LDA (where it is still required); or
  • request an EHC needs assessment at any time.

It is expected that the LA will carry out this assessment for all young people with an LDA and then issue them with EHC plans unless there is a particular reason why they think a young person no longer needs the same level of support. Even if you do not trigger an EHC needs assessment, the LA must transfer all LDAs to EHC plans by April 2016. If the LA does not agree with that request, then the decision can be appealed to the SEND Tribunal.

Funding: 

For funding purposes, a high needs student is defined as:

  • a young person aged 16 to 18 who requires additional support costing over £6,000;
  • any young person aged 19 to 25 subject to a Learning Difficulty Assessment (LDA) or an EHC plan who requires additional support costing over £6,000.

 In all instances, a high needs student’s placement must be commissioned by the local authority and include the top-up funding (element 3) to be paid to an institution. An agreement must be in place between the two parties to that effect. The funding system has two aspects which are:

  • place funding is known as elements 1 and 2 for post-16 institutions (except special schools and special academies)
  • top-up funding (known as element 3 for post-16 institutions)

 Place funding includes the funding which pupils and students at an institution attract for their core education and basic programmes and funding to meet the first £6,000 of additional support costs. Top-up funding is that which is required over and above place funding, to enable a pupil or student with high needs to participate in education and learning.

 Students aged 19 to 24 without an EHC plan or LDA: 

For students with SEND aged 19 to 24 without an EHC plan or LDA, the Skills Funding Agency (SFA) assumes the responsibility for commissioning provision even when the support costs exceed £6,000. In this situation, learning support funding should be used. Where a young person aged 19 (or over but under 25) arrives at college and, based on the institution’s assessment, is likely to need additional support costing over £6,000, the institution can request a statutory assessment for an EHC plan from the young person’s local authority. In these cases, the local authority has up to 6 weeks to decide whether to conduct an assessment. While the decision to assess or actual assessment period is ongoing, the institution should enrol the learner as an adult learner funded by the SFA. If the learner subsequently goes on to receive an EHC plan, then the institution should make a change to the individual learner record (ILR) and the learner would be funded by EFA. 

I suspect that the College is wanting to claim the top-up funding (element 3) and your LA is stating her needs can be met without an EHCP. Hence, why they’ve issued a “My Support Plan” which is not a legal document.   

You’ve mentioned that you are going to be starting the appeal’s process, you may find the ASK IPSEA page on our website helpful or contact IPSEA.org.uk directly. IPSEA provides free, independent, legally based advice and support to parents who have children that have Special Educational Needs and/ or disability as they navigate the education system. 

 

Late EHCP drafts and extensions timescales for amendments

I was told I'd been sent a draft EHCP at the end of July which I'd not received. On 8 August, the day before we went abroad, I emailed asking for another copy and verified my address.

I did not receive a draft until 30 August. I'd already said that I'd like an extension on responding giving me two weeks from the schools returning so I could consult, but I've received this response:

"I can agree a further extension to 16th September but must make you aware that to do so would not be compliant with the Code of Practice; the summer holiday is not an exception to statutory timescales unless we are seeking specific advice from the school, e.g. awaiting a response to a consultation. If this is acceptable to you, I will await your response on or before 16th Sept. "

I can find nothing about asking for an extension not being compliant with the Code of Practice. Are you aware of anything? I feel it's only fair to be able to discuss the draft with my son's current school and transition options for next year - two weeks is such little time anyway.

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Helen answers

I think that the problem here is that the local authority has used up all the time in the statutory timescales for issuing a final EHCP by not getting the draft EHCP to you when they should have done.

When they talk about extending your time to comment not being compliant with the CoP, they are thinking about the legislation that allows for the timescales to slip in limited areas over the summer holidays e.g. getting reports from professionals, as so many of the relevant professionals may be term-time only or taking holidays. It is true that there is no provision in the legislation or CoP for this for parents' comments, unless there are exceptional personal circumstances affecting you or your child (and sadly, I don't think that non arrival of a draft EHCP fits this) or you are away for a continuous period of over 4 weeks.

However, as you did not receive the draft EHCP until 30 August, by insisting on sticking to the statutory timescales, the authority is certainly moving against the spirit of the CoP as you now only have limited time to comment, through no fault of your own. If the authority had pulled their finger out and resent the draft EHCP on 8 August, things would be different, but as it took them 3 weeks to do so, I think it's worth putting pressure on them to recognise that this difficulty is due to the authority not taking corrective action (resending the draft) quickly. I'd suggest contacting them emphasising this and saying that you will accept a slight overrun on the statutory timescale in order to allow you time to comment properly. They will be keen to hit the timescales, but there is no actual penalty to a local authority if they don't, whereas in this situation there could be a penalty to you and your child if the EHCP is finalised and it is not right.

If the authority will not agree to this, I would ask them for a meeting to discuss the draft EHCP. The CoP says that the authority must meet with you to discuss the EHCP if you ask, and you can then press the point that you don't have sufficient time to think about the EHCP and hopefully deal with any concerns or questions you may have, or come up with an agreed approach to move forward. For example, the authority could issue the final EHCP by the deadline, but agree to reissue with further tweaks once you have been able to get your thoughts in order.

I hope this helps

What does a good description of needs in the ‘Independence’ section look like?

My 18-year-old daughter's statement is transferring to an EHC plan. We have waited over 24 weeks, (despite chasing it) to receive a very poor draft. We commented on the draft and were told new assessments would now be sought and included. One week later, a call from the head of young people's service to say they needed to finalise this plan to show to the panel. It would be an 'interim' EHC and would they would add in the assessments later but they now needed to finalise it because it was past 20 weeks!  They eventually backed down and we are ensuring the new assessments are included.

My question is, do you have any links or examples of what a good description of needs looks like in relation to the independence and self-help section? My daughter has had a social care assessment and I know this should be included here but it was in a box-ticking format rather than written, for her personal budget.

Helen says:

I am pleased to hear that your authority agreed to wait for the extra assessments as, whilst the timescales do matter for efficient and timely completion of EHC Plans, an EHC Plan that doesn't have the necessary detail is not much help for planning or making decisions about your daughter's next placement.

Every authority is required to develop their own local style of the plan in consultation with parents, but they must have the lettered sections (A to K) as these are the legal requirements.

Section B must identify all of your daughter's special educational needs. The outcomes in section E should focus on preparing for adulthood and developing independence and self-help skills, and, whilst set out differently, contain detail of the overall aim, and the smaller steps that will be worked towards to achieve that aim. Outcomes in an EHC Plan are intended to be SMART (specific, measurable, achievable, realistic and time-bound), and to set out the difference or benefit that will be made to your daughter by the provision that is in place. So, rather than saying that she will develop self-help skills, the outcomes should be clear about what your daughter will be able to do and when it is anticipated that the support will enable her to do. Each outcome must then have appropriate provision set out in the EHC Plan that will help her to achieve this.

The vast majority of the provision in an EHC Plan that is working towards self-help and independence skills will be counted as special educational provision (section F), rather than social care (sections H1 and H2) or health provision (section G), and this is because it is training or educating the young person. This is something to look out for - only the provision in section F has a right of appeal to the SEN Tribunal if you do consider it not to be suitable or sufficient, and that is the only provision that is fully legally enforceable. The provision in section F needs to be specific - a good rule of thumb is to think about whether you can picture your daughter's day in school or college i.e. can you tell from the provision what support and adaptations she will be getting. If you can't, then the provision is probably not sufficiently clear and specific. I think that the Hertfordshire example EHC Plan is the better example of special educational provision in section F as it provides it a higher level of detail and specificity.

Don't forget your local Information, Advice and Support (IAS) Service, which used to be known as Parent Partnership. They should be able to help you check that an EHC Plan is sufficiently detailed. IPSEA has a helpful checklist for checking an EHC Plan on their website at: https://www.ipsea.org.uk/what-an-ehc-plan-contains

Whose responsibility is it to source my daughter’s provision within her EHCP?

After a long battle, we have now an up to date Educational Psychology and Occupational Therapy (OT) report to inform the EHCP. My daughter is 18 and in her last year at a special school. The OT report has made recommendations that 18 x 1 hr sessions be put in place to train staff to deliver a program and the LA have agreed. I have just found out that the school are now responsible for going out to tender for the OT provision.

I am horrified as the school have not been following the statement nor did they carry the EHCP assessment effectively. I asked for amendments and we now have a robust plan with needs and provision itemised.

However, the problem is making the school carry it out.  In addition, I was notified that the LA did not send the school a copy of the reports. When I challenged the LA on this, they said they were instructed by tribunals to NOT put lots of detail in the EHCP and not to send professional reports to school.

My daughter leaves at the end of May 17 so I need the provision to be put in place immediately.

  1. What leverage do I have on school/LA to make them source the OT
  2. Ensure the school carry out the provision as detailed in the EHCP?
  3. If the EHCP says 1:1 for literacy and numeracy, should I make school fund it or go back to LA to request more funding if they say they do not have sufficient?

Marguerite says:

Section F is where the special educational provision must be set out.

  1. The SEND Code of practice 9.69 provides more detail. Provision must be detailed and specific and should normally be quantified, for example in terms of the type, hours and frequency of support and levels of expertise. Provision must be specified for each and every need specified in section B.s.21(5) Children and Families Act 2014 (the Act) is an important section as it informs you about health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision). Provision such as speech and language therapy and occupational therapy, needs to be included in Section F. If included in this section a LA has the legal duty to secure this provision even if the local health care or social care provider delivers it in practice.

Please ensure your daughter’s Occupational Therapy is in Section F!

IPSEA have a EHCP checklist you can use to check the content. You can download it from here:

https://www.ipsea.org.uk/what-you-need-to-know/ehc-plans/draft-ehc-plans

2.The Local Authority has a statutory duty to secure the provision specified in Section F of the EHC Plan s.42 Children and Families 2014 (the Act). Whilst a school or college will often be delivering it in practice, this duty will mean that if the school or college can’t or won’t secure this  provision  then  the  Local  Authority must do so.  This may happen when section F is not adequality specified.    If you feel the school isn’t delivering the provision you can complain to the Local Authority.

You’ll find a model letter from IPSEA here:

https://www.ipsea.org.uk/what-you-need-to-know/ehc-plans/final-ehc-plans-and-enforcement

3. If section F within your daughter’s EHCP states 1:1 literacy and numeracy, then my response above still applies.

Disclaimer: Helen and Marguerite have both completed IPSEA legal training courses. Marguerite is also an IPSEA volunteer. These answers can be used on as general advice about the SEND system. However, please DO NOT rely on this advice for Tribunal or other court appeals. It is vital that, in these cases, you seek your own personalised legal advice. We cannot be held responsible if you use this general advice in a court of law as it was not prepared for you in particular, or with knowledge of your particular case.


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