SEND Legal query answers

Please note: These questions are answered by the team at IPSEA Charity, who are trained in SEND law, not by Special Needs Jungle. If your query is urgent, please contact them directly. 

EHC Plans

Applied for Statement, now at Appeal, should it be a Statement or EHC Plan?

Parent Question:

I am helping a family go through the appeal statementing process. We are collecting new evidence and collating existing.  The statement application was rejected in May of this year, so we are still talking about obtaining a statement, although as I understand it new statements can no longer be initiated, as EHC Plans are now in existence. So are we following Statement rules or EHC ones?

ipsea answers

IPSEA Answers:

I presume you are at the first stage – requesting a statutory assessment and that is what the LA is refusing to do? Before a statement under the old system or an EHC plan is issued then a LA must carry out a statutory assessment of a child or young person’s needs. Please look at the IPSEA website to see if this is in fact what you are doing. If you are appealing this decision and the original application was made before 1 September 2014 the Tribunal when they hear the case will be considering the test under the old law. If they find in your favour then (if parents agree) the Tribunal can order the LA to carry out an EHC needs assessment under the new law. Otherwise, the Tribunal will order the LA to carry out the old statutory assessment process under the old law. If this is something that you are not familiar with then please seek advice from someone who does know. It is complicated at the moment for these cases that were mid-way when the change happened. If you get it wrong the family’s appeal may well falter as a result.
Can an EHC Plan be issued without an Educational Psychology assessment?

Parent Asks:

Our LA has agreed to assess for EHCP but since COVID-19, have told us that the Educational Psychologist Service has reviewed our evidence and feel that there is enough evidence for them to support the EHCP without their input and are happy to write to LA to say so. The LA is asking if we would like to proceed without EP Assessment. Please can you tell me if the LA have a legal obligation to provide us with an EP assessment?

 

IPSEA Answers:

The deadlines which previously applied to LAs when considering EHC needs assessment requests have been temporarily relaxed as a result of the  Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 (the ‘Amendment Regulations’), which amend the timescales in the SEN and Disability Regulations 2014.. Where it is not reasonably practicable or it is impractical for an LA or other body to meet certain deadlines “for a reason relating to the incidence or transmission of coronavirus (COVID-19)”, they must instead complete that step as soon as it is practicable for them to do so.

However, as the guidance on EHC needs assessments and plans during the COVID-19 crisis makes clear, the modification is to the timing of the EHC needs assessment process, not the process itself. When an LA carries out an EHC needs assessment they must obtain all of the information set out in Regulation 6(1) of the Special Educational Needs and Disability Regulations 2014 (the “SEN Regs”).This includes “psychological advice and information from an educational psychologist” (regulation 6(1)(d). The advice provided must be clear, accessible and specific (see paragraph 9.51 of the SEN and Disability Code of Practice). In particular, it should address the child or young person’s needs, the special educational provision required to meet those needs, and the outcomes which this provision will aim to achieve.

It may be that the Educational Psychologist Service is able to provide this information without meeting your child, having reviewed your evidence, in which case you may decide to accept the LA’s suggestion. You should consider, however, that when the EHC needs assessment has been completed, the LA will decide whether it is necessary for provision to be made in accordance with an EHC plan in the light of the information obtained. There is a risk that if insufficient information is obtained as part of the EHC needs assessment the LA will be more likely to conclude that an EHC plan is not required.

Can I apply for an EHCP if I home educate my daughter?

Parent asks:

I am the parent of a 10 year old girl with high functioning autism. My daughter's current school have been unable to offer extra support, and as a result of sensory issues and the anxieties caused by this, things have grown progressively more unbearable for her and now she feels unable to attend at all.

I am in regular contact with the SENCO at school, and we are also under the care of a Clinical Psychologist.Unfortunately, though, we find ourselves in a state of limbo, as things progress very slowly with school. My daughter has been at home (other than a few hours at school here and there) since September 2016, and as yet we do not have an EHCP in place.

I am unsure of the right course of action with regard to my daughter's future education. I have considered officially home educating, and would be happy to do this temporarily, but do not see this being the right course of action across her secondary education. I think she would benefit from attending school but only if her basic needs are understood and facilitated. She is a very bright, intelligent girl, and sadly her schools, thus far, have not helped her to reach her full potential.I would rather de- register my daughter and officially home educate -BUT -what happens when she is ready to attend high school?

Can I apply for an EHCP at that stage, alongside an application to attend a special school? I do not need an EHCP to home educate, but I think one will be needed to get my daughter into the right secondary school.I am afraid that by de-registering my daughter from her current school, I will lose my chances of getting an EHCP.

To confuse things further, I phoned a home education helpline and was advised not to get an EHCP because this could limit my control over the situation, e.g. if a particular high school is named in it, but my daughter finds she is very unhappy there, an EHCP makes it extremely difficult to remove her from the school.

ask ipsea

IPSEA Answers:

You raise a number of difficulties that unfortunately we come across quite commonly.  When a child or young person’s special needs are not properly met at their current school, the placement can break down.

Covering the issue of the EHC plan first, the law gives parents the right to apply directly to the local authority for an EHC assessment.  You can write to your local authority explaining your daughter’s particular special needs and challenges, that her current school has stated it cannot meet these needs (and she is currently unable to attend) and that in your opinion she has special educational needs for which special educational provision is necessary.  The local authority is legally required to reply to you within six weeks to let you know whether they agree to carry out an EHC needs assessment.  If they refuse you have the right to appeal that decision.

It appears that the advice from the home education helpline has been given on the basis that your preference is to home educate. From your email, it appears that while you would be happy to home educate temporarily if a more suitable provision is not available, this is not your long-term preference. The test for carrying out an EHC needs assessment is whether the child or young person has or may have special educational needs, and whether it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan. Given that your daughter’s current school is currently failing to meet her needs it seems likely that she requires additional provision.

If you decide to home educate there is not necessarily the same obligation upon the local authority to provide special educational provision.  However, it could be possible to make a case that ‘education other than at school’ (home schooling in your case) be made, enabling you to access special educational provision at home.  This is only possible where the local authority is satisfied that it would be ‘inappropriate for the [special educational] provision to be made in a school’.   To meet this test you would need to demonstrate that education in a school would be inappropriate for your daughter.  The way that that is established has been confirmed by the case of TM v London Borough of Hounslow[2009] EWCA Civ 859 which said that to answer this question all the circumstances of the case must be looked at including the child’s background and medical history; the particular educational needs of the child; the facilities that can be provided by a school; the facilities that could be provided other than in a school; the comparative cost of the possible alternatives to the child’s educational provisions; the child’s reaction to education provisions, either at a school or elsewhere; the parents’ wishes; and any other particular circumstances.

If you did choose to home educate without a plan with a view to later applying before secondary school you would need to be aware that the process from initial application to finalising the plan takes up to 20 weeks.  If the Local Authority were to refuse your request for an assessment or refuse to issue a plan that time could be extended if you had to exercise any rights of appeal.  It will be important to bear in mind these time frames when considering the options available to you.

With regard to the plan itself, a Local Authority is required to set out all the special educational provision needed to facilitate the child’s learning, which in your daughter’s case should include strategies to manage her anxiety and support her with any additional needs she has related to her autism.  A placement should be sought that will be able to meet these needs.  Your choice of school will be given preference by the local authority subject to some narrow conditions which the Authority could use to dislodge it (we have not covered these in our answer today).

So to summarise our advice regarding an EHC plan; you can apply to the Local authority yourself for an assessment.  The Local Authority should tell you within six weeks whether they agree to assess your daughter.  If they assess and issue a plan this should include detailed and specific provision to meet your daughter’s special needs.  You will have an opportunity to tell the authority your choice of school.  The Local Authority is legally required to ensure the special educational provision in the plan is delivered by the school.   If you wish to home educate and have an EHC plan you will need to demonstrate to the local authority it would be inappropriate for your daughter’s special educational provision to be made at school.

Turning to the issue of your daughter’s current education, we are sorry to hear that she has not been at school since September due to her anxiety.  Where a child is unable to attend school due to ill health (and anxiety can be considered ill health), the local authority has a legal obligation under Section 19 (1) of the Education Act 1996 to provide suitable alternative educational provision.  An alternative could include tutoring at home or a placement at a special unit.  We would advise you to write to your Local Authority requesting alternative education and quoting Section 19.  You may wish to provide medical evidence of your daughter’s anxiety which is preventing her from attending school.

You should also be aware that you do have a legal duty to secure your child’s regular attendance at school and a failure to do this could result in prosecution. You should ensure the school is recording her absences as authorised absences in order to mitigate this risk.

If you go to the IPSEA website you will find a number of resources that can help you, including a model letter that you can send to the local authority requesting an EHC assessment.  We wish you the very best of luck.

Can I see the minutes from the EHCP decision panel

Our Daughter's EHCP has gone to panel. We are disappointed in panel verdict. I have asked SEN Officer for a copy of the minuted from the panel meeting, but she is refusing to forward a copy without any reason being offered.

Is this right / correct?

ask ipsea

IPSEA says:

It is not clear how your daughter’s EHCP has gone to the panel; for example, if there has been a recent annual review meeting or the EHCP was in draft and is now ready to be finalised both scenarios result in appeal rights.

Therefore, it is important to check whether the circumstances in which the EHCP has gone to the panel will result in an appeal right to the First tier Tribunal for Special Educational Needs and Disability. If you are in doubt please book a call back with an IPSEA advisor to check your rights.

Under the Data Protection Act 1998, your daughter has a right to obtain a copy of the information that is held about her. This is known as a subject access request.Information about children may be released to a person with parental responsibility. However, the best interests of the child will always be considered. So, it is the child who has a right of access to the information held about them, even though in the case of young children these rights are likely to be exercised by those with parental responsibility for them.

This right of subject access means that you can make a request under the Data Protection Act 1998 to the local authority. You can ask the local authority to supply you with copies of both paper and computer records and related information.

However, it is important to remember that not all personal information is covered and there are ‘exemptions’ within the Act which may allow the local authority to refuse to comply with your subject access request in certain circumstances.

For further information about data protection rights and to see an example of a template letter you could use to request your daughter’s information please see: https://ico.org.uk/for-the-public/personal-information/

Can my child attend a school outside my local area?

Parent Asks:

I would like my daughter to attend in a different borough to where we live. We have just completed the EHCP and have named a school. She is profoundly deaf, and although our borough has provision for deaf children, it would be near impossible for me to drop and pick my other children to both schools. Can I be forced to choose a school in my borough?

IPSEA Answers:

Parents or young people have a legal right to request that a particular school or college is named in an education, health and care (“EHC”) plan (or to express a preference for an independent school, college or other institution).

The parent or young person has a right to request any of the following types of school or college:

  • A maintained school or nursery (mainstream or special)
  • An Academy (mainstream or special)
  • An institution in the Further Education sector
  • A non-maintained special school
  • A section 41 school.

These are listed in section 38(3) of the Children and Families Act (“CAFA”) 2014.

If the school that you have asked to be named is one of these types of schools the only reason the local authority can refuse the request is if:

  • The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) of your child; or
  • The attendance of your child would be incompatible with the provision of efficient education for others; or
  • The attendance of your child would be incompatible with the efficient use of resources.

This is set out in section 39(4) CAFA 2014. The LA must prove that at least one of these conditions applies in order to dislodge your preference. If you are not sure what type of school you’re asking for, check on the government website Get information about schools - GOV.UK

Use this link to find out more about Choosing a school with an EHC plan. If the LA finalises the plan naming a different school you will be able to appeal against the school named in the EHC plan.

LAs are required to arrange free, suitable, home to school transport for children of compulsory school age who are ‘eligible’, to their nearest suitable qualifying school (section 508B of the Education Act (“EA”) 1996). Your LA may argue that because you have chosen a school in another borough, they are not required to provide transport. However, the LA will have to establish that the school they wish to name is in fact suitable and they will also have to show that your preferred school would be an inefficient use of the LA’s resources. Find out more about the LA’s duty to provide transport to children with special educational needs here.

 

Can my Home-Ed Child qualify for an EHC Plan?

Parent Question:

If a hitherto perfectly well, capable, social and intelligent child loses most of their sight during just one year, and at the same time due to other health reasons can only access home tuition - Does this not qualify them for an EHC Plan?

ipsea answers

IPSEA Answers:

Highly likely. The question is whether they have or may have SEN and whether they may need to have an EHC plan put in place for them. This is the legal test contained in Children and Families Act 2014 s. 36(8) for triggering the LA to carry out an EHC needs assessment.

After the LA have completed the EHC assessment process they will have enough evidence to decide whether the special educational provision that has been identified needs to be made via an EHC plan i.e. that it is more than a mainstream school or college in England could be expected to provide from their existing resources – money and expertise. From the little you have told me is highly likely that this child would trigger this first step in the process. Look at the IPSEA website for further information and a model letter you can use to trigger the request. Please call for individual advice.

Can My LA Refuse To Issue A Personal Budget?

Parent asks:

I was recently refused a Personal Budget (for swimming lessons for my 16 yr old) they are not something his school provides nor was it on the placement offer and they are not intending to start them. I was refused under the 'Head would not agree to part of the Personal Budget Regulations, which I know is completely wrong.

  1.  should the SEN team be doing the assessment? They are not social services and are in completely different buildings and departments
  2. Are the short break assessments different to the Chronically Sick and Disabled Persons Act (CSDPA)1970? If so, would I need to stipulate the difference in a request?
  3. A am I correct that the assessment I want is the CSDPA and I would write to the LA Safeguarding Board?

I have researched the  LA's safeguarding boards children's assessment chronically sick and disabled act in all its varieties and wordings and it leads me right back to the SEN Team.  If I do have to go through the SEN team I feel there is no point, as their assessment I assume is made round the table.  The team is very clear on the difference between severe and profound and simply complex.  I do understand funding needs to go to those in the severity of needs first, but severe and profound are the only ones possibly getting support from my LA.

ask ipsea

IPSEA  answers:

The first thing to remember is that direct payments for social care and personal budgets for special educational provision are two separate things.

A personal budget in the context of special educational provision is a notional sum of money identified by a local authority, usually when an EHC Plan is being drawn up or amended, to cover certain provision.  Even if a personal budget is identified (and there are reasons why local authorities don’t have to identify a budget) this doesn’t mean that direct payments for such provision will follow: for example, direct payments cannot be made for goods or services to be used in a school without the express written consent of the head teacher (and this may be what happened in your case).

The assessments and policy you refer to, from your local authority’s website, seem to relate to social care services and you can also receive direct payments for social care provision.  This is outside of IPSEA’s area of expertise.

However, a young person with an EHC Plan will have a number of needs identified by health, education and social care and the law is clear that if the provision to meet a special educational need “educates or trains” the young person, then this is special educational provision and should be in section F of the EHC Plan.

Therefore, in the context you’ve described, if there is a special educational need which requires provision in the form of swimming lessons (for example if your son required a non- weight bearing form of PE or if learning how to swim and be safe in the water was an identified step towards independence and adulthood) then those swimming lessons could be specified in section F of an EHC Plan.

We’re not sure if the swimming lessons are currently identified somewhere in your son’s EHC Plan?  If they are, and they are in section F, then regardless of whether you’ve been given a direct payment and regardless of whether it’s within the school’s “placement offer”, your local authority has a duty to secure that this provision is made under section 42 of the Children and Families Act 2014.  If they are in H1 or H2 then you need to pursue your local authority’s social care department because their duty arises under the social care statutes and not the Children and Families Act.

If the swimming lessons are not specified in your son’s Plan, or are in the Plan but not in section F, then you can certainly try to get the special educational need which means your son requires swimming lessons (and the lessons themselves) specified in the Plan in sections B and F respectively. You will require evidence of the special educational need and of swimming lessons (and their frequency) being the provision to meet that need. The annual review is the best time to try to get changes made to an EHC Plan.

SaveSave

SaveSave

Can the LA use include my son’s savings as an income?

Parents Aks:

Our 16-year-old autistic son attends a residential school 38 weeks a year - coming home at holidays and weekends. 

At a recent CIC meeting, we were told that if he had any savings at the age of 18, the Council would claim them. Is this correct and is there a minimum he is allowed to have?

IPSEA Answers:

If your child is attending a residential school for educational reasons, i.e. because it has been agreed that he requires educational programmes to be delivered beyond the normal school day, or because it is the nearest suitable school, then his savings and income will not be relevant. The part of your local authority that carries out its education functions will continue to have a duty to secure special educational provision in the plan, and to meet the costs of the fees of an independent school or college, including any boarding and lodging where relevant. This is explained at paragraph 9.131 of the SEN and Disability Code of Practice.

The position may be different if the part of the local authority that carries out its social care functions currently pays for the residential element of your child’s placement. The local authority is under an obligation to provide the services necessary to meet the eligible needs of a young person and/or their carer. However, once a child reaches the age of 18 local authorities are likely to undertake a financial assessment to determine which, if any, of those services will be provided free of charge. The rules governing charging for adult care services are under the Care Act. It is the young adult's income that will be assessed, not the income of the parents. You can find information about how this works, including how savings are taken into account on

Can the LA withhold an EHCP until other strategies have been tried?

Parent Question:

Is it normal for an LEA to withhold an application for an Education and Health Care Plan for a number of terms until the school has tried other strategies first? My school has refused to request a plan for a little boy who has been diagnosed with Turrets as they say the LEA won't even look at the application until other steps have been taken and proven unsuccessful. Is this happening in other authorities?

ipsea answers

IPSEA answers:

Often a Local Authority (LA) will suggest that a period of time or a set of circumstances must be fulfilled or satisfied before considering the need to assess for an Education and Health Care plan (EHC Plan). IPSEA hear of these situations on a daily basis, for example a Local Authority may require two cycles of SEN support before assessing, that a child has had over £6,000 of support already in school or that they must be more then 2 years behind.

This however is NOT a legal requirement, but the LA’s own SEN policy. The legal test for whether the Local Authority must conduct an EHC needs assessment is in section 36 (8) of the Children and Families Act 2014. The test is that the LA must secure an EHC needs assessment (having considered the views and evidence of the parent or young person) if they believe
1. The child or young person has or may have special educational needs AND
2. Special educational provision may be necessary (in accordance with an EHC plan).

It is important to stress that this is the ONLY test that should be applied by the LA. We would therefore advise the parent to request an EHC needs assessment themselves. A model letter is available on the IPSEA website

Can the local authority change the wording of the provision in an EHCP?

Parent asks:

My daughter has recently had her statement transferred to an EHCP.  The wording of the provision used to specify " a specialist teacher visiting termly" but now it has been changed to  "a specialist teacher visiting when appropriate." Is there any case law I can use for this not to be changed? Have they broken the law or just acted underhand?

Helen answers:

What your local authority have done here takes away the legal obligation for the specialist teacher to visit every term, and means that if an unspecified person thinks getting them to visit isn't needed, no visits need be arranged. The SEN Code of Practice is very clear that provision should usually be quantified. On page 166 in section 9.69, the very first bullet point says:

Provision must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise.

So, in terms of specialist teacher time, the frequency of visits should be specified. Has the specialist teacher written recent recommendations saying how often the visits should be? If not, would be worth contacting them to ask for this.

The cases on 'statements must not be vague' and 'part 3 must specify hours' are the useful ones here for you. Whilst these cases relate to statements, the principles have carried across to EHCPs. In terms of case law, the best place to look is the IPSEA website at: www.ipsea.org.uk/what-you-need-to-know/important-case-law

Can we apply for an EHCP?

Parent asks:

My son is 12 years old and is currently in year 8 at secondary school. He has a diagnosis of Dyslexia and has been on the SEN register since year 3.  Provision provided at school consists of small class size (14) for English and use of  Lexia  3 times per week. He is a reluctant reader and has difficulties with his writing, spelling and comprehension. He also has short-term memory difficulties and requires some support in maths.

He is currently predicted e/f grades at GCSE in nearly all subjects and is making less than expected progress in English. We have requested additional support for him and we have discussed provision maps which are not SMART. We have discussed the use of audiobooks and e-books but this is frowned upon. During our meeting with the school, we specifically asked, 'despite best endeavours and high-quality teaching, our son is not progressing' (his effort grades are always A&B) can we apply for an EHCP? The Senco said we would not qualify. Do we apply for EHCP or try something else?

ask ipsea

IPSEA Answers:

We are sorry that you son is finding the situation at his school so challenging.  Under the new school support system, schools are required to ‘assess, plan, do and review’.  The impact of the school’s support and interventions should be regularly evaluated and revised, particularly where interventions are not working.  If the school is unable and/or unwilling to take any further action, then requesting an EHC needs assessment is always an option for you. To help you further understand this process we have set out below some information on the relevant legal tests.

The legal definition of a special educational need is whether a child or young person has a significantly greater difficulty in learning than the majority of others of the same age. The process for obtaining an EHC plan is that a parent or school can request the local authority to carry out an EHC assessment.  The legal test, which the local authority must apply in order to decide whether or not to assess a child, is whether the child may have special educational needs for which it may be necessary for special educational provisional to be made in an EHC plan.  This test is not particularly high and the local authority cannot apply blanket policies such as refusing to assess children with dyslexia, for example.  Each case must be considered on its merits and the legal test must always be applied.  If an assessment is refused there is a right to appeal that decision to the First-tier Tribunal (Special Educational Needs and Disability).  If the local authority goes on to assess the child they will then apply another test to determine whether to issue a plan.

To start the process you, as a parent, can write directly to your local authority explaining your son’s particular special needs and challenges, and that in your opinion he has special educational needs for which special educational provision is necessary.  The local authority is legally required to reply to you within six weeks to let you know whether or not it agrees to carry out an EHC needs assessment.

As part of the assessment process, the local authority will obtain evidence, including from your son’s school and an educational psychologist.  The assessment process is your opportunity to provide as much supporting evidence as possible about your son’s special educational needs.  Bear in mind that you will need to show that he has greater difficulty in learning than the majority of children of the same age.  You will also want to show that the current provision put in place by the school is not working and, if relevant, that the school is unwilling/unable to offer any other support.  Evidence of your son’s educational attainments will be useful.   As part of the assessment process, you can ‘reasonably’ request the local authority seeks advice and information from an expert or person who can provide evidence of your son’s special educational needs.  You could request a report from a dyslexia specialist.  We hope this information is of use to you.  Please do visit the IPSEA website for more resources on EHC assessments and plans.

Can we name a school in an EHC Plan that is 2 hours away from our home?

Parent Asks:

Our son (Y10) has an EHCP naming a local independent specialist school that has gone into liquidation. We are trying to find an alternative specialist school for him (when all schools reopen post-Coronavirus); where do we stand with his EHCP for a different school that's likely to be 2 hours' drive away.

 

Ask IPSEA:

From what you have said we are assuming that the school you have in mind is a residential school and therefore likely to be either a wholly independent school, a non-maintained special school or a section 41 school, as opposed to a local authority maintained school or academy. The answer to your question will depend on whether it is a wholly independent school, a non-maintained special school or a section 41 school.  If you are not sure what type of school you’re asking for, check on the government website Get information about schools - GOV.UK

If it is a non-maintained special school or a section 41 school, you have a right to request it because it is in the list at section 38(3) of the Children and Families Act (“CAFA”). The only reason the local authority can refuse the request is if:

  • The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) of the child or young person; or
  • The attendance of the child or young person would be incompatible with the provision of efficient education for others; or
  • The attendance of the child or young person would be incompatible with the efficient use of resources.

 

This is set out in section 39(4) CAFA 2014. The LA has to prove that at least one of these conditions applies in order to dislodge the parent or young person’s preference.

If the school is a wholly independent school, you are still able to make representations for it but you do not have the same condition right to request it. The LA must have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure (section 9 Education Act 1996).

 

The onus will be on you to prove that none of the schools the LA is offering can meet your child’s needs, orthat the cost of the placement will not constitute unreasonable public expenditure.

 

Public expenditure includes all the costs to the public purse of the placement not just those incurred by the LA education budget. This can include social care costs, health costs and any other costs incurred by any public body.

 

If you cannot show this, the LA is under no obligation to look at independent provision. It does not matter that the independent setting proposed is an excellent school and/or better suited to your child’s needs than the school the LA has in mind. LAs are not bound to offer a child or young person with SEN ‘the best’ provision to meet their needs – only what is necessary to meet their needs.

 

In practice, the most important point to prove is not that the independent setting is better than the LA’s proposed school or college, but that the school or college offered by the LA cannot meet the child or young person’s needs. Where a parent or young person is requesting an independent setting, they will generally need evidence from a professional as to why the independent setting is the only school or college which can meet the child or young person’s needs.

 

Additionally, there must be an offer of a place from the independent setting. Unlike the section 38(3) schools listed above, an LA cannot order an independent school to accept a child or young person.

 

The courts have considered situations in which an independent setting should be named in an EHC plan, and given examples of when a setting would be considered an unreasonable public expenditure. You can read about these cases in our case law section.

 

Confused about the sections in an Education, Health and Care Plan

I have been told that on the new EHCP it is illegal to have the provision (section F) listed directly under the outcomes.

There is no general section F for provision needed to cover needs it is just straight under each outcome. Is this correct as that is the format the authority I am dealing with use?

Clearly, I am concerned not to sign something off that isn't right and can then lead to misinterpretation or refusal to meet a need as the provision was then said to be linked to a specific outcome later down the line.

Hope I have made sense!

ipsea answers

IPSEA replies:

There is no prescribed format for an EHC Plan at present, (July 2016) so each LA has devised their own.

The important thing is that all the sections prescribed in the SEN and Disability Regulations 2014 (as amended) are included and separately identified.  However, although they must be in separately lettered sections, they don’t have to be in alphabetical order.

If there is no separately labelled Section F in your draft EHC Plan then this wouldn’t be compliant.  However, if there were, for example, separate boxes labelled E and F next to each other (or above and below one another) then this would comply with the requirements.

https://www.ipsea.org.uk/pages/category/education-health-and-care-plans

The crucial thing is making sure that all your child’s SEN are specified in Section B with special educational provision to meet each need specified and quantified in Section F.

Confusion over the school’s SEN funding request at our child’s review

Parent's Question:

Three months ago we had the EHCP review meeting for our son (Year 1, ASD, mainstream school).

On the last day of last term we were given the review forms to sign by our SENCO to return to LA. We were told at that point that the school would be requesting more LA funding and noted the review form had new wording subsequently added, which is :

"The school will seek to request full funding for 32.5, as this is the provision that ****** requires in order to enable him to make progress in a mainstream setting (costing and provision details attached)."

Consequently, we asked if we please could have another meeting with school regards this, which we hope to do soon.

Please can you advise: 1. Is this additional wording something we should be wary about signing we agreed to? (We strongly feel his needs are currently best met at current school . We would like the school to get as much as funding as possible, but this wasn’t discussed at review meeting, and we are concerned it might sound like the school is constructing that he can't progress without the added funding. 2. What happens regards how long this has taken to return the EHCP review form to the LA? (It is now three months since review meeting.)

Many thanks for your advice.

ipsea answers

IPSEA answers:

In order to fully address the concerns in this question, we have broken down each query:

  1. The wording from the school

First a question. Is it already specified in Section F of the EHC Plan that your son must have 32.5 hours of individual learning assistant support each week? If not, what the school is in effect requesting is that the EHC Plan is amended to specify this provision. At this time it only a request, it is therefore not agreed by the LA.

A review of an EHC plan can make amendments to a plan if agreed and signed by both parties. If the provision is agreed the Local Authority must provide what is specified. How the provision is funded is a matter between the school and the LA. (under section 42 of Children and Families Act 2014).

If your child needs the provision (and couldn’t progress without it) then this should definitely be in EHC plan anyway – once it is in the plan, then funding follows.

  1. Attendance at your chosen school

The EHC plan will specify the school at section I – if the school your son is attending is the stated school, then the LA must continue to fund the provision in this school.

  1. Potential delay and length of time since the review meeting

You don’t say what type of review this was - an annual review of the EHC Plan or a transition review as part of moving from a statement over to an EHC plan. The timescales would depend upon the nature of the review.

If this is an Annual Review the LA must decide on what it is doing (leaving it the same, ceasing plan or making amendments) and notify within four weeks of review meeting in accordance with the SEN Regulations (20(10)).

If this is a transfer to an EHC plan then the timescales are that the LA must issue a finalised EHC plan within 18 weeks of the date when it notified the parent they were doing the EHC needs assessment as part of the transfer: Transitional Regulations (21(3))

You need to go back to the LA and ask them to confirm their decision following the review and confirm whether they have accepted the school’s recommendations that your son needs 32.5 hours of individual support each week. Once you receive the decision letter, if you do not agree with what the LA has decided you will have a right of appeal to the SEND Tribunal.

How Soon After The Annual Review Meeting Should We Receive A Response From The LA?

Parent asks:

When the local authority is amending the EHC plan after the annual review meeting, the SEND Code of Practice states they have to send the original notice within eight weeks. They should also send me a copy of the non-amended plan and an accompanying notice providing details of the proposed amendments, including copies of the evidence used to support the proposed changes.

We received the original notice five weeks ago, we have written to the local authority requesting the necessary information and to date have not had a reply or acknowledgement.

ask ipsea

IPSEA answers:

Once the local authority has held the annual review meeting it is then legally required to send a notice within four weeks stating whether it proposes amending, ceasing or continuing the Plan in its existing form. If the local authority proposes to keep the Plan as it is or cease to maintain the Plan, this will generate a right of appeal to the Special Educational Needs and Disability Tribunal. However, if the local authority decides to amend the Plan, there is no time limit by which it must send the amendment notice. The code of practice simply states that where the decision is to amend, the local authority should start the process of amendment without delay (paragraph 9.176). It is only when the notice with proposed amendments to the Plan is sent, that the local authority needs to comply with an 8 week deadline to finalise the amended Plan. This means parents can find themselves in a situation where the outcome of the review is to amend the Plan, but they are then left waiting for a considerable period of time for the actual amendment notice to arrive.

Our advice in this situation is to follow up your letter to the local authority requesting it substitute its original decision to amend the Plan with a decision to leave the Plan as it is. This will bring forward your right to appeal, as the local authority’s failure to send the amendment notice is frustrating your appeal rights. You can then ask for any amendments to your child’s Plan to be determined by the Special Educational Needs and Disability Tribunal.

If my ‘Post 19’ daughter gets an EHCP will her college place be funded?

A parent asks

My 22 year old daughter is at college. LA have refused to assess for an EHCP and whilst we are going to Court on this one, there is one question that nobody seems able to answer.

LA have 100% acknowledged her SEN High Needs status but will not grant the EHCP. As she is now Post 19 years, she will need to pay £3870 for her course next year. If the LA are at least agreeing her SEN status, will she be expected to pay if education is free for 0-25. She has no income so will not be able to continue on the course she is at present studying.

ipsea answers

IPSEA answers:

It appears that the LA may have agreed that your daughter has a special educational need, but that they do not believe that an assessment is necessary. The legal test for whether the Local Authority must conduct an EHC needs assessment is in section 36 (8) of the Children and Families Act 2014. The test is that the LA must secure an EHC needs assessment  (having considered the views and evidence of the parent or young person) if they believe:

  1. The child or young person has or may have special educational needs AND
  2. Special educational provision may be necessary (in accordance with an EHC plan).

Further, Section 36(10 states that in relation to a young person over the age of 18, a LA must consider whether additional time is necessary compared to your daughters peers who do not have SEN.

It may well be that the LA have refused to assess your daughter. This is an appealable decision and if you do not agree with the decision, and you believe that the LA have failed to use the correct test, you should appeal the First Tier Tribunal. It is likely that they will concede the appeal once it is registered, as they have already identified her as needing high needs funding.

Section 8.53 of the Code of Practice deals with those young people who do not have an EHC plan and confirms colleges can charge for those – further details are available on the Skills Funding Agency website – a link to which is available in the Code of Practice. Until an EHC Plan is issued for your daughter she will be liable to pay the fees. You will need to take individual advice as this may change if she is in receipt of any disability-related benefits.

Is an EHCP more than a short-term target?

Parent Question:

I am concerned that the new SEN system focuses so closely on tiny, short-term targets (like an IEP) that it will be impossible to tie any service down to particular provision (e.g. termly support etc.) - they can just set a couple of activities (or may not even contribute). How can we ensure on-going assessment and support for needs without a fight every time the EHC is reviewed (this clearly needs to be quarterly at the most given the short-term nature of the targets)?

ipsea answers

IPSEA Answers:

This new SEND system should extend the long-term nature of planning for our children and young people – so I am a little concerned that you seem to have heard it will only be based on short-term targets. Like a statement of SEN, a new EHC plan will be reviewed annually but unlike a statement it should in section A clearly outline the aspirations you and your child have for their future. These can be as long-term as you like. All outcomes and provision in the EHC plan across education, health and social care should flow from these aspirations. This is long-term planning or mapping.

Whilst the specification of education, health or social care provision may need to change to reflect changes in the development of or information about your child this must not be done without evidence. The new system should give you more security not less.

Is my child with a mental health condition eligible for an EHC Plan?

Parent Question:

My child has a physical difference which has caused him to have low self-esteem at school - a congenital hand deficiency. She does not need too much support at his mainstream school for this physically as she manages so well, in fact I have only just been able to get the school to put her on the SEN register after 4 years at the school! However she has now developed OCD and is not doing very well with writing and maths and I am more concerned about her OCD than her limb deficiency. Would she be eligible for an EHCP even though she doesn't get DLA or have a statement or anything? It seems children with visual differences slip through the net as they don't need enough help physically?

ipsea answers

IPSEA replies:

What is most important is to look at her progress at school and if she is experiencing any issues first discuss them with her teacher. Remember educational progress is not just about academia – it includes her self-esteem. If she has now been identified as having SEN then the school should have already shared with you their individual SEN Support plan for her – this maybe in the form of an IEP (Individual Educational Plan) or in some other form but it must detail what needs (i.e. difficulties in learning) they think she has, the provision they have put in place to meet those needs and then the outcomes they expect to be achieved and when.

By reviewing the SEN Support Plan with the school – depending on her age I would expect at least once a term – then if she is not progressing you can discuss whether they feel she needs to have an EHC needs assessment. Not receiving DLA or having a statement is irrelevant. What is most important is to assess what are her needs in respect of writing, maths and other learning then support she needs to have put in place to progress and reach her full potential. Start with requesting a meeting with the school to discuss your concerns and the support put in place. If the meeting and documentation show that she is not progressing (and her development of OCD seems to show this is the case where her mental health and well-being are concerned) then the school should put in more support or, if they can’t, should request statutory assessment.

Tania adds: If you haven't already, take a look at the charity Reach. RareConnect also has a patient community for people living with limb differences here

Must schools spend £6000 on support before requesting an EHC assessment for a child?

We have pupils with a hearing loss to whom we provide a high level of support from the sensory support service. When schools apply for an EHC plan they find it difficult to evidence where they have spent £6000 as they are not able to put our service down, as it is not a direct cost to them. Is it a legal requirement for them to have spent this amount of money in order to progress with assessment.

The LA also ask that the children have a 2 year delay academically. This is not always a true reflection of the needs of the child.

ipsea answers

IPSEA answers:

Neither of the criteria you have mentioned are legal requirements for securing an EHC needs assessment.

The legal test that all LAs must apply is set out in s. 36(8) of the Children and Families Act 2014.  No other test applies (and this is the only test that the SEND Tribunal will consider if the LA refuses to assess and the parent/young person appeals).  The test can be summarised as two questions:

  • does the child/young person have or may they have special educational needs (SEN); and
  • might it be necessary for special educational provision (SEP) to be secured for these SEN under an EHC Plan?

If the answer to both these questions is “Yes” then the LA must carry out an EHC needs assessment.

Schools and parents need to demonstrate that a child/young person has or may have SEN and these may require SEP to be made under an EHC Plan.  The evidence required to do this will be different for every child/young person and will depend on the nature of that child/young person’s particular SEN and circumstances.

Remember that the real work of investigating the nature and extent of a child/young person’s SEN and the provision these require is done by the LA during the EHC needs assessment itself!

My daughter has dyslexia, can I apply for an EHCP?

My daughter is 12 (year7) she is diagnosed as severely dyslexic with additional SpLD she is currently working at 3 years behind. She has reports from Ed Psych, Occ Therapist, Speech and Lang, Physiotherapist and an external SpLD specialist. She has not had an EHCP and I believe that she should have one. I have been told that now she has moved to secondary school that the process will start again and that the EHCP should have been done whilst at Primary school. Is this correct? Do we now need the Secondary school to do more assessments, more reports to then find out she is even further behind? It is apparent she needs to go to a specialist school that can cater for her needs.

ipsea answers

IPSEA says:

It’s not clear whether an EHC needs assessment was started whilst your daughter was at primary school, however, you can make the request at any point now and IPSEA has a model letter which you can use to make the request:

https://www.ipsea.org.uk/what-you-need-to-know/model-letters/model-letter-1

Remember that the school aren’t obliged to get new information before a request for an EHC needs assessment can be made:  from what you’ve said, the information you have is likely to be sufficient to meet the legal threshold for carrying out an EHC needs assessment.

Once a request for an EHC needs assessment has been made, the LA has 6 weeks to decide whether or not to assess.  If they do assess but after conducting an assessment decide that an EHC Plan isn’t necessary, they have to notify you within 16 weeks of the date of request.  (You would have a right of appeal to the SEND Tribunal at either of these stages.)  If the LA decide to issue an EHC Plan, you have to receive that final EHC Plan within 20 weeks of the date of the request.

If the LA decide to assess, then whether or not new information and advice was necessary would depend on whether you, the LA and the person who provided the current advice agreed that it was still “sufficient” for the purpose of an EHC needs assessment.  If the reports you have are out of date or your daughter’s needs might have changed, new assessments might be important.  Bear in mind the LA will be working to a statutory deadline so these shouldn’t drag on.

In the meantime, the school still has a duty to use its best endeavours to secure the special educational provision your daughter needs.  The reports and assessments you have should inform this SEN Support.  You can find out more about SEN Support in Chaper 6 of the SEN and Disability Code of Practice 2015:

https://www.ipsea.org.uk/file-manager/SENlaw/send_code_of_practice_january_2015.pdf

My daughter’s draft EHCP is vague

I have just received my daughters draft EHCP. I have read it and am a bit worried that it is not totally accurate. For example, they have stated the type of school setting she needs under 'non-education health needs'. Should this not be under 'education'? This is just one example of the comments I have noticed which I have flagged up as not quite right.

My main question to you though is, what exactly needs to be in the report, specific words etc. if I want to secure a "special" school for my daughter? I am worried that my current EHCP is not specific enough and a bit vague.

Marguerite says:

SEN Reg 13 states that the parent or young person must be given at least 15 days in which to give views and make representations about the content of a draft plan. You also have the right to request a meeting to discuss the content of the draft EHC plan (Special Educational Needs Code of Practice 2015 9.77).

I am not sure how the LA could have named a type of setting when they issued the draft EHC plan. Within section 38(5) of the Children and Families Act 2014 it makes it clear that when a draft EHC plan is sent to parents or the young person it must not name a school or other institution or specify a type of school or other institution.  Why? Because the EHC plan, especially the provision must reflect the needs of your daughter from the assessment advice gathered during the statutory process.

Furthermore, you’ve identified your daughter’s EHC plan is vague. When the LA writes an EHC plan, they must by law ‘specify’ the help your daughter must receive. This means describing it in enough detail so that you and your daughter, among others, can clearly tell what must be delivered, how often, how long for and who by. The duty on an LA to specify is ‘statutory’ as it is required by section 37 of the Children and Families Act 2014.

IPSEA provides an EHC plan checklist you can obtain it from here:

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

This checklist will help you to identify each and every need for provision is there, in the right section and adequately described.  Delete phrases such as ‘access to’, opportunities for’, or ‘up to’ as in ‘up to X hours’.  I would advise you to look through all the assessment advice (section K) attached to the plan and extract any useful advice which actually quantifies provision. If the assessment advice is vague you could contact the professional and ask them to make the amendments.

Also, if you want your daughter to attend a special school, the LA has a duty when issuing a draft plan to advise you and your daughter about where they can find information about the schools and colleges that are available for your daughter to attend (SEN Reg 13).

If you or daughter want a school or other institution which is listed in Section 38 (3) then you or daughter will be able to make a request for it under the Act.

A school or other institution is within this subsection if it is:

  •  a maintained school;
  • a maintained nursery school;
  • an Academy;
  • an institution within the further education sector in England;
  • a non-maintained special school;
  • an institution approved by the Secretary of State under section 41

When the LA receives such a request they must consult the governing body of the school or institution and if it is in another local authority, the other local authority. The LA must secure that the EHC Plan names the school or other institution unless section 39 (4) applies.

Section 39 (4)

This subsection applies where

  • the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or
  •  the attendance of the child or young person at the requested school or other institution would be incompatible with— the provision of efficient education for others, or
  •  the efficient use of resources.

This means that if none of the conditions referred to in Section 39 (4) exists, the school or institution requested by you or daughter must be named in the EHC plan.

 

Our Case Officer said my son’s Asperger syndrome wasn’t an SEN!

We have just had the Annual Review meeting of my daughter's EHCP. The senior SEND case officer made an alarming comment when looking at Section B, Special Educational Needs. She said that "Asperger Syndrome, Social Anxiety and Sensory Processing Disorder" are "not SEN and shouldn't be in that section. We are making changes to Section B in line with DFE guidance." I was too shocked to question her.

My question is are they SEN? If not, where should these diagnoses appear on the EHCP? And what guidance could she be referring to?

ipsea answers

IPSEA replies:

A special educational need (SEN) is a learning difficulty or disability which requires special educational provision to be made for the child or young person. Each and every SEN must be specified in Section B whether it is to be provided for by the school/FE college, the LA, the health service or any other provider.

Therefore, we’d expect Section B to specify conditions such as Asperger Syndrome, Social Anxiety and Sensory Processing Disorder.  In addition, we’d expect that they would be broken down into all the specific needs that each condition involves for your daughter so that each need can be answered by special educational provision specified and quantified in Section F.

We aren’t aware of any DfE guidance that might have prompted the SEND case officer to think otherwise (and guidance couldn’t change the statutory definition given in s.21 of the Children and Families Act 2014 anyway).

You might find our EHCP area https://www.ipsea.org.uk/pages/category/education-health-and-care-plans

Refusal to issue an EHC Plan what can we do?

Parent Asks:

Our local authority has declined to issue our son an EHCP following an  EHCNA. We commissioned independent reports from an Education Psychologists(EP), a Dyslexia assessment and a Physiotherapist. We asked our Caseworker to ensure they wait for the reports(which he agreed). However, when we spoke to him he did not know our case was discussed at the Panel. So the decision was made on the evidence they had which was the LA's EP report. What can we do?

 

 

IPSEA Answers:

When an LA carries out an EHC needs assessment they must obtain all of the information set out in Regulation 6(1) of the Special Educational Needs and Disability Regulations 2014 (the “SEN Regs”). This includes advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from (reg 6(1)(h)). Under point SEN Reg 6(1)(h), a parent or young person can ask the LA to seek advice from anyone within education, health or social care, as long as it is a reasonable request. This can include a speech and language therapist, occupational therapist, physiotherapist or someone from CAMHS (Child and Adolescent Mental Health Services).

A request would be considered reasonable where, for example, a child or young person has been identified as needing an assessment already and they are on a waiting list, or where the school, college or other professionals have said this advice may be needed.

IPSEA advises that it is best to request that a particular professional is approached in writing (either in a letter or an email), so that you have a record of your request. If the LA do not agree to the request, and the EHC needs assessment process has not yet been completed, parents can use our model letter to complain.

In your case, the LA has already concluded the EHC needs assessment so, unfortunately, using the above model letter is not likely to be appropriate or helpful.

When the LA decides not to issue an EHC plan following an EHC needs assessment they must inform you that you have a right of appeal to the First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”). Before bringing an appeal to the SEND Tribunal, you must consider mediation. This does not mean that mediation is compulsory, but it must be considered. The exception is if you are appealing only about the school or college placement, or where no school or college is named and you are appealing about that fact.

The deadline for appealing is two months from the decision sent to you by the LA or one month from the mediation certificate, whichever is the later.

When an appeal to the SEND Tribunal has been registered it is sometimes possible to obtain a direction from the Tribunal that the LA obtains certain information. You could request the SEND Tribunal directs that the LA obtains information about your child’s fine motor skills. You will need to use the Tribunal’s Request for Changes form. You can download this from the SEND Tribunal site. Before submitting a Request for Change form you must first seek the LA’s views.

 

Should the LA come to our Annual Review?

My son is 15 and has an EHCP which is due for review. I have just received an email from the school's SENDCo to say that no one from the LA will be attending the review and it's unlikely that the Young Persons Advisor will attend either.

We have some concerns we wish to raise at the review but if no one is attending how can we do that? The SENDco says that the LA now never send anyone to review meetings. Are they legally obliged to attend and what is the point of the review if they don't attend?

Thanks for any advice or guidance on this.

ask ipsea

IPSEA says:

Unfortunately, whilst an LA officer must be invited to attend an annual review meeting, there is no obligation on them to attend (although IPSEA would be interested in seeing any documents about an LA policy not to attend such meetings).  That doesn’t mean you can’t ask again for them to attend and explain why you feel their attendance is important.  However, there are duties on the school and the LA which have to be carried out as part of the annual review process and the meeting is just one part of that process.

You’ve said that the Young Persons Adviser may not attend the meeting.  However, advice and information about your son must be obtained from the LA and sent to you at least two weeks prior to the meeting.  From Year 9 onwards, one of the specific purposes of an annual review is to consider what provision is necessary to assist your son in preparation for adulthood and independent living (Regulation 20(6) SEN and Disability Regulations 2014).  So, it’s reasonable to expect that, at the least, information and advice from the LA and the Young Persons Adviser will be obtained, circulated and then discussed at the annual review meeting.  You can ask school and the LA to make sure this happens.

Within two weeks of the annual review meeting, your son’s school must prepare and send a written report, including the information and advice obtained from the LA, setting out recommendations on any amendments to be made and the difference between the school’s recommendations and those of anyone else at the meeting.  This report is sent to you and the LA and forms the basis for the LA’s considerations about whether and what amendments to make to your son’s EHC Plan.

Therefore, you’ll see that, even if the LA/Young Persons Adviser choose not to attend the meeting, there’s plenty of scope for you and the school to have a thorough discussion of your concerns and make recommendations for what provision will best meet your son’s needs now and as he moves towards adulthood.

The LA has refused to assess my daughter, what can we do next?

My daughter has just finished school and has started college, in between starting college and leaving school we applied for an EHCP instead of her Send school plan. This would help her at College and provides her with the help she needs, she has ASD, severe Social Anxiety and presents with Selective Mutism.

The LA denied a request to assess. They stated her pupil referral unit school already catered for her additional needs. However, their decision is based on her previous school. What are my next steps as the College is very confused?

ipsea answers

 

IPSEA says:

It is not clear when you applied for a EHC needs assessment but when a LA refuse to assess they must state in the refusal letter that there is a right to appeal the decision to the First Tier Tribunal for Special Educational Needs and Disability. The right of appeal must be exercised within two months of the decision or within one month of obtaining a mediation certificate: whichever of the two dates falls the latest.

It is worth bearing in mind that the test in law concerning when a LA must assess a child or young person is set at a relatively low threshold. The test is that the child/young person has or may have SEN and it may be possible that the LA needs to make provision for the child/young person by way of a EHC Plan. The term “may” simply means it is possible so you do not need to show that your daughter needs a EHC Plan with any great degree of certainty.

If you are within the time limit for appealing then your daughter should consider appealing. Appeals against a refusal to carry out a EHC needs assessment are now heard on the papers which means there is no need for anyone to attend a hearing.

If you are out of time for appealing the decision then your daughter can (or you can on her behalf with her permission) make another request to the LA. IPSEA have a model letter which can be used and you can access this here. If the request is refused again it is important to consider appealing. IPSEA have a Tribunal Helpline which can advise on the tribunal appeal process and details on how to book a call back can be found here.

What are some practical examples of needs for an EHC Plan that cannot be met from normally available school resources?

Parent Question:

The SEND Code of Practice states that the threshold for an EHC plan is that the child's special educational needs cannot be met from the resources normally available to mainstream settings.

According to SEN Minister, that's not the same as the £6,000 threshold for banded funding. I'm really struggling to understand this. Could you give a few practical examples of needs that cannot be met from normally available resources? And how would an EHC plan help the school to meet those needs, given that a plan doesn't confer any additional funding to the school?

ipsea answers

IPSEA Answers:

The legal test for when an LA must issue an EHC plan can be found in the C & F Act 2014 s.37(1). It says:

“Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan -

(a)  the local authority must secure that an EHC plan is prepared for the child or young person … “

The test is whether it is “necessary” – there is no reference to levels of funding such as £6,000; hours of support; number of years a child is “behind” or any other test which parents tell us LA’s have as part of their SEN policies.

The £6,000 you refer to is a level of funding referred to in a SEN funding policy approach introduced by the Department for Education. It is not law and the legal test will always “top-trump” policy.

The LA has a legal duty to secure all the special educational provision specified in an EHC plan in section F (just like the provision specified in Part 3 of a statement of SEN). This duty can never be delegated to a school or college. It is for the school/college to be clear about what they have the resources to provide and to request additional funding from the LA if needs be.

What do I need to know about the new EHC Plan?

Parent Question:

My son is 16 years old, and Is in Yr 12. He has had a Statement of SEN since yr 3 and having been in mainstream up til yr 6 and then a specialist independent day provision, now has a weekly residential placement there. From there he attends Bexhill a 6th form college for a BTEC L2 course in IT.

His Statement was amended, with a Solicitor assistance, and was finalised in March of this year.

I have always been pretty on the ball about what is going on - but feel very lost now, with the changes taking place. I would be grateful for some pointers on what should I be aware of re the new ECHP? Will my son be transferred on automatically or do I need to request it - and should I want to? Also, is this be something to raise at Annual Review or before?

ipsea answers

IPSEA Answers:

Don’t panic. Whilst he is still in a school his statement will remain in place until he leaves there. I am presuming that he will stay there until the end of year 14. The question is what does he want to do after he leaves the specialist independent school? If he stays in education or training – maybe at a FE college or transfers to a post 19 Independent specialist college he will need to transition to an EHC plan.

At this year’s Annual Review meeting you should start to be clear about what he wants to do as his next step. If he needs to transition to an EHC plan then tell the LA in writing and ask them to let you know when they propose this will happen. Remember that as he is over 16 years old when he goes through this process the question of mental capacity will need to be answered (see previous question). Post school education – either at 16 years old or 19 years old – is a particular area that LAs and FE colleges are finding really hard to grasp properly under the new law. It is something that they have not engaged in fully before. If you think you need advice please seek it quickly.

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

What is the defintion of ‘Education’ used in the Education Health and Care Plan?

Parents Asks:

What definition of 'education' is used in Education Health and Care Plans? Does educational provision just cover access to the National curriculum or does it cover the wider school curriculum including support for after school clubs run by the school?

Does educational provision in an EHCP just cover the school day e.g. 9 until 3.15pm? What is the situation, in terms of reasonable adjustments, for schools who offer an after school club on their site, but which is run by a private provider. Is the school still responsible for the club - who must make reasonable adjustments? Does the school have any responsibility for a private provider Education?

ipsea answers

IPSEA Answers:

The definition of education, or more particularly, special educational provision is found in s.21 of the Children and Families Act 2014.  It is defined as educational or training provision that is additional to, or different from, that made generally for other of the same age in mainstreams schools maintained nursery schools, mainstream post-16 institutions or places in England at which early years education is provided.

Special education provision is delivered in the normal school day and ordinarily after school activities are excluded.  If a case can be made that an after school club has an educational element and this is included in the child’s EHC plan at Section F (i.e. it’s demonstrated that it is special educational provision to meet a specific special educational needs in Section B of the Plan), then the LA would be obliged to secure the special educational provision specified.  The norm, however, is that after-school activities are not special educational provision – because it does require evidence to support special educational provision being delivered in this way, outside of the school day, to meet a child’s SEN.

If the child is disabled, then there would be a duty on the provider/school to make reasonable adjustments in accordance with the Equalities Act 2010 (although cost considerations make certain adjustments unreasonable).  It might also be possible to secure support outside of the SEN Law framework via social care support.

Where can I find information about the Personal Budget?

I am about to transfer from a statement to an EHCP and I don't know where to find about the personal budget.

My son is 10 and I am not aware of him having any personal budget but to get one where do I find out what it is?

ask ipsea

IPSEA says:

Firstly, as you are about to start the transition process it is important to make note of the date when the local authority sends you the ‘notice of transfer’. This is the letter they must send in law to formally start the process of transition. Without this letter, it will be difficult to make the local authority adhere to the time limits for transition as it is the ‘notice of transfer’ which formally starts the legal time limits for completing the process.

In law, a transition from a statement to a EHCP is an EHC needs assessment. Your local authority cannot simply ‘tip’ the information from your son’s statement into an EHCP. https://www.ipsea.org.uk/pages/category/education-health-and-care-plans

Personal budgets and direct payments were introduced as a way of increasing independence and choice for individuals by giving them control over the way in which services that they receive are delivered. Direct payments have been available to young people and parents of children with SEN and disabilities for some years to pay for social care provision.

The new feature of the Children and Families Act 2014 was the introduction of personal budgets for the provision specified within the EHC Plan, (including the special educational provision) and the possibility of direct payments for the special educational provision specified in the plan.

In respect of all types of provision for which a personal budget has been requested and identified, there are four potential ways in which parents and young people might be involved in securing the provision and having the personal budget delivered:

  • Direct payments – where individuals receive the cash to contract, purchase and manage services themselves;
  • An arrangement – whereby the LA, school or college holds the funds and commissions the support specified in the plan (these are sometimes called notional budgets);
  • Third party arrangements – where funds (direct payments) are paid to and managed by an individual or organisation on behalf of the child’s parent or the young person;
  • A combination of the above.

There is no duty on you to request that the local authority identify a personal budget, it is completely optional. However if you wish to request a personal budget for the provision within the EHC plan, you can do so:

  • when a draft EHC plan is being prepared following the EHC needs assessment your son has as part of the transition process from a statement to a EHC Plan or;
  • when the EHC plan is being reviewed annually

There are limited reasons in which the local authority can refuse to prepare a personal budget. This will apply where the personal budget is part of a larger overall budget sum and separating the sum for the personal budget:

  • would have an adverse impact on services provided or arranged by the LA for other EHC plan holders, or
  • would not be an efficient use of the LA’s resources.

If the LA does refuse a personal budget on such grounds, it should inform you why it is unable to do so. The SEND Code (paragraph 9.106) indicates that the LA should work with the parent or young person to try to personalise the services in question through other means and should use the information to inform future joint commissioning arrangements to ensure that greater choice and control can be achieved in future. 

Who can I ask to check our draft Statement or EHC Plan?

Parent Question:

After repeatedly asking for and being told by schools that my ds, 8yrs old who has autism would not get a statement, I applied myself and was successful. I have just received the draft statement but I’m not too sure if it's right or worded properly etc. Is there someone who can check it? DS was given 25 hours, going down to 20 next year?

ipsea answers

IPSEA Answers:

It is important that when you are consulted as a parent or young person on a draft statement or EHC plan that you know what should be in it. The IPSEA website has information on both what to look for in a statement and a new EHC plan checklist to help you. What you want to be sure of is that all your child’s special educational needs are recorded in Part 2 of a statement (or section B of an EHC plan) and that for each need there is corresponding special educational provision in Part 3 (or section F of an EHC plan).

That SEP (Special educational provision) must by law be specified i.e. it should make clear who will do what, when and where and how progress will be measured (and then how often). Watch out for weasel words/phrases such as “regular”, “opportunities for”, “as required” and “access to” which are too often used by an LA to leave things fuzzy and unclear – thereby blurring their legal responsibility to provide it! These requirements are the same both for a statement and for an EHC plan. If you have any questions then please seek advice.

Who is responsible for implementing the provision in the EHC Plan?

Parent Asks:

I know the LA are responsible for implementing the EHC plan but what responsibility does the school have - for example - if an EHC plan was not implemented?

IPSEA Answers:

If a child or young person has an EHC Plan, the school must use their ‘best endeavours’ deliver the special educational provision specified in Section F.

The duty to use ‘best endeavours’ to secure special educational provision applies to:

  • mainstream schools (including mainstream academies)
  • maintained (state-funded) nursery schools
  • 16-19 academies
  • alternative provision academies
  • Further Education institutions
  • Pupil referral units

(Note that this does not apply to special schools or independent schools.)

The law says:

If a registered pupil or a student at a school or other institution has special educational needs, the appropriate authority must, in exercising its functions in relation to the school or other institution, use its best endeavours to secure that the special educational provision called for by the pupil’s or student’s special educational needs is made.”  See Section 66 of the Children and Families Act 2014.

 

The reference to the ‘appropriate authority’ means the governing body, proprietor, or management committee of the school or other setting. The legal duty is directly on them as a body and not the headteacher of the school or principal of the college. The governing body (or equivalent) is able to effect change as it is responsible for the appointment and performance management of such posts.

If the school cannot, or does not, deliver the special educational provision specified in Section F of an EHC plan the LA has a direct duty to secure the provision they need and must provide the school with the resources (finances or expertise) to do so.

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A: Advocacy, Assessments, Autism | E: Education, EHC Plans, Exclusion | H: Health | L: Legal Assistance | N: Negligence | O: Outcomes | P: Parent Participation, Placement, Post 16, Practitioner Matters, Provision | S-Z: SEND Reform, Social Care, Statement provision, Transfer to EHCP, Transport

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