ASK IPSEA Legal Agony Answers


EHC Plans

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

ASK IPSEA: 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?

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Julie Moktadir, IPSEA CEO 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/

ASK IPSEA: 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.

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IPSEA CEO, Julie Moktadir 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.

ASK IPSEA: 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?

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Julie Moktadir, IPSEA CEO 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. Before the transition starts it would be useful for you to check out IPSEA’s resources on transition and ‘what happens during an EHC needs assessment’ briefing which can be found here.

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. 

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

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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.

 

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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.

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Can The LA Make Amendments To The EHCP Which Differ From The Tribunal Order?

Parent asks:

 

Are the LA allowed to make changes to the EHCP from that which was ordered by the Tribunal? What should we do if they do not reinstate the EHCP to that which was made by the First Tier Tribunal?

 

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IPSEA answers:

 

It is not entirely clear from your question whether the local authority has issued an EHC Plan which does not fully comply with the First-tier Tribunal’s decision or whether, having complied with the decision, it has, at a later date, issued another amended Plan.

 

If immediately following a Tribunal, the local authority has issued an EHC Plan that does not fully comply with the decision of the Tribunal, then the local authority is likely to be in breach of Regulation 44 of the Special Educational Needs and Disability Regulations 2014 which deals with compliance with Tribunal orders.

 

Without knowing the exact nature of your appeal to the Tribunal it is not possible to say exactly which timescale applies, but the regulations are clear that a Tribunal order must be complied with.

 

You should write to the Director of Children’s Services complaining that the local authority is in breach of its duty to comply with the Tribunal order.

If this fails you may have to apply to the Secretary of State for Education to enforce compliance.  The complaint would be about the local authority acting unlawfully (being in breach of Regulation 44) and made under section 497 of the Education Act 1996. The Secretary of State has powers to direct local authorities to take action to remedy any unlawful act. Complaints can be made online: https://www.education.gov.uk/schools/leadership/schoolperformance/schoolcomplaints-form

 

It may, alternatively, be necessary to make an application to the High Court for judicial review in order to ensure compliance. The time limit for applying for judicial review is as soon as possible but in any event within three months. It is usually necessary to show that everything possible has been tried to resolve the problem before resorting to court action.

 

You can also make a complaint to the Local Government Ombudsman (LGO). For details of the procedure see: http://www.lgo.org.uk/making-a-complaint/ There is also a helpline number to call: 0300 061 0614.

 

If on the other hand, the local authority complied with the Tribunal order by issuing an amended Plan in the form that it ordered, but has subsequently amended the Plan, it may not be acting unlawfully. The local authority is entitled to amend an EHC Plan at any time as long as it follows the process set out in the Special Educational Needs and Disability Regulations 2014.  This involves, among other things, sending you a copy of the EHC Plan together with a notice specifying the proposed amendments, giving you at least 15 days to make representations about the content of the draft Plan and the opportunity to request a meeting with an officer of the local authority.

 

If the local authority has issued an amended Plan and you are unhappy with the content you will have a fresh right of appeal to the First-tier Tribunal.

 

 

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

 

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 (sectionF) 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

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Julie 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.

Our EHC Plan checklist will be helpful in understanding what should be in each Section:

https://www.ipsea.org.uk/file-manager/SENlaw/ipsea-ehc-plan-checklist-2015-april.pdf

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
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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?
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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?
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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?
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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

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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 Child’s Father Is Trying To Block An EP Assessment

Parent asks:

My son is converting to an EHCP from a statement and his school wants a new Educational Physiologist report and so do I. I live apart from his dad and he is blocking this. The last one was five years ago. What is the legal perspective on this?

 

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IPSEA answers:

The process of transferring a statement to an EHC Plan is a statutory process for which the local authority is responsible.  As part of this process, the local authority must carry out an EHC needs assessment in accordance with regulation 6 of the SEN and Disability Regulations 2014.  This means the local authority must obtain information and advice from certain people and an educational psychologist is one of those (regulation 6(1)(d)).  The only exception is if the local authority, the educational psychologist who provided the original information and the child’s parents agree that the information is “sufficient” for the purposes of the assessment (regulation 6(4)).

From what you’ve told us, you don’t agree that the information available is sufficient but your son’s father does. In education law, a parent is defined as any person with parental responsibility for the child concerned and any person who “has care of” the child concerned. This means you both have rights in relation to your son’s education and Regulation 6(4) requires all those with a say to agree that the information and advice available is sufficient for the EHC needs assessment. In your case, this requirement is not met as you don’t feel that the information is sufficient. Given that the information is 5 years old, it’s also unlikely that the educational psychologist who provided it would agree it is still sufficient (and certainly could not do so, after such a long passage of time, without spending time with your child!).  Therefore, because you don’t all agree that the information currently available is sufficient, the local authority must obtain new information and advice from an educational psychologist.

The local authority will need to comply with its obligations under section 19 of the Children and Families Act 2014, which requires the local authority to have regard to the views, wishes and feelings of parents and children, but also to provide the information they need to fully understand and participate in processes such as an EHC needs assessment. Perhaps your local authority needs to think about how it might better explain the process and its purpose to reassure everyone involved, including your son’s father, that the key focus is on what might support your son to achieve the best possible educational and other outcomes?

SaveSave

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

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Julie Moktadir, IPSEA CEO 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

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

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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 EHC Plan checklist helpful: https://www.ipsea.org.uk/file-manager/SENlaw/ipsea-ehc-plan-checklist-2015-april.pdf

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

 

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Julie Moktadir, IPSEA CEO 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?
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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?
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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 is the defintion of ‘Education’ used in the Education Health and Care Plan?
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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.

Who can I ask to check our draft Statement or EHC Plan?
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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 Owns The Equipment Specified In Section F Of The EHCP?

Parent asks:

 

My adult son was awarded a laptop provision in his EHCP and he receives 1:1 support in college. The college is asking him to sign a loan form and I feel he is being put under pressure to sign the form. Who does the equipment belong to?  Should SEN students have to sign for and be responsible for equipment when it is obvious they have SEN and need support with basic things? He is anxious about the whole situation and the consequences if the laptop was lost.

 

ask ipsea

IPSEA answers:

 

If the provision of a laptop is specified in Section F of the EHCP then the local authority (LA) have a duty in law to ensure this provision is ‘secured’; in other words, they are the body in law who must ensure your son has the provision of the laptop as specified in his EHCP.

 

It is not uncommon for colleges to ask students to sign a loan form when they are taking electronic equipment. Such forms usually detail the terms of using the equipment and the student’s responsibility to use the equipment responsibly. You do not say how old your son is but young people under the age of 18 cannot usually be legally held to a contract because the law considers them as ‘minors’. In your son’s case the provision of the laptop is specified in his EHCP and this means it must be provided for him regardless of whether there is a signed loan agreement in place. Put simply, it is deemed special educational provision that he must have so if the college refused to provide the laptop in absence of the signed agreement the local authority would be in breach of its duty to secure the special educational provision in his EHCP which in this case is the provision of a laptop.

 

If you have any further problems you would like to discuss with one of our specially trained volunteers please book a call back through this link.

 

Skip to: A: Advocacy, Assessments, AutismE: Education, EHC Plans | 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

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.