Transfer to EHCP
My son's statement is in the process of converting to EHCP and we are awaiting the draft EHCP. Prior to the draft being issued the LA sent us a letter notifying us of their intention to gradually reduce the provision which is in current statement and our right to appeal if we disagreed.
I know that provision in his statement needs to continue and the LA is unable to remove or reduce the provision until the EHCP is finalised. Where is this duty mentioned in the SEN code of practice or SEN Regulations?
You are correct that the statement remains in force until the EHCP is finalised. This means that the LA continue to be under a legal duty to arrange all of the special educational provision set out in part 3 of your son’s statement.
This duty can be found in the Education Act 1996. The following extract from section 324 states:
(5) Where a [local authority] maintain a statement under this section, then— (a) unless the child's parent has made suitable arrangements, the authority— (i) shall arrange that the special educational provision specified in the statement is made for the child
You can see this set out in its entirety by looking at IPSEA’s link to SEN and Disability law here. You may also wish to write to your LA using model letter number 6 which is contained in our information ‘common problems relating to statements of special educational needs’ by clicking here. You will need to adapt the letter to make clear that the letter you have from the LA suggests they will be reducing the special educational provision set out in your son’s current statement until the EHCP is finalised and this is unlawful.
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.
My son is in year five primary in a mainstream school. He has his transition review/ annual review. He has Down syndrome and is currently on the waiting list to be assessed for possible ADHD and or ASD. He has a SEN Statement. He will be having his transfer from Statement to EHCP starting in October 2016.
I have viewed three possible secondary school placements for him for September 2017. Two schools out of borough and one school in borough. I am still waiting to be contacted by one school in borough. My gut feeling and from viewing these three schools I do have a preference but it is out of borough, but how do I convince my LA that this will be the best place for my son?
They were the only school to give me any literature on the setting, they are using Wiki's, my son has a Wiki. My son is a twin and his twin sister will go to mainstream secondary. Whilst I did like the other schools I have visited; I felt that the one in borough was geared up for children with more physical difficulties and the one outside of borough just had a feel of a more residential setting than a school.
The school I like will offer my son everything he needs from his education, health and social care, the curriculum is balanced to his needs and there seems a greater enthusiasm to challenge my son's development. The other school, in-borough, who have not replied to me, has had tribunals and appeals stating that it is not the best suited school for children with Down's syndrome, although children with DS attend, I just know that my LA are going to suggest that my son stays in borough.
I am looking for a set of questions that I can use to help evidence my concerns and build a strong case as to why my son should attend an out-of-borough school. I want to be prepared when I have to fight the LA, as I know from many other parents, that is what they have had to do. Thank you for listening.
Firstly, it is important that you keep an eye out for the formal transition notification the local authority (LA) must send you in order to formally start the process to transition from the statement to the Education, Health and Care Plan (EHC Plan) as this triggers the time limits in law by which the process must be completed.
As your son will be transferring to secondary education September 2017, the LA is under a legal duty to finalise his transition to a EHC Plan by the 15th February 2017. As the transition process in law can take up to 20 weeks this means you should be receiving your formal notification no later than mid September 2016.
In law, a transition is a EHC needs assessment. Once this is complete the LA will issue a draft EHC Plan if they consider a EHC Plan is needed. At the draft stage you have a right in law to state a preference for a particular school to be named so long as it is a ‘type’ referred to in section 38(3) of the Children and Families Act 2014 (C&F Act 2014). The ‘types’ a parent or young person can state a preference for are maintained schools (both special and mainstream), academy schools (both special and mainstream), non-maintained special schools and independent schools who are approved under section 41 C&F Act 2014.
If the school you want is one of the ‘types’ above the LA must name it unless they can prove one of the reasons listed in section 39(4) C&F Act 2014 applies. These are: the school is unsuitable; the attendance of the child or young person will result in the inefficient education of others or the inefficient use of resources, i.e. it will cost much more. These are the only reasons they can use to say no.
They cannot say no just because the school you want is out of borough. You mentioned that the school you want is using ‘Wiki’s’ and that your son is currently using this. It will be additionally important to ensure that Section B of the EHC Plan accurately describes each and every one of your son’s SEN and that Section F properly specifies and quantifies all of the special educational provision your son requires, including the Wiki.
If the LA fail to name the school you want in the final EHC plan the decision is appealable to the SEND Tribunal, as well as appealing Sections B and F.
You are early on in the process and it is important to seek advice as and when you need according to how your situation develops.
My daughter, who is 16, has a draft EHCP. The LA have issued transition arrangements for Children & young people with Statements, but make no reference to those with draft EHCP's. What should the LA be doing to make the draft a legally enforceable EHCP?
Does your daughter have a statement of SEN (as well as the draft EHC plan)? If she does then she will transfer to a “legal” EHC plan – once an EHC assessment has been carried out - in accordance with the timetable in your LA’s transition plan.
If she does not have a statement of SEN then the Statutory Guidance on transition issued by the DfE makes it clear that those with a non-legal (i.e. illegal) EHC plan must be a priority group for this first year to go through an EHC needs assessment and be issued with an EHC plan. Read the briefing that we have written at IPSEA on transition http://www.ipsea.org.uk/what-you-need-to-know/transition and then write to your LA and ask them when they intend to start this process. If it is not clear when you receive your reply then please contact IPSEA for individual advice.
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?
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?
The LA has carried out an EHC Assessment for our son and has agreed that an EHC Plan is required. However, it is taking an inordinate amount of time for the plan to be finalised and issued (it is now more than 40 weeks since the request for assessment was made). Whenever we raise the issue with the LA there is a flurry of activity and then everything grinds to a halt again.
Could this be regarded as a de facto refusal to make an EHC Plan even though a draft exists? What recourse do we have as appeals to the Head of Children's Services end up back with the SEND Department and inactivity?
Julie Moktadir, IPSEA CEO says:
It would appear the LA is in breach of its legal duty. Although there is no legal time limit specified by which the LA must issue the draft EHC Plan, Regulation 13(2) of the Special Educational Needs and Disability Regulations 2014 states that the LA is required required to send a copy of the finalised EHC Plan as soon as practicable, but in any event, within 20 weeks of the local authority receiving the request for a EHC needs assessment. There are very limited exceptions to exceeding the time limit and 40 weeks appears incredibly excessive. If a draft exists, it is unlikely that you could regard the LA’s inaction as a refusal to make an EHC Plan.
Although you have already raised this issue with the LA we would suggest you do this using IPSEA’s model letter which can be used in these circumstances. You can find the letter by clicking on this link. If you do not receive a satisfactory response to your letter you could contact Civil Legal Advice with a view to exploring whether you or your son could take action against the LA for the breach of legal duty using legal aid. More details and how to contact them can be found here.
A parent asks
I am a parent of a 18 year old who has an SEN, but has been excluded from independent school since May 2015 with the full knowledge of LA and has not been provided education since.
My son's Statement of Special Educational Needs exists, has not ceased to be maintained, still in force and no provision of part 3 of the Statement of Special Educational Needs has been made since he was excluded. I have advised LA this is unlawful. My LA are dismissing the fact that they have not provided education for one year but want to arrange a transfer meeting to start process changing over to EHCP. I have said that LA should make arrangements to provide as per my son's statement first.
The independent school should not have excluded my son but likewise my LA to withdraw his placement leaving him in limbo without any education for one year without accounting for their actions.
The first question to ask here is what outcome are you looking for? Does your son want to return to a similar school or post 16 placement?
Under your son’s current statement, the LA has a duty to ensue he receives the provision specified in Part three, but beware: a statement of SEN can only provide support whilst he is in a school placement and the fact that he is 18 years old and over compulsory school age - the end of the academic year in which a child turns 16 years old - will mean that it is very unlikely that the LA will amend it to name a different school now. It could even be argued by the LA that the statement has lapsed and that they no longer have a legal duty to make provision for him
You should start the transition to an EHC Plan as soon as you can. As he currently has a statement this will mean that the LA have to carry out an EHC assessment of his needs and decide if they are going to issue an EHC Plan for him. If the LA issue an EHC Plan this will ensure that he continues to be entitled to special educational provision and will name a new educational placement for him potentially up to the age of 25 years old, which can include a place at an FE College or an apprenticeship. It is clearly not right that the LA has not made provision for him for the past year, but do not lose the opportunity to transition to an EHC Plan now.
You should contact the LA and say you want to start the process of transitioning to an EHC Plan at once.
My son is 16 and in last year of secondary. We are in the process of transferring statement to EHCP.
We have a temporary Physio covering maternity leave.
My son has recently outgrown his standing frame and the Physio says, medically he does not need a standing frame, she wants him to stand in his walker in English or maths. This decreases his hand function. His walker is banned from the cookery class as is a H&S risk.
I have a 2012 private Physio report and a 2015 NHS Physio report, both say he needs to stand in a standing frame for 50 minutes a day, he also has a Physio and walking program to follow. All quantified in part 3 of his statement. The private Physio stressed that skills could be lost as he goes through puberty if this is not done.
The private Physio emailed the LA and SENCO on Saturday, stating that she had viewed the photographs and video I sent her of my son in his walker. She recommends that he still needs a standing frame to access the curriculum fully.
The LA would agree to buy a standing frame but of course cannot because the current Physio will not recommend it.
I have heard nothing from anyone concerned.
What would my next step please?
I have refused to accept the EHCP as it is.
Julie Moktadir, IPSEA CEO says:
From what you’ve told me, your LA seems to have misunderstood their legal duty under s.324(5) Education Act 1996 during transition. Whilst the process of transition is taking place, the current statement of SEN still has effect in law. This means that if the provision of a standing frame is specified in Part 3 then, no matter what the physio says (and no matter what discussions are on-going about the draft EHC Plan), the LA must ensure that this is provided.
IPSEA has a model letter you can use to complain when the LA is failing to arrange the provision in the statement and it’s found at “Common Problem 6” here:
When you get a draft EHC Plan you have the right to make representations about its content. You are right to ask that your son’s need for the standing frame is included in Section B of the EHC Plan and both the provision of the frame itself and the programme of therapy to support your son’s physical training with it is included in Section F (specified and quantified in the same way that it currently is in Part 3).
If there’s a disagreement between professionals as to what your son’s needs are and what provision is required to meet those needs, then the LA needs to get further information and advice to try to resolve this. However, it seems here that the LA agrees with the private therapist and the NHS report from 2015 but the fact that the temporary physio won’t authorise it (and, presumably, pay for it) is the real problem.
Ultimately, as was the case with statements, the LA’s duty is to specify and quantify all of the special educational provision required by your son’s SEN in Section F of the EHC Plan. You can certainly remind the LA of this duty (s.37 Children and Families Act 2014).
It’s also worth remembering that the local partners in your area are obliged to work co-operatively with LAs in carrying out their duties under Part 3 of the Act. A failure to do so might be something that OFSTED and the CQC are interested in addressing when they carry out their Local Area SEND Inspections:
If the LA won’t agree to specify and quantify certain provision then you would be able to appeal to the SEND Tribunal once you have the final EHC Plan.
Are there guidelines to stress free home/school transport for SEN children?
There is statutory guidance to the provision of home/ school transport which you can find on the IPSEA website http://www.ipsea.org.uk/what-you-need-to-know/home-to-school-college-transport
It does not however define what “stress free” is. This needs to be identified in the context of an individual child’s needs as what is stressful to one may well be relaxing to another! If the description of your child’s needs are accurate in their statement/EHC plan this should help identify triggers which would make it stressful.
What happens if a statemented 8yr child refuses to go on transport to school because of negative experiences causing severe anxiety? What are the responsibilities of the LA and setting? Is no education provision since June acceptable?
This is a question that requires answers to further questions before you can be advised so please call IPSEA.
But remember that an LA has a duty to provide a full time education for a year 8 child and provide free home to school transport to their nearest suitable school if the child is an an eligible child – there are various different ways to qualify but children with SEN and disabilities who have mobility problems such that they could not reasonably be expected to walk to school on their own will qualify. The school named in your child’s statement or EHC plan if they have one is accepted as the nearest suitable school by your LA unless they have entered into an alternative arrangement with you. Free home to school transport is not just available for those who have statements or EHC plans.
The transport arrangements made have to be stress free and safe. If the negative experiences the child has experienced have been around previous transport arrangements then this needs to be carefully looked at, assessed and a suitable alternative put in place. Whatever the cause of the delay not receiving an education since June is not acceptable. Please seek advice quickly.
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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.