Draft Plans and Working Documents in an EHCP

Working Documents (WD) and draft EHC plans are quite similar, although with a draft plan you can negotiate on all of it whereas a WD only (currently) relates to sections B/F/I (or 2/3/4 of a statement). When your plan is in draft stage, you have the opportunity to present ‘parental evidence’ which can also include privately commissioned reports.

If you are new to the system, you may wonder why parents seek private reports. It may be that the parents disagree with the LA commissioned ones, the LA ones are vague or the LA didn’t commission a report at all from the service they wanted them to. Therapies are generally the main area of dispute.

Reports should be fit for purpose, they should clearly state ‘needs’ and ‘provision to meet needs’, which includes how often, by who and if necessary, with what qualification (i.e. specified and quantified). It doesn’t necessarily follow that the LA will include any wording from private reports, even though they should consider all evidence. If appealing to SENDIST (tribunal) however, tribunal use their own expertise to decide whether or not to include them.

draft-plans-and-working-documents-in-an-ehcp

For a great many parents, the importance of the WD may not be obvious.

A WD is only for those tribunal appeals where amendments are being sought to sections 2/3 (statement) or B/F (EHCP). It is highly advisable that those going to tribunal for a change of school, also consider whether amendments are needed to parts 2/3 or B/F. It is only after these sections are written can an educational placement be considered.

An EHCP might say ‘an environment sympathetic to a student with Downs Syndrome’, but isn’t that every school? What is needed is the meat on the bones, what is needed for that specific student? Vague terminologies should not be used such as ‘as appropriate’, ‘regularly’, ‘have access to’ etc. I might ‘have access’ to technology (programmable fairy lights) ‘regularly’ (every Christmas) because someone (my kids) considers it ‘appropriate’.

Needs and provisions

I must stress that EHCPs are unique to each individual child. The information here is a generic overview, a recipe if you like and like all recipes, no two cooks will serve up the same dish - as anyone watching The Great British Bake Off will know! It is why you should always be wary of examples of ‘a good EHCP for X condition’.

The initial start-point of assessment is the identification of a student’s needs (part 2/section B). This should be all SEN needs, regardless of whether they can be met ‘generally’ in nursery/school/college. Once all of a student’s needs have been established, there must be provision to meet each and every one of them written into part 3/section F.

If there is missing information, or provision is ‘woolly’, a school may say it can meet a student’s needs when it may become very clear later that they cannot, or at least not without top-up funding or outside help. It is neither fair to the child nor the school. A draft EHCP should have all sections filled in with the exception of section I – school placement. The LA must give parents the opportunity to put forward amendments before the final plan is issued.

When you are appealing contents to tribunal, the LA must send the parents the WD at the Grounds of Response stage. Parents are expected to type in the amendments that they are seeking, return it to the LA for them to accept the amendments, reject them or offer alternative wording. This document can be passed backwards and forwards up until the morning of tribunal, although the LA has to send a copy to tribunal 10 working days beforehand. Some LAs are more engaging than others regarding the WD.

Working on the Working Document or draft plan

A good place to start is with a ‘pen portrait’ of what you think your child’s needs are and what provision is required.

 

Balancing ‘needs’ and ‘provision’

The next step is to look at what evidence you have to support your thoughts. Generally this will come from the reports written as part of the EHC Needs Assessment (Section K), it may also be from private reports, Annual Reviews, school reports, medical professionals etc. Reports written by a professional will always be given greater weighting than those from family or friends. Evidence should be fairly recent, preferably no older than 12 months. This can be an issue if the LA has not conducted an EHCP assessment well and/or used old reports. It’s not unusual to see reports that are over 5 years old, possibly even 12!

The next bit is the time-consuming headachy bit. Grab a couple of highlighter pens and go through all your reports and see what evidence there is to support what you want and highlight it – one colour for needs and another for provision. It may well be that there are other needs and provision in your reports that you hadn’t noticed before, you can include them too. Look at the statement or plan and if the highlighted information has already been written in, discard it. What is left are the amendments that can be used for the draft/WD (tip: try cutting out the highlighted bits and ordering into needs/provision piles, or stick them on a wall to get a better view).

Some people might feel that the provision lacks quantification, or that there are gaps. Where reports have not been quantified, try asking the report writer to do this. If this is not forthcoming, it may mean that it would be useful to commission your own report. Ensure that the person commissioned knows the purpose of the report and your expectation for quantification (and what their fees are!).

Private reports ought to generally agree with areas of strengths and weakness of LA ones, since they are assessing the same child. However, they may go into more depth and detail. On an EHCP ‘a programme of…’ says little - what programme, how often will it be delivered, who is going to deliver it? To use speech therapy as an example, how much 1:1 with the SaLT (time, frequency), how much 1:1 or small group work with the TA (time, frequency) and if necessary, the qualifications of the TA (Makaton, Elklan and level). Similarly, if a programme is named, does the school have the expertise to deliver it or will someone/service need to be bought in?

Shouldn’t the LA do all this?

Well, arguably they should have done this work when the EHCP was first drafted, or to keep the statement/EHCP current. However, a tribunal appeal is a parental appeal so therefore the job of ‘doing’ the WD falls to the parents (or possibly young person, if over 16). It is hoped that by the time the hearing date comes around, most of the WD will already be agreed. Some LAs do leave this to the last minute, so prepare for this. Tribunal is also able to use its own expertise to write the final statement/EHCP, provided that any information to be included has been discussed during the hearing.

Assessments

It is worth noting that many assessments cannot be repeated within 6 months. If you are considering private reports for tribunal, I would suggest informing the LA when you are having the assessment done, inviting their professional to observe/jointly assess. If this is not possible, you could inform the LA that your specialists will assess first. If you are paying, it is only right that your professionals are prioritised. However, consider the timing of assessments so as not to be obstructive.

It is an expectation that both parties lay their cards on the table at the earliest opportunity,   although this may not happen. If the LA suddenly arrives at tribunal with new evidence, or one of their professionals gives fresh evidence the parent has not previously had access to, it would not be unreasonable to ask for an adjournment so that this new evidence can be considered and rebutted if appropriate.

Children and young people should not be over-assessed. If a child or young person has had a Statutory Assessment, then a private assessment for tribunal, I would query the necessity for any further assessments within 12 months. Similarly, if the LA reports have been quite thorough, but the LA did not include their professionals’ recommendations in the EHCP, is a further assessment needed when you can use the existing ones? An assessment is only really needed when/where there are gaps. If a solicitor is being paid for and s/he says that new reports are needed, parents should question why – what gaps are there that need filling?

Tribunal outcomes

Once 2/3 or B/F have been agreed, attention can be turned to school. If an appeal also includes a change of the type of school, it is unlikely to be indicated unless 2/3 or B/F is quite thorough, hence the importance of including these in the appeal. It is expected that a mainstream nursery/school/college can meet a child or young person’s needs with the right support in place; that support comes from the provision in a statement or EHCP. If a mainstream school (or schools) are saying no, they won’t take your child, the LA must demonstrate that a) the attendance of your child would be incompatible with the efficient education or others and the efficient use of resources and b) those barriers cannot reasonably be removed.

Being ‘full’ is not sufficient reason in itself, nor is already having X amount of SEND students on roll. The LA would need to supply further information that would satisfy the tribunal of the legal tests (above). If an independent school is being sought, effectively you are stating that the LA does not have a school that can meet your child’s needs (i.e. make the provisions on the EHCP/amendments agreed in tribunal).

A personal note

I don’t view tribunal as a ‘win’ or ‘lose’ in appeals over 2/3/4 or B/F/I. It is the child whose needs are being discussed and if some additional provision is secured by the parent, clearly the tribunal considered that provision to be necessary, even if it was not all that they asked for. This can be quite significant where the appeal included a different type of school. Even if the school sought was not awarded, the provision gained is legally enforceable (duty to ensure it is made falls back to the LA) and could make all the difference to the child and the school.

Knowing what should go into an EHCP is not easy when you are not an expert in reading assessment reports. It is part of ‘best practice’ that assessors, whether EPs, Specialist Teachers, or therapists, to explain the results of any assessment. Reports should be in layman’s terms so that the EHCP can also be written in a manner that is understood by anyone reading it, especially the child, parent or young person!

The SEND reforms may be about ‘views, wishes and feelings’, but they are also about ‘best possible education and other outcomes’. A good plan will go a long way to achieving those goals.

Bren Prendergast
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Bren Prendergast

SEND Parent & Advocate at BJPren Blog
Bren Prendergast is an SpLD Tutor as well as the parent of a child with additional needs. Bren won cases against her LA after they threatened her with court action over her son's non-attendance due to issues with his school. Bren volunteers for a large charity that gives free legally-based advice. She also assesses students for Access Arrangements for their exams.
Bren Prendergast
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  • Annonymum

    Thanks for the post Bren, it’s excellent. Here in Devon though they have added another layer of complexity to the already difficult and troubled system. It’s called the ‘Skeleton Draft’. This was sent to us at the very beginning of the EHCP process (September 2016) but after we had completed a 22 page Transfer Review Document (July 2016). You would have thought that the Skeleton Document would have drawn heavily of the Transfer Review (TR) document but no. It’s didn’t. It was essentially a generic non-specific document produced by someone who had not met us or our son, and it would appear not have read the TR, which we had worked hard to produce alongside the SENCO. Apparently, it was sent out in error in this generic format and should have been passed to someone else who was supposed to do some work and spell check it. But although the spell checking was done (yes, that very important part of the process…) the actual thought around our son and what this document said about him in relation to his needs, had not. You can call me a cynic if you like, but actually, I’m not the first person around here to receive a document that has ‘accidentally’ missed off information, or failed to gather it in the first place. But the point is this; we are being sent out documents that some people might think are the actual EHCP at the START of the process, and which if the parent/carer accepts as being so, could lead to some very serious corners being cut in terms of the actual EHCP process and the legal framework around which it is supposed to be carried out (hands up if you have even heard of a Skeleton Draft)… The other serious issue here is that this paperwork is being completed without reports being requested and whilst they are saying that it’s not the end of the process but the start, but my feeling is that the length of the process is equal to the height at which the parent is able to jump in terms of fighting their corner using support from IPSEA and Special Needs Jungle, or being able to financially pay for the costs of a fit-for-purpose EHCP. In terms of where the EHCP sits with regards informing educational placements, it’s too little too late. We’ve already had to request a secondary school place, and yet, we have only just begun the whole EHCP process. And seriously unless I can dig up somewhere in the region of £10k for various specialist reports and a legal team, I don’t recon it’s going to happen in a way that is going to help anyone.

    • @bjpren

      I honestly despair at the chaos of the system. Not much has actually changed law-wise so why so much confusion? Is it the lack of set template? Is it a deliberate move by LAs? I honestly don’t know.
      In regards to drafts, ok, LAs could mock something up based on existing evidence, but that then needs to be built on – and parents should not have to foot the bill by gaining private reports!

      • Annonymum

        Shouldn’t have to, but increasingly, it is the case that they do have to. Some LA’s are factoring in taking every case to tribunal. It’s worth it to them as so many fall by the wayside…. The system is deliberately being made more and more complex by local authorities. Parents stand little chance of understanding it, and by the time each individual local authority has interpreted it, and embroidered it with silly little ‘traps’ along the way, it becomes nothing short of corruption.
        I think that there’s a lot of parents that would like to see exemplars of good, lawful EHCPs. Not to copy them, ….but just to admire the view, of what they might have been able to achieve for their child if they lived in a local authority that cared enough to to write something meaningful and which they the local authority would put their might behind (assuming they wrote it well, because they believed in it) or what they might achieve for their child if they could afford it.

  • Planet Autism

    “If appealing to SENDIST (tribunal) however, tribunal use their own expertise to decide whether or not to include them.”

    The trouble is, that the tribunal don’t have the expertise. Having sat at an upper tribunal hearing requesting permission to appeal yesterday, I can tell you that the judge said (paraphrasing) the panel don’t have the expertise on the reports. They cannot be expected to, they are not health professionals. They will be guilty of approaching the matter in a tick-box way, on what their previous experiences at panel have been. They don’t know the individual child. They don’t know what suffering the child may have been through due to educational failures.

    Section 9.69 of the SEN Code of Practice states:

    “All of the child or young person’s identified special educational needs must be specified”.

    Sections 1.6 and 1.7 require LAs to act on the child’s and parents information and views.

    1.6 Children have a right to receive and impart information, to express an opinion * and to have that opinion taken into account * in any matters affecting them from the early years. Their views should be given due weight according to their age, maturity and capability (Articles 12 and 13 of the United Nations Convention on the Rights of the Child).

    1.7 Parents’ views are important during the process of carrying out an EHC needs assessment and drawing up or reviewing an EHC plan in relation to a child. Local authorities, early years providers and schools should enable parents to share their knowledge about their child and give them confidence that their views and contributions are valued and * will be acted upon. * At times, parents, teachers and others may have differing expectations of how a child’s needs are best met. Sometimes these discussions can be challenging but it is in the child’s best interests for a positive dialogue between parents, teachers and others to be maintained, to work through points of difference and establish what action is to be taken.”

    However, the judge stated this law does not mean the LA acting on the parent’s evidence. When I asked what did it mean in that case, he just said “it’s clumsily worded”. So the law is clumsily worded and judges can ignore it. I think not. It’s crystal clear to me.

    Until parents and children’s voices are respected, this fiasco will continue. Tribunals are sometimes failing in their jobs and letting children down.

    All the while they do this, LAs will rub their hands in glee at being able to take advantage of this and getting away with as little as they can.

    LAs are taking to a ‘t’, any professional report that does not categorically spell out an action necessary, even if the need itself is stated. They simply won’t include it.

    • @bjpren

      The Judge is supported by a professional with extensive knowledge and experience of SEN. It may be that they don’t know everything, but they should understand the principles of assessments. All reports should be fit for purpose, state needs, provision and the outcomes expected of that provision (SEN Reg 6 (1)). Tribunal should enforce this – although perhaps this is not happening as robustly as we would like. However, I have heard some very encouraging stories on this.
      SENDIST has a very specific role and must operate within its own remits. There is a hierarchy of evidence and unfortunately, parents and children’s evidence tends to sit at the bottom.
      All cases are individual, hence a discouragement of exemplars for specific conditions.

      • Planet Autism

        The judge in my case didn’t appear to be supported by anyone. He admitted upper tribunal are not experts and didn’t understand the details of the issues. If he understood the principles, then why did he dismiss categorical SEN law as “various official documents” and entirely ignore it (along with multiple other cited laws)? How is everything supposed to be about the voice of the child when they are point blank ignoring that voice? The whole thing is a farce of astronomical proportions. To have to ask permission to appeal a wrongful lower tribunal decision in the first place is wrong, if you have evidence and a good case they should automatically allow it especially if it’s wrong in law. To have to go through such a rigmarole with upper tribunal for them to be ignorant and blatantly ignore al the laws cited in the appeal form proves the obstructiveness and pointlessness of the whole system.