EHCP Transfer Clinic

ehcp transfer clinicWelcome to the new Special Needs Jungle EHCP Transfer Clinic.  Further down this page you can read readers questions and our answers about transferring your child's SEN statement to an Education, Health and Care Plan.

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

EHCP Transfer Clinic

Annual Review or EHCP?

Parent Question

My son is in Year 9 and is 14 in January and we have three issues.

We have been told that our his annual review is due in October 2016.  Are we better off waiting  and changing the review to January 2017 - for 'it' to be an EHC plan transfer? But we also heard the local authority are running three to four years behind, so they might refuse to transfer him to an EHC plan in January 2017 and might ask for an annual review instead? What's the difference between the two and is there an advantage to insist on an EHC plan transfer, instead? I am confused by their belatedness.

To put in some context, he's been diagnosed at an early age with classic autism and severe learning difficulties but since he started talking aged 7, then later stopped self-harming, he is a compliant, motivated and very happy boy especially since he absolutely loves homeschooling in the absence of any special school that specialises in music. He's been reported by his paediatrician, to be high-functioning [probably in terms of behaviour & coping mechanisms] although his therapist also rated him as 'very disabled' due to nil executive function and low verbal comprehension and non-verbal reasoning. The end result of consistent good behaviour is, notwithstanding his needs, our hours had been reduced to just three hours a week which is insufficient since his music ensemble session itself [which meets monthly] is three hours' length even before one factors in the travelling to and from central London.

Another concern is, we brought up at the last review the fact that his piano teacher reported in writing that he is musically gifted and asked for carer's hours to support him by taking him to a central London ensemble to which he's been invited to join to play and his SEN officer said this [support hours issue] has nothing to do with the annual review of his SEN statement which deals with his schooling & didn't think an EHC plan would do?  Doesn't it? Music outside of school is still education, after all. How can his musical talent be supported by an EHC plan?

How else  can we ensure his musical and sports obsession are adequately supported? Especially if any new SEN statement/EHC plan fails to name his hours? He loves playing the piano and accordion and is also obsessed with snooker and hopes to be a Paralympian (if snooker is successful in getting into Olympics 2024, he tells one and all). Can you help - any ideas?

Marguerite replies

Marguerite answers:

Annual Review

The Statement must still be reviewed at least annually. The process for the local authority doing this will still follow the old system unless the local authority has given notice that the review will be used to  transition to an EHC Plan, in which case the annual review meeting may become a transfer review. This is partly because as part of a transition from a statement to an EHC plan the local authority is required to conduct a transfer review.

Transition Timetable

Between 1 September 2015 and 31 March 2018,  local authorities must transfer children and young people with statements of SEN to the new arrangements:

  • in year 9;
  • when leaving youth custody; and
  • prior to them moving from:
  • relevant early years settings to school (including where the child remains at the same institution),
  • infant to junior school,
  • primary to middle school,
  • primary to secondary school,
  • middle to secondary school,
  • school (including school sixth forms) to a post-16 institution or an apprenticeship,
  • mainstream school to special school, or
  • special school to mainstream school

Transfer Review

As your son is in Year 9, the local authority must conduct a transfer review before he is in Year 10. To ensure that EHC plans are person-centred and focused on outcomes, an EHC plan must only be issued following a Transfer Review – an EHC needs assessment (section 36 of the 2014 Act). The EHC assessment process will allow local authorities and families to work together to consider existing assessment information within the statement or LDA and what, if any, further assessment information is required.

To conduct a Transfer Review, the local authority:

  • must give at least two weeks’ notice of the Transfer Review;
  • must undertake an EHC needs assessment in accordance with Part 5 of the Transitional and Saving Provisions Order 2014;
  • must have regard to the 2015 Code in undertaking the EHC needs assessment; and
  • must ensure that the child’s parents or the young person are invited to a meeting to contribute to the Transfer Review, in advance of the EHC plan being finalised.

Each local authority must issue a transition plan detailing how they will move those already in the system. This should have been published on their website in September. It may be a good idea to have a look at when Year 9 will be completed and give your SEN Officer a call to clarify the date and prompt them. The IPSEA website contains excellent information about Transition you can access it here.

Every child or young person with a statement must undergo an EHC needs assessment before they can obtain an EHC plan. There are no exceptions. A local authority must use an existing piece of evidence as part of the EHC needs assessment if parents, the young person, the professional who wrote the advice and the local authority agree it is “sufficient”. If you do not agree, then the local authority must seek new advice. This includes advice from an educational psychologist. All statements must be transferred to EHC plans by April 2018.

EHC Assessment

(Regulation 6 of the Special Educational Needs and Disability Regulations 2014 (“the SEN Regs”). An EHC needs assessment is specifically defined as an assessment of a child’s educationhealth care and social care needs. These, therefore, are the needs about which advice and information must be sought, and this is reflected in the SEN and Disability Code of Practice 2014 (9.46).

6.—(1) Where the local authority secures an EHC needs assessment for a child or young person, it must seek the following advice and information, on the needs of the child or young person, and what provision may be required to meet such needs and the outcomes that are intended to be achieved by the child or young person receiving that provision:

(a) advice and information from the child’s parent or the young person;

(b) educational advice and information—

(i) from the head teacher or principal of the school or post-16 or other institution that the child or young person is attending, or

(ii) where this is not available, from a person who the local authority is satisfied has experience of teaching children or young people with special educational needs, or knowledge of the differing provision which may be called for in different cases to meet those needs, or

(iii) if the child or young person is not currently attending a school or post-16 or other institution and advice cannot be obtained under sub-paragraph (ii), from a person responsible for educational provision for the child or young person, and

(iv) if any parent of the child or young person is a serving member of Her Majesty’s armed forces, also from the Secretary of State for Defence;

(c) medical advice and information from a health care professional identified by the responsible commissioning body;

(d) psychological advice and information from an educational psychologist; 

(e) advice and information in relation to social care;

(f) advice and information from any other person the local authority thinks is appropriate;

(g) where the child or young person is in or beyond year 9, advice and information in relation to provision to assist the child or young person in preparation for adulthood and independent living; and

(h) advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from.

Timescales

Regarding timescales, the local authority must provide a minimum of two weeks’ notice of the date of the start of the Transfer Review Process. From the point that the Transfer Review commences, you and your son will have appeal rights under the new system. Appeal rights relating to statements of SEN under the 1996 Act will no longer be available to you.

Home Education

The new SEN Code envisages two different types of "home education."

10.31- In cases where local authorities and parents agree that home education is the right provision for a child or young person with an EHC plan, the plan should make clear that the child or young person will be educated at home. If it does then the local authority, under Section 42(2) of the Children and Families Act 2014, must arrange the special educational provision set out in the plan, working with the parents. Under Section 19 of the Act, a local authority must have regard to the views, wishes, and feelings of the child and his or her parents, or the young person.

10.32 - In cases where the EHC plan gives the name of a school or type of school where the child will be educated, and the parents decide to educate at home, the local authority is not under a duty to make the special educational provision set out in the plan provided it is satisfied that the arrangements made by the parents are suitable. The local authority must review the plan annually to assure itself that the provision set out in it continues to be appropriate and that the child’s SEN continue to be met (see Chapter 9). Where the local authority has decided that the provision is appropriate, it should amend the plan to name the type of school that would be suitable but state that parents have made their own arrangements under Section 7 of the Education Act 1996.

The code goes on to say, 10.35 - Local authorities should not assume that because the provision being made by parents is different from that which was being made or would have been made in school that the provision is necessarily unsuitable. Local authorities should also consider using their power to help parents make suitable provision.

Music

It may be possible to receive support with this via a personal budget if it supports his SEND. You would need to link this to an outcome. Sometimes the local authority can refuse to identify a personal budget, and they will generally do so when the special educational provision is being provided as part of a larger budget (for example a contract with the NHS to provide all speech and language therapy or occupational therapy) the local authority will say they cannot separate out the personal budget from that overall larger budget.

You could ask for a social care assessment for your son, and they could provide him with a personal budget/direct payment for activities outside of school hours. I know some local authorities offer a short break service, and you could enquire about this service.

In conclusion, I would go through his statement and highlight the parts which are current. The parts which are out of date will allow you to decide which assessments are required. As you are thinking about him returning to school, I would encourage you to ensure the assessments factor in transition into his outcomes. If you require further information about outcomes, you can read my article here.

Can an LDA transfer to an EHCP without completing a EHC assessment?

My 18-year-old son is at college. In the middle of transferring his LDA to EHCP. A man appears to be writing the draft, no assessments been done, no communication from the LA at all and no first letter. Nothing at all.

Apparently, the draft has been sent to the LA and Inclusion Manager at the college.  The Inclusion Manager informed me that she has contacted the Educational Psychologist, for an assessment but heard nothing yet. The Inclusion Manager is going to  complete a full assessment of his learning needs and then provide me with a  report.  In addition, she will complete section F then send it to LA and the LA will then send my son his EHCP. Is this legal?

Marguerit replies

Marguerite says:

Regulations:

The Children and Families Act 2014 (Transitional and Saving Provisions)  (No.2) Order 2014 is the set of specific regulations dealing with transition. Amended in August 2015 by the Children and Families Act 2014 (Transitional and Saving Provisions) (Amendment) (No 2) Order2014 to make a change to the transitional time line. Referred to as the TP Regs.

Guidance:

The Department for Education issued departmental advice on transition. The current version then is the one issued in September 2015 and it is called“Transition to the new 0 to 25 special educational needs and disability system: Departmental advice for local authorities and their partners".

The answer is No! Young people who have an LDA are entitled to ask for an assessment under the C & F Act 2014, recognising the different level of legal protection offered by an EHC plan as compared with an LDA, i.e. the new law applies to them now.

For young people with LDAs, the transition process must have been completed by 1 st September 2016 as any LDAs remaining after this date will cease to have any legal effect. However, Stuart Miller, from the DFE wrote to the LA's and extended this deadline until December 2016. A key part of the procedure for transition is the duty of the LA to give notice that the EHC needs assessment is to begin–the LA has to give two clear weeks’notice. The process should take 20 weeks which includes the notice period.

A key part of the procedure for transition is the duty of the LA to give notice that the EHC needs assessment is to begin–the LA has to give two clear weeks’ notice.  You can obtain further information about the EHC assessment here.

There is some confusion about the entitlements of young people with LDAs but the TP Regs makes the position clear. LAs will have their own timetable for transition  and this will include young people with LDAs. However the fact that a particular LA has in mind to transition their young people by (say) 2016 is not a legal reason for the LA to say No if a young person requests an EHC needs assessment earlier than that which they are entitled to do. If the LA does say No, the young person will have a right of appeal to the Tribunal.

IPSEA has produced a timeline which you can download from here. This explains the timeline for the transition process from a statement or an LDA to an EHC plan in more detail.

You can also complain to the Director of Children's Services when the LA does not seek the advice required by law as part of the EHC needs process. IPSEA have produced a model letter which you can download from here. If you don't receive a reply after 2 weeks you can contact IPSEA for further advice.

If the LA issues a final EHCP to your son without following the legal process contact IPSEA Tribunal helpline immediately.

 

Can my 22 year old grandson with autism get an EHCP?

My Grandson, who's 22 has Autism and learning disabilities. He went to a special school until the age of 18 and had a statement.

He's had many problems since then to achieve professional support to get cohesive personal skills, continued basic education and vocational training to fit him for the adult world. 
As a family we put together a programme of voluntary work at a farm, visits to the gym, Mencap social activities etc.

However over the last two years, he has attended the local FE college and passed Level 1 in animal care. They say they cannot offer him progression to Level 2. They suggested an internship at a hotel chain. Although he wants to work with animals he agreed to do two trial sessions, which he enjoyed.

The college now say that the internship is no longer possible but are giving no reasons. They say they are not able to offer any provision to him at all because of funding constraints. My grandson still believes that he will return to college in September or work at the hotel chain because that is what the college led him to believe. He has just had a major upset in his personal life so we feel he could not cope with these disappointments at the moment.
We don't know what can be done to determine options for him.

Having just discovered the SEND guidance we are wondering if an EHC plan could solve some of these difficulties.
 Do you think this is the case?
 Would this succeed four years after leaving his special school?
Can you advise.

Marguerite replies

Marguerite answers

I would suggest you request an EHC assessment if you believe your son’s learning difficulty or disability is holding him back at college, and you or your son believes that the college is not able to provide the help and support which is needed.

The EHC needs assessment is the process for the Local Authority(LA) to establish your son’s needs and the provision he will require. The whole process of EHC needs assessment and EHC plan development, from the point when an assessment is requested (or a child or young person is brought to the local authority’s attention) until the final EHC plan is issued, must take no more than 20 weeks.

IPSEA have a produced a model letter, which you can access here to request the EHC assessment. Ensure you ask in writing and keep a copy of your letter. Make a note of the six-week deadline for the LA’s reply.

Where a student has a learning difficulty or disability that calls for special educational provision, the college must use its best endeavours to put appropriate support in place. The effectiveness of the support and its impact on your son’s progress should be reviewed regularly, taking into account his progress and any changes to his ambitions and aspirations, which may lead to changes in the type and level of support. This should include accurate information to evidence the SEN support that has been provided over his time in college and its effectiveness.

Colleges are not expected to meet the full costs of more expensive support from their core and additional funding in their main allocation. They are expected to provide additional support which costs up to a nationally prescribed threshold per student per year.  Your LA should provide additional top-up funding where the cost of the special educational provision required to meet the needs of an individual young person exceeds the nationally prescribed threshold. This should reflect the cost of providing the additional support that is in excess of the nationally prescribed threshold.

Colleges are funded by the Education Funding Agency (EFA) for all 16-18-year-olds and for those aged 19-25 who have EHC plans, with support from your LA for students with high needs.

Your son has made progress, and it’s unfair to prevent him from progressing, and it’s damaging for his self-esteem and his trust if they have led him to believe he can return. Your story is all too familiar, and it’s the cohort I am most concerned about, for the reasons you have given.

Keep us posted on your developments.

Can the Local Authority change the wording of the provision in an EHCP?

Parent asks:

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

 

Helen Gifford replies

Helen answers:

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

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

 

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

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

Can the Local Authority take longer than 20 weeks during the transition process?

Parent asks:

When is a child transferring from statement to EHCP and going into Key stage 3 are the Local Authority (LA) allowed to take longer than 20 weeks?

As parents, our draft was sent to us at the last possible moment, and we received it three days later which only gave us ten days to respond. The  LA is blaming us for raising issues about the draft, and that's why the final plan was so late despite the fact it was already two months over the 20-week deadline when we received the draft.

The school that the LA want her to attend received the draft plan before anyone else. The professional's and the current school didn't receive the draft until after the 15th February.

Marguerite replies

Marguerite Answers:

Children or young people transferring to a different phase of education or coming into year 9 during 2016 or 2017 - the LA must carry out and conclude an EHC needs assessment before 15th February in the year in which the transfer to a different phase of education takes place or 31st March where the transfer is to post 16 institution. For those coming into year 9, the transition must be completed before they come to be in year 10.

The maximum timescale is 20 weeks, which includes the notification letter. There are some circumstances in which the LA may not be required to comply with the 20-week time limit if it would be impractical for them to do so.  These are where:

  1.  the authority has requested advice from the head teacher or principal of a school or post-16 institution during a time when it is closed for a period of longer than 4 weeks (i.e. in the summer holidays)
  2. the authority has requested advice from the person identified as having responsibility for special educational needs from a provider of relevant early years education during a time when it is closed for a period of longer than 4 weeks ( i.e. in the summer holidays)
  3. exceptional personal circumstances affect the child or the child’s parent, or the young person during that time period; or
  4. the child or the child’s parent, or the young person, are absent from the area of the authority for a continuous period of not less than 4 weeks during that time period.

If one of the exceptions applies, the LA will only be able to rely on it if they can show that making the decision on time would be impractical because of the exception. The LA is still be required to notify you of their decision on your request as soon as practicable.

If none of the exceptions applies to your case, then it would appear that the LA is in breach of their legal duty. You may want to complain formally to the Monitoring Officer at the LA about the breach. If you are not satisfied with the outcome of your complaint, you can complain to the Local Government Ombudsman (LGO).  The LGO expects complaints to be made first of all to the LA before they will investigate. If there is an alternative remedy such as a right of appeal to the tribunal, then the LGO will normally wait for the outcome of the appeal before investigating, as a decision may be needed before they can assess the injustice.

There is no date specified in law by which the draft EHC plan must be issued, but for the transition process to be completed within 18 weeks, this must be issued by week 12 to allow for the draft EHC plan consultations. In conducting Transfer Reviews, LA must have regard to the 2015 Code, including the content as appropriate of chapter 9.

You have at least 15 calendar days after receipt of the draft EHC plan in which to:

  1. make representations to the LA about the contents of the draft EHC plan;
  2. ask for a meeting with an LA officer to discuss the draft EHC plan;
  3. tell the LA the type of school/college (mainstream or special) and the actual school/college you would like named in the final EHC plan.

When you received, the draft EHC plan the LA must advise you where you can find information about the schools and colleges that are available for your child to attend.

Section I of the draft EHC plan must be left blank because the LA should not start the process of drafting the contents of an EHC plan with a particular school/institution or type of school/institution in mind. The EHC Plan should, therefore, be written based on the needs of the child or young person and the provision be put in place to meet those needs and achieve the outcomes identified.

The Local Authority must consult with the school/college you have requested, and the school or college should respond within 15 days.

Can you help me write some good outcomes for my autistic son?

I've just had a transfer review for my son who is in year 5. The school had document they shared with us "Educational Evidence for EHCP Transfer review". One section was Outcomes, where they had listed four. However, all the outcomes were focussed for the end of year 6, so pretty short term. Should they be longer term?

The school said we can add some of our own, but I'm struggling to work out what sort of things are appropriate. Are you able to give me some examples of some good outcomes? (which will get me thinking along the right lines)

A little bit of background information - my son has high functioning autism with a lot of sensory processing difficulties. He likes to be in control and can be extremely demand avoidant. When he is overwhelmed or anxious he will either shut down, or display challenging behaviour. Academically he is about a 1-2 years behind, but this is probably due to a rocky journey through primary education rather than ability.

At the transfer review, you should be considering any existing assessment information within his statement and what, if any, further assessment information is required. The advice and information gathered during the EHC needs assessment must be set out in appendices to the EHC plan in section K. You, the school, your son (if appropriate) and professionals should be writing the outcomes together.

 Marguerit replies

Marguerite answers

There must be a clear distinction between outcomes (Section E) and provision (Section F). The provision should help your son achieve an outcome.  The EHC plan should contain a range of outcomes over varying timescales, covering education, health and care as appropriate. You shouldn’t be changing the long-term outcomes every year unless your son achieves the outcome or it’s no longer appropriate.  

 You may find my article about outcomes helpful; you can find it here. Have a think about the following:

  • Is he able to transition from one activity or room easily? Will he able to transition to secondary school easily?
  • Is he able to communicate his wants and needs appropriately?
  • How are his self-help skills? Can he make a sandwich or a drink?
  • Is he able to travel independently within his community?
  • Is he able to make and maintain friends?
  • Is he able to keep himself safe?

You may find these examples as good starting point:

  • XXX will be able to understand routines and manage small changes within his learning environment.
  • XXX will be able to improve his mood and behaviour by managing his emotional regulation and resilience in line with his cognitive abilities.
  • XXXX will be able to learn in a meaningful way, where skills are learnt and/or consolidated in the context in which he will use the skills.
  • XXX will be able to share his attention and engagement in a range of short structured adult led activities.
Does a statemented child need to transfer to an EHCP before moving to special provision?

Question from a parent:

I am a parent of a child with SEN and also an independent supporter. Our local authority are saying any child with a statement who wants to move from mainstream to special needs needs to transfer to an EHCP first.

This is upsetting parents because it's often taking them a while to accept that mainstream isn't working and then the change is held up by the EHCP transfer process. The problem is, I've been unable to find it written anywhere to say this is absolutely necessary. We have some children on reduced timetables and literally just being managed in mainstream while this goes ahead and I'm just wondering if this is something I can challenge.

Marguerite replies

 

Marguerite answers:

It appears the LA is adhering to the Transfer Guidance Sept (2015),

4.12 Between 1 September 2015 and 31 March 2018, local authorities must transfer children and young people with statements of SEN to the new arrangements:

  • in year 9;
  • when leaving youth custody; and
  • prior to them moving from:
    • relevant early years settings to school (including where the child remains at the same institution),
    • infant to junior school,
    • primary to middle school,
    • primary to secondary school,
    • middle to secondary school,
    • school (including school sixth forms) to a post-16 institution or an apprenticeship,
    • mainstream school to special school, or
    • special school to mainstream school.

However, what’s concerning is, if the LA has acknowledged the child or young person requires a special school, they should start the process, consult with parents and allow the child or young person to start the school as soon as possible to reduce the anxiety for all involved.

Reduced timetables are not an option and not a long term solution. In fact, they should be avoided where possible.  We know that LAs are struggling to adhere to the 20-week deadline, keeping a child or young person at home is only going to exacerbate the situation.

Another positive for moving the child or young person within the process is that the new school can contribute to the short and long term outcomes and write a legal and meaningful EHC plan.

As you are an Independent Supporter, I would definitely organise a meeting with the SEN department to share the concerns of the parents as soon as possible.

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

Parent Question:

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

EA have said: 

  • Essentially, for young people without an EHCP the funding for post 19 is through the skills Funding Agency, not the EFA & LA. This does not meant that additional support is available. Skills FA do provide additional learner support.
  • So, it should not be the case that the college cannot offer without an EHCP in place. There may be exemptions to charges as a post 19 ‘adult’ course charges will come into play. There are exemptions, and circumstances may be that full charges will not be made. College can explain the criteria.

Will be starting the appeal process next week (whatever that actually means). Can you help or advise?

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

Marguerite Hat replies

Marguerite answers:

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

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

The Transition Guidance, 2015 states the following: 

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

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

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

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

Funding: 

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

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

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

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

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

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

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

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

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

However, you shouldn't need to appeal - the LA are clearly breaking the law and you perhaps should contact your case officer in the first instance and pass on this information above to give them a chance to rectify their error, because there is no way they can win an appeal. If they refuse, then appeal. 

I hope this is useful

How can my son’s statement be transferred to an EHCP if my LA isn’t providing any education?

My son is 18yrs old, has an SEN and my local authority want to start the transfer over to an EHCP even though my son has not been provided ANY education according to his SEN since May 2015.

I want them make provision as per his statement but all my LA want is to meet to begin the transfer process. I read with interest that Ofsted areas where outcomes for children and young people are causing concern or where LAs are failing to complete assessments or EHCPs within statutory timescales.

Helen Gifford replies

Helen answers:

You are right, the local authority must provide the special education provision that is your son's statement, and you are completely within your rights to insist on that. Whilst your son has a statement and attends school, the local authority must arrange all the provision set out in Part 3 of the existing Statement and arrange for the school placement in Part 4 of the statement under the Education Act 1996.

I think it would be helpful for us to clarify what the issue is - is your son not getting any education at all, or is he attending school but the support set out in the statement is not being provided? If he's not at school, did he leave school in May 2015 with any arrangements in place for his future?

If your son is not in school, I suspect your authority is viewing the statement as 'lapsed' as Statements only apply to young people who are over statutory school age if they are attending a school. However, the raising of the participation age to 18 does mean that the local authority should be ensuring that your son is engaged in education or training, and if he is not, then they are failing in their duties under that requirement as well, so that is another point that you can raise with them.

If your son is attending school, and will be moving to college in September 2016, then I think the transfer to the EHCP urgently needs to start now as it should have all been done by the end of last March. If he will be staying at school for another year, then the transfer could wait a bit and the authority concentrate on getting the provision in place that they are required to be making as the truly urgent piece of work for them.

Sorry to be a bit vague, but if you could let me at a bit more detail about the situation you are in, I will get more specific. My contact details are at the bottom of this email, after the forwarded message.

I look forward to hearing from you!

Is this an Annual Review or a Transfer Review?

My son is in Year 5. We have been asked to attend his annual review meeting and his school has given us a document to fill in before the meeting. It's different from anything I've been asked to do before. I have been informed by our local Independent Support Service that the document is usually used as the parents' views appendix to the EHCP.

It also says on the booklet that: 'This booklet records useful information that will help us convert your child's SEN Statement into an Education Health and Care Plan...'

I thought, hold on this meeting should be classified as a transfer review meeting, not an Annual Review, so I emailed my case worker at the LEA. Here's what I received by reply:

'I note your disappointment with regard to the amended final not incorporating all the amendments you had requested.

A colleague in our Transfer Team will be responsible for transferring your son's Statement to an EHCP, but as they are yet to be allocated I cannot give you their contact details. The Senior Planning Co-Ordinator in the Transfer Team will be overseeing the process.

The meeting is a normal Annual Review meeting and should be convened in the usual way. The documents provided for this meeting will be used to inform the transfer process, but it is not the start of the process.  You will be informed in writing by the Transfer Team regarding the start of the process.

The school have arranged the AR meeting and they should ensure that all reports are circulated prior to the meeting as well as letting you have a list of attendees. Hope this helps to answer your queries at this stage.'

I haven't seen any assessments or reports... but I am expected to complete my contribution to the EHCP now and discuss it with the LA in an Annual Review Meeting. This does not seem fair or right! Is it correct for the LA to do this?

Helen Gifford replies

Helen answers

I have sympathy with you in dealing with this documentation. It's a frequent difficulty that I have come across with annual reviews where local authorities have issued the new paperwork for EHCPs and are asking that it issued for statement of SEN reviews that are not transfer reviews where it really does not fit, and causes expectation of a transfer to an EHCP before the local authority is intending to do it.

My best guess of what has happened is that this is intended to be a 'normal' statement review of the type you have had before, with the transfer to EHCP intended to happen in Year 6 by the local authority - when they must do it. I think that the school have given you the new forms that they have been sent by the local authority, not realising that this may not be entirely suitable at this point in time. The school may also have been expecting this to be a transfer review as the end of year 5 is not an unreasonable time to do this.

You will know when it is a transfer review as the local authority must tell you at least two weeks before they start the transfer to EHCP process that they are about to start this. As your son will be moving into the secondary phase of his education in September 2017, the formal transfer process must start early in the next academic year so that it will be completed by 15 February 2017.

You are not obliged to fill in any particular form for the annual review of your son's statement. If you do not want to fill in the form you have, you can submit your views on how the past year has gone and the suitability of the provision, and what you would like to happen in the future in any format you like e.g. a letter or a copy of the forms you have used before.  It would not be unreasonable to then ask to discuss the form you have been sent at the annual review meeting, so that you can decide if you would like to fill it in now or wait until the transfer process actually starts.

The school is required to send you all the reports that will be submitted for the statement annual review from them and any external practitioners (e.g. speech and language therapist, occupational therapist, specialist teachers etc.) two weeks before the annual review meeting, so if you don't have them, you are well within your rights to insist that they are supplied. One word of warning - the school may not have the reports from external practitioners two weeks in advance and will have little power apart from pointing out that this is what the relevant legislation requires to get them. So, the best case scenario may be that the school sends them to you as soon as they can.

Hope this helps.

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Late EHCP drafts and extensions timescales for amendments

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

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

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

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

Helen Gifford replies

Helen answers

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

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

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

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

I hope this helps

My daughter’s draft EHCP is vague

Parent question:

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

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

Marguerite replies

Marguerite answers:

 

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

 

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

 

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

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

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

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

 

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

 

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

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

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

 

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

Section 39 (4)

This subsection applies where—

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

 

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

 

My LA has given my son something that’s not a legal EHCP!

Parent's Question to EHCP Transfer Clinic

My son is in year 9 and has an IPRA that his SENCo has tried and failed to get converted to EHCP.

Current provision is 15 hours per week support (£11000) that they are seeking to increase because of year 10 and GCSE exams etc. Yet to hear back from the local authority about this however I know that support up to 25 is critical for my son. What would be my next step or should I just wait for the LEA to account for their decision, then do something?

Marguerite replies

Marguerite answers

Thank you for the question. I have investigated this document the “IPRA”.  The local authority issued this document instead of Statement. It has no legal status and will remain in place while the young person is in education. Do not accept it.

I urge you to submit a request for an EHC assessment immediately. You may find the flowchart,  “The new SEND system Flow Chart 2: Requesting an Education, Health & Care Assessment “on SNJ helpful. You can also receive support from your local Independent Supporter and IPSEA provide guidance on “Asking for an EHC needs assessment.”

If the local authority refuses to assess, IPSEA provides a refusal to assess resource pack on their SEND Tribunal Resources page. 

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My son’s transition to an Apprenticeship is a mess, please help!

Parent's Question:

We are in a situation that our LA have made an error, whether mistakenly or purposefully they have issued the transfer from statement to EHCP final document while still in consultation. 

On the 2nd November 2015 we had our transfer meeting for our son (born late 1999). We had not received any documents before the meeting. No one from the SEN department was at the meeting, no one from the transfer team. Admittedly, I didn't totally understand the process and what had to go into the document. I was also submitting his change from Disability Living Allowance to Personal Independence Payment at the same time given his 16th birthday was close and my other son's EHCP transfer meeting was also around then. This was an incredibly stressful time.

The next we heard from the LA was a request to name the post-16 placement by 31st December. Unfortunately we were in no position to do this as our son really had no idea what he wanted to do or where he wanted to go. We were advised that we didn't need to return that document until the EHCP had been finalised. 

We continued to look at colleges and options available to him. We visited colleges and events and during one of these events the options of apprenticeships was mentioned. We approached school and other people to ask if the EHCP could support an apprenticeship - no one knew.  

We did some digging and were given a small piece of information from someone at the LA that the SEND Code of Practice states the EHCP could support an apprenticeship and he was going to find more. We contacted school to say we needed more put into the EHCP document. 

Coincidently, we found the dream apprenticeship job for our son - a football coach at our local Football club. We were already looking at that area's college so it tied in brilliantly and was not too far away that I could assist him with travel (as that was another big part of what was missing from his EHCP!!). We applied for the apprenticeship and we phoned the service provider if they thought they could support him,  she said yes and asked for a copy of his supporting documents of which we could only send the first document across and applied for the apprenticeship.

School were about to arrange a meeting when the draft document turned up. We contacted the LA to say we did not accept the draft,  there were many flaws, no preparing for adulthood, nothing to support an apprenticeship,  no hours stated, no contingency plans and several other issues. When they returned my call they asked for amendments over the phone, but we requested a meeting. 

During the meeting we went through the whole document (even though they tried to railroad me into just giving the amendments).  They agreed they would be making changes, but said they did not know about how the EHCP would support an apprenticeship and would seek advice.   I also asked where all the preparation for adulthood info was, both people from the LA looked blank and said they didn't understand what preparation for adulthood meant! 

On reading the new draft sent through, they had made the changes as suggested by parent partnership. They had added one sentence in part b saying my son would like to do an apprenticeship - nothing else! Nothing had been added about Preparing for Adulthood. Then, we received the 'final' document which was, in fact, a copy of the initial draft without the subsequent amendments!

Many thanks for any forthcoming advice.

Helen Gifford replies

Helen answers:

This is a horrible mess, as you know, and you are absolutely right to be challenging it. 

I think that the biggest issues are:

  1. The local authority not running a proper transfer process to the EHCP so that you and George were fully involved and informed.
  2. The local authority not issuing a final EHCP indicating George's post 16 placement, or at least the type of placement that would be suitable, by 31 March.
  3. Not having a focus on preparing for adulthood in the EHCP. (With the caveat, that although this is a statutory deadline, lots of authorities missed it this year.)
  4. Discussing changes to the first draft EHCP with you, then issuing a second draft EHCP with some in, and then issuing a final EHCP that removes all those changes.
  5. Following on from all these points above, not supporting a planned transition to his next placement.

As your son is due to leave school this summer, the new EHCP was required to be issued by 31 March 2016, which would allow plenty time of time for an appeal to the SEND Tribunal against its contents if needed, and for a detailed transition plan to be drawn up between school, college and all other relevant people, and then put into action.

The local authority are required to inform you that they are starting the transfer process and to provide you with information and signposting to services that support you so that you understand the process. It is not up to you to find it all out on your own.

Also, reports to support the transfer meeting should have been circulated in advance. It is not fundamentally unreasonable for the local authority to request an indication of your choice of post 16 placement by 31 December 2015 as that would have supported moving towards a final EHCP by 31 March 2016. However, that request should have been in the context of working with you on the transfer to the EHCP, and not an isolated request as you report it was. It is not unusual for young people still be to be undecided at the Christmas before they leave school after all.

I would expect the authority to have a post 16 placement in mind for your son, or at least a type of placement by now, as they should have done so by 31 March. As he is transferring from school, it is not lawful for the authority to issue an EHCP that only refers to his secondary school, so they must address that now, and I would advise you to follow that up with them. I understand that your son has his apprenticeship interview soon. If that is very soon, it may be worth waiting for that outcome before pressing the authority on this point. If not, I would push them on it now, so that at least plans can start to be made for this September. In the Code of Practice, paragraph 9.182 specifically refers to the possibility that young people may change their minds about their post 16 destination and how to deal with that, so George not yet having a firm and settled choice is not a barrier to moving things forward now.

For the avoidance of doubt as your authority appears to be confused by apprenticeships, paragraph 8.32 of the Code of Practice clearly states: Young people with EHCPs can retain their plan when on an apprenticeship.

To turn to the significant issue of the final EHCP being the first draft with none of your amendments included. This really is a serious failure of administration. When a new draft of an EHCP is issued with changes agreed, it has to the one that becomes the final document as otherwise the whole process of discussion with you is pointless. This is so startling, I really do assume it was a mistake, so at the very least, it would be reasonable to insist that the final EHCP is reissued including the agreed changes. However, the absence of a focus on preparation for adulthood remains a serious issue too. 

I understand that the Head of Service has offered an investigation into what has gone wrong here, which is good, but I don't think it is enough. I think that you are absolutely within your rights to be demanding a comprehensive action plan to get things sorted out as a matter of extreme urgency.

As you now have a final EHCP, this does at least give you (or your son if he is now over 16) the right of appealing to the SEND Tribunal over the contents of section B (his special educational needs), section F (special educational provision) and section I (placement).

You will need to at least consider mediation first, but I do think it is worth thinking about making an appeal to the SEND Tribunal, and asking for an expedited process as your son starting his new provision in September. Putting an appeal in does not mean that you have to go all the way through the process - it is always open to the person making the appeal to withdraw it.

If you are not convinced by the actions so far of the Head of Service, it may be worth putting an appeal in, just to ensure that you have that potential approach to resolve things running. Having said that, an appeal process will not be hugely helpful in getting a more preparation for adulthood focused EHCP unless you already have supporting evidence that covers this that has simply not been included in the EHCP. From what you have said about the whole transfer process, I suspect you do not. In this case, liaising with the authority, and/or formal mediation may be more helpful in getting that evidence collected to support a rewrite of the EHCP. Don't forget that Parent Partnership/ IAS Service and IPSEA can help with all this.

Our annual review was an EHCP transfer and no one told us!

Parent's Question

I am in the middle of a time bomb not sure how I got here but dealing with it the best we can.

My son is 12 and like everyone else a long battle to get a statement, four attempts, home schooled at 8 years old until we won a statement as he became ill with no support/understanding. We are still battling for diagnoses but we know he has ASD/hypermobility syndrome/dyspraxia and other issues.

We moved to a new county and wrongly thought the statement was portable and laws surrounding this would be followed, wrong. After a nightmare six months out of school as no school place here and every attempt not to follow laws to ensure we had tutoring at home, timescales for decision for a school our MP got involved as we were going round in circles.

My son has been in a specialist academy (a learning curve how different they are) since last Sept, settled, happy, thriving then another nightmare began.

Annual statement review was started in February this year, confirmed by school and LA so we went to the meeting. The LA did not turn up or a representative so we filled out annual statement review paperwork, sent our reports off, teacher was happy, no issues , reports we have sent with it and head teacher signed off all agreed his on the tight school.

I felt sick as what came in the post was an EHCP, no one had told us this was a transfer meeting and we had asked. We have complained as its so poorly written, none of our reports used and apparently my son has a diagnoses of DCD! I am so angry and the school head of phase 3 phoned after I complained to the teacher asking what my problem was he is in the school until he is 19! As they are changing, teachers leaving we don't know that and another parent I was friendly said I am making a fuss over nothing.

The school said not their problem so are academies above the law? Should we just let them do what they like as a phone call says he is there until he is 19? It beggars belief we were put in a 18 week procedure we had no warning about and given 12 days to respond and the LA letter states it has been converted by them...in a council office and we are not the only parent going through this but no one we spoke to has challenged it.

I am starting to feel negative vibes from the school as they are picking up failing primary schools at a rate of knots and another specialist school in another area as well as a teaching school. I am shocked at their conduct and frightened if I don't back down or roll over my son is going to feel the outcome.

The policies on the school website are out of date and one teacher told a parent she didn't know what a EHCP as new to the school. So are they exempt from the new laws as they we a charity trust?

We are fighting this as I won't accept a statement with what they have written as the lea have backed down from the EHCP as it does not reflect my son. They say a mistake has happened but surely the lea who issue statements should not be making mistakes like this and we know we are not the only ones.

I am going for a second opinion with a ASD expert by asking clinical commissioning group for funding in NHS but not hopeful as we can't afford NAS fees. I really don't understand the school as they say it's nothing to do with them but they lit the touch paper and we are still not get ot or physio as per statement.

Thank you

Helen Gifford replies

Helen answers:

Thank you for contacting SNJ's Transfer Clinic.

I just want to start by confirming what you know - this is not what is supposed to happen with an EHCP transfer.

A transfer review must be started by the local authority, it cannot be started by the school. What you have described, although common, is not on, and in fact unlawful. The local authority must tell you as parent and the school of the date when they intend to start the transfer process to an EHCP, and they must do this at least two weeks before they start. They cannot just decide that a standard statement annual review has become a transfer to EHCP process as they appear to have done in your case.

Once the transfer to an EHCP has started, the local authority then must carry out an EHC assessment as part of that transfer process. This is very similar to the assessment that was carried out before your son's first statement was written, and again the local authority must ask for advice from you (parent), school, health, an educational psychologist and social care. As you can see, this is a process that cannot happen without parents' involvement - there is no way that a parent can be ambushed by the unexpected arrival of an EHCP as you have been within the law.

Technically, problems with the EHC transfer process are the local authority's responsibility, not the school's, but I am very surprised to hear that the school did not want to support you.

Ultimately, it is the local authority's responsibility to ensure that all the provision in your son's statement or EHCP is arranged. That's where the legal responsibility rests, although it is up to the school to actually do most of the doing. So, you need to raise the issue of not getting physiotherapy and occupational therapy with the local authority. They may be expecting the school to make this happen, but as it is not, the local authority cannot wash their hands of it, and need to make it happen.

There is an issue with the two sets of legislation (statements and EHCPs) that are running currently. Academies did not exist when the Statementing legislation was passed and so they are not included in it, although schools that have become academies in the last approximately six years have had clauses put into their funding agreements requiring them to follow the statementing legislation, so they are obliged to do so. All state funded schools including academies, and some independent schools, are included in the EHCP legislation and so must follow it.

You are doing the right thing in resisting the transfer to an EHCP until the right information is available. If you have not done so, don't forget that advice and support for you can be got from your local Information, Advice and Support Service.

And good luck!

Our daughter’s school won’t allow access for an independent assessment

Question from Parent

We have a statement to EHCP transfer review for my 14 year old. Since she entered special schools in 2010, we don't feel she's made much progress especially in language/communication and sensory issues that hinder her educational abilities.
We wanted to commission private assessments for the review process, but the school has disallowed access apart from insufficient time slot of 30 minutes - this was learned at last moment after weeks of requesting access. It makes us feel like this review meeting and subsequent process will not fully take account of her needs and thus open up solutions for provision.

What are our rights in terms of soliciting alternative views to the assessment? Will it be more advantageous to wait to do private assessment till things are more advanced in terms of a draft EHCP to which respond?

Also we still have had little contact with the school's occupational therapist and SALT despite raising concerns in these areas so we will we haven't had any opportunity to input into their assessments if they do submit a report as requested. Shouldn't that normally be expected?

Is it best to escalate these issues above to school leadership or take this to the LA as the school appears in control over both the process and the eventual provision, although I understood it should be with the LA?

Once at the review meting, if any of it appears lacking in rigour or supporting reports and info is there sufficient time to raise this as an issue for the process before a new plan is created by the LA?

Helen Gifford replies

Helen answers:

This is a highly unsatisfactory situation that you find yourself in.

I would be inclined to escalate your concerns to the local authority, copying in the school leadership team. It is the local authority who have the final responsibility for both the transfer to an EHC Plan including the reports gathered as part of that transfer process, and for arranging the provision that is set out in your daughter's statement and EHC Plan when it is written, so they definitely need to be involved.

You are fully within your rights to obtain private reports, and I would ask the local authority to ask the school to allow the people carrying out the reports to have reasonable access. The only time when I am aware of compulsion becoming possible with the school is if you end up appealing to the SEND Tribunal when you could ask the Tribunal to direct the school to allow this access, but you are not there yet. However, it is no-one's interests for the private assessors to have to guess how things are at school so hopefully the local authority will work with you to overcome this.

Sadly, it is not uncommon for school based therapists to have relatively little contact with parents. However, it is not terribly helpful as most therapy interventions are best implemented across both the school and home. The Code of Practice might help here. Section 9.50 requires that the local authority gives anyone who they approach for advice as part of an EHC assessment (which the transfer process to an EHC Plan includes) copies of representations from the child's parents, so I think when you contact the local authority, tell them that you want your concerns shared with the relevant therapists, so that they can then take them into account with their advice. I also recommend asking that the EHC Plan when written includes liaison with parents as part of the therapy provision.

The best time to seek private advice rather depends on the circumstances. Where there is a reasonable chance of thorough advice being supplied from the local authority commissioned sources, I would suggest waiting until those reports have been gathered as you may not need any extra advice or may end up paying for a report that says pretty much the same thing as the local authority one. However, where you do not have faith in the services that the local authority will approach, it is worth considering arranging the private reports sooner and submitting them to the local authority so that they are available for the drafting of the EHC Plan. I must warn you that where the local authority's advice differs from the private advice, the local authority is likely to prefer their advice over yours, but they must be able to give reasons to justify this decision on the basis of your daughter's needs.

Good luck!

Should every young person with a Learning Difficulty Assessment get an EHCP?

Parent's EHCP Transfer Clinic Question

Should local authorities only be transferring students who have a Learning Difficulty Assessment (LDA for 16+) on to an EHCP if they are high cost or high needs learners?

What are the reasons why someone would not be issued a EHCP? The LA are saying that their needs can be met through the local offer, but what then distinguishes them from a mainstream student without SEN? And students with the similar needs as them are being transferred whilst they are at school.

Hope this makes sense.

Helen Gifford answers

Local authorities are required to transfer students with an LDA (Learning Difficulty Assessment) to an EHCP where the student will be continuing in education and requests and needs one. The underlined word is the crucial one here as it is open to a local authority to decide that the student does not need an EHCP, and that their learning needs can be met without an EHCP, under the Local Offer i.e. from the provision available without an EHCP. If an EHCP has been requested, the student must be given a right of appeal to the SEND Tribunal if that request is refused. The regulations for this can be found here

Colleges have a specific statutory duty to provide for their students with SEND with or without an EHCP; they must use their best endeavours to secure the special education provision that the student requires under the Children and Families Act 2014. They are also bound by the Equality Act 2010 to make reasonable adjustments to prevent students with disabilities being placed at a substantial disadvantage. So, this is the legal underpinning to ensure that more or different provision to the standard mainstream offer is made for students with SEND. 

The SEND Code of Practice says that any additional provision for students with SEND in college should be regularly reviewed. As colleges must have regard to the SEND Code of Practice, if they are not holding regular reviews, they will have to be able to explain why.

I do hope this helps clear this up. I am not sure why things appear to be different between schools and colleges in your area as this will spend on local factors. There is a bit of a postcode lottery in SEND provision and EHCPs I'm afraid.

If you have any questions or comments, do let me know. 

SNJ note: We have a post about transferring from LDA to EHCP here

Should we ask for new assessments for my son’s EHCP transfer?

Parent asks

My son has a statement, we are going to transfer to an EHCP. The reports are old: OT, 5 years; Physio 10 years; Ed Psych 6 years. As my son is 17 and he will be transferring to adult services this year, I wanted a clear picture of all of his needs so I asked for new assessments at the beginning of the process so that all of the information would be on the table when all of the professionals met. I was told by SENDAR that this is not what the CoP says, it is not our LA's policy. I was told that the professionals at the Transfer Meeting would decide if reports were needed and that the paperwork from that meeting would trigger the reports.

I could understand if something new came to light during the meeting that that would happen, but these are clearly identified needs including some that led to the LA allowing him to be in an out of county school.
 Is this correct? What DOES the CoP say?

Marguerite replies
Marguerite Haye replies:

The transfer guidance states:
5.6        To transfer a child or young person from a statement of SEN to an EHC plan, a local authority must undertake a Transfer Review. This will require them to undertake an EHC needs assessment under section 36 of the 2014 Act.
5.1        The EHC assessment process will allow local authorities and families to work together to consider existing assessment information within the statement or LDA and what, if any, further assessment information is required.

Further assessments can be from all the professionals working with your son or a service not working with him too. The professionals working with him should be providing written advice unless you, the local authority and the professional agree that the report is current and is appropriate. In seeking advice and information, the local authority should consider with professionals what advice they can contribute to ensure the assessment covers all the relevant education, health and care needs of the child or young person. Please remember that a transition from a statement to a plan always involves an EHC needs assessment. A statement cannot simply be tipped into a plan. The EHC needs assessment is the essential feature of transition and it cannot be avoided or delegated by a local authority.

Article 20 provide that the C & F Act 2014 and the SEN Regs apply to an EHC needs assessment conducted as part of the transition in the same way as they do to an EHC needs assessment under the C & F Act 2014. This means that the law which applies to EHC needs assessments applies equally to transition, for example, the entitlement to ask for additional reports under SEN Reg 6 (1) (h) will apply – as will all of the other rights parents and young people have during an EHC needs assessment. There is an additional right which applies to transition which is the right to attend a meeting with a SEN officer and this is addition to, not instead of, the rights parents and young people have to a meeting in respect of a draft EHC plan.

Have a think about your son’s area of need( Section B) in terms of:

  • Sensory & Physical or Health
  • Cognition & Learning
  • Communication & Interaction
  • Social, emotional and mental health difficulties.

As he is 17, you would be expect to see the Preparing for Adulthood Outcomes (Section E), in the four areas; Employment, Education, Community Inclusion and Health. Chapter 9 of the CoP states reports older than a year old should not be used and his statement should have been reviewed annually. However, we know that many are not updated, often because, after a long, hard battle, parents do not want to risk having provision removed.

 

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

Parent asks:

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

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

 

Helen Gifford replies

Helen Gifford answers:

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

There are two helpful examples of EHC Plans for a young person over school age with complex needs who is going to college on the SEND Pathfinder website. This is a website that collects the learning and resources from the trials before EHC Plans became law and contains example EHC Plans that the Department for Education (DfE) felt were appropriate. You can find this at http://www.sendpathfinder.co.uk/coordinated-assessment-process. You will find a menu of 4 options in red type. Click on the plus by the second one (called 0-25 Co-ordinated Assessment Process and Education, Health and Care (EHC) Plan, version 5 October 2014), and the good examples are appendix 1 Portsmouth example EHC Plan (you will need to scroll down over one for a nursery age child first) and appendix 4 Hertfordshire example EHC Plan. To make things easier, I have attached these to this email anyway.

Both of these example EHC Plans have the preparing for adulthood, and developing independence skills running through them for a young person over statutory school age. Your daughter's EHC Plan may look different (and you can see that both these plans looks very different from each other) as every authority is required to develop their own local style of plan in consultation with parents, but they will have the same lettered sections as these are the legal requirements.

I particularly recommend the description of the young person's special education needs (section B) in the Portsmouth example. Developing independence features throughout all the sections here, and it is clear and detailed about the young person's needs.

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

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

Don't forget your local Information, Advice and Support (IAS) Service, which used to be known as Parent Partnership. They should be able to help you check that an EHC Plan is sufficiently detailed. IPSEA has a helpful checklist for checking an EHC Plan on the website at: https://www.ipsea.org.uk/file-manager/SENlaw/ipsea-ehc-plan-checklist-2015-april.pdf

What information should we be given at the start of an EHCP transfer?

What information is required at the start of the transfer (old review meeting) all I have be given is a form with just a few details from my son's teachers. Also who needs to be at this meeting?

 

Helen Gifford replies

Helen answers:

Exactly how the transfer process runs does vary between local authorities, but it seems to be pretty much standard practice for schools to be asked to complete a form that covers both the usual statement review requirements (child's progress, is the provision still correct, have the child's SEN changed etc.) and starts to think about what needs to be in the EHC Plan (more information about your and your child's views, deciding upon outcomes to be worked towards etc.).

Some schools are filling out this form as far as they can before the review meeting and sharing it with parents and then finishing off filling it in at the review meeting. Others are just gathering teachers' views on progress, provision etc. which will be supporting information to the form when it is completed, sending those to parents in advance of the review meeting, and then filling out the form from the meeting. It sounds to me as though you might be in the latter case here. If so, I think it is worth asking the school or the local authority for the form that will be completed by the school following the review meeting so you know what will be covered, and can be prepared to put your views over in the meeting.

At a review meeting, there must be a representative from the local authority, relevant school staff such as the SENCo, class teacher, TA etc., and external professionals who are working with your child e.g. speech and language therapist, occupational therapist, advisory teachers such as literacy or ASD specialists, educational psychologist. All the external professionals may not be able to attend the meeting, but anyone who is currently working with your child should provide a report that you should have at least two weeks before the meeting so that their advice can be discussed at the meeting, even if they are not there.

It is worth remembering that a transfer to an EHC Plan involves an EHC assessment (very like the statutory assessment that was done for the first statement), and so all relevant professionals should be giving written advice, and if they have not done so, they should be asked for it by the local authority unless you, the local authority and the professional in question agree that an already existing report is suitably up to date.

When will the EHCP transfer start? Will it be better than a statement to fund ABA?

Parent question

My son currently has a statement of needs issued in 2015 when he was in nursery. We applied in 2014 just before the EHCP was introduced. It entitles him to 35 hours of one to one support in school. at the moment he attends a mainstream school only for half days and does ABA therapy at home after that.

The school has advised that he will need a full review of the statement this year in November. that would require educational Psychologist input which I will have to pay for as school doesn’t have budget. I will also have to include his ABA consultants reports.

I want to know why he can't have an EHCP this year rather than next year which is what LA is saying. Also I want to understand if EHCP is going to be any better than statement? 

I am trying to do two things this year: one is to get him to repeat reception and secondly get some funding for ABA which we fund privately. Will going on EHCP help in any way in doing so?

Marguerite replies

Marguerite Answers

There is a timetable for the transition from statements to EHC plans. For details of the timetable, go to the IPSEA website for further information. When that transfer will happen in an individual case depends on your Local Authority’s Transition Plan. It will explain when they intend to carry out the transition for different groups of children and young people in their area. Departmental Advice from the Department for Education requires them to prioritise certain groups first.

You can ask the local authority to carry out the transition before their intended time but if they do not agree you cannot appeal against that decision. This is because the right to request an EHC needs assessment has been suspended for children with statements for the transition period.  However, you can still ask for a re-assessment under the Education Act 1996 (EA 1996) during the transition period; you can appeal if refused. 

Your review will be of his statement, and the rules are different to an EHCP. It is the duty of the local authority to review the statement. The EA 1996 is specific about the review’s main purpose: to look at how your son is progressing, and judge whether the statement is still appropriate, or needs to be amended or ceased.  The obligation to deliver the special educational provision is an absolute obligation on a local authority. If you feel the provision is not specific enough, that is a reason to request amendments to remedy that at the annual review. 

The annual review is all the actions taken by the local authority to formally review the continued applicability of the statement, including its decision after receiving the report of the meeting to maintain the statement as it is, to change it or cease it. Only when you are informed of that decision is the process complete, and this must take place within 12 months of the issue of the final statement or the completion of the previous annual review.  You can ask for the annual review to be held early if there are problems but the local authority does not have to agree, and refusal does not give you rights to appeal.

Before the meeting there are three steps with their own timeframes:

  1. Your local authority informs the head teacher which children/young people must be reviewed in the coming term.
  2. The head teacher or delegate request advice from all concerned
  3. The head teacher invites all concerned to the annual review meeting, circulating the advice obtained in step 2.

You mentioned that you need to obtain reports from the ABA tutor. From the steps above it’s clear it’s the head teacher or their delegate who must request/obtain written advice.

 It may be a good idea to take someone with you to the meeting to take notes.  The head teacher must send a report to the local authority no later than ten days of by the end of the term in which notice is given if earlier.  Under the EA 1996, it can be difficult to ensure the local authority issues their decision and relies on the process.  If the local authority fails to confirm their decision in writing, you can write to them requesting that the review is completed. IPSEA has a model letter on their website.

You do have a right to appeal if you the local authority decides not to amend the statement of ceases to maintain it.  If you decide to appeal, I would suggest you contact IPSEA Tribunal helpline for further information.

Whose responsibility is it to source a new school?

When a child is having their statement transferred to an EHCP, whose responsibility is it to source the next educational setting if the young person is moving on? Is it the LA's, parents' or school's?

Marguerit replies

Marguerite says:

Law:

The Children's and Families Act: Section 38: the right to request a particular school or other institution is  named in an EHC Plan. Section 39 the duty on the LA to name the school/institution requested by
the parent or young person.

Regulations:

The Special Educational Needs and Disability Regulations 2014 (“the SEN Regs”)

SEN Reg 13 (b)- the LA duty to advise about where parents and young people can find information about the schools and colleges that are available for the child or young person to attend.

Guidance:

The SEN and Disability Code of Practice 2015:

Chapter 9: Paragraphs 9.77 to 9.87 deal with the draft plan and requesting a school/institution

An EHC Plan must name the type of school or other institution and in the majority of cases the
EHC Plan will name the particular school or other institution which the child or young person will attend
as well. The section of an EHC Plan which contains this information is Section I.

If a school or institution is named in Section I of an EHC Plan then the governing body, proprietor or principal of most types of school or other institution must admit the child or young person for whom the plan is maintained (section 43(2)).

The LA must allow the parent or young person to make a free choice when considering what type and name of school or institution to request.

The LA has a duty when issuing a draft plan to advise parents and young people about where they can find information about the schools and colleges that are available for the child or young person to attend (SEN Reg 13).

Often the LA may have a school or institution in mind before they draft an EHC plan but the starting point is the school or FE institution which the parent or the young person wants.

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

Section 38 (3):

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

  1. a maintained school
  2. a maintained nursery school;
  3. an Academy;
  4. an institution within the further education sector in England;
  5. a non-maintained special school;
  6. an institution approved by the Secretary of State under section 41

You may also find further information here:

https://www.ipsea.org.uk/what-you-need-to-know/ehc-plans/choice-of-school-or-college

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

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

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

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

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

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

Marguerite replies

Marguerite says:

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

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

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

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

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

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

You’ll find a model letter from IPSEA here:

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

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

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