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.