The Great EHCP Swindle

Tania's note: A parent post today, but it's not a personal tale of an experience with the new Education, Health and Care Process. Instead, it's a lesson for everyone involved in the SEND system that you may well be grateful for. 

In fact, Bren Prendergast,  or @bjpren as you may know her if you're on Twitter, is an SpLD Tutor as well as the parent of a child with additional needs. Bren won cases against her LA after they threatened her with court action over her son's non-attendance due to issues with his school. Bren volunteers for a large charity that gives free legally-based advice. She also assesses students for Access Arrangements for their exams. On her Twitter bio, Bren describes herself as "Often outspoken, definitely opinionated", and her post for us today is one you should bookmark or print. It's about the EHCP process or, as Bren describes it, The Great EHCP Swindle.

EHCP Swindle

The Great EHCP Swindle by Bren Prendergast

Bren Prendergast

I was about 11 when the riotous sounds of Punk assaulted our eardrums and I loved it. I wasn’t a big Sex Pistols fan, but Johnny Rotten (John Lydon) fascinated me. It wasn’t so much ‘Anarchy in the UK’ but more, ‘why do we have such stupid social conventions’. By the time he had released ‘Metal Box’ with his band, Public Image Ltd, I was studying for an ‘O’ level in commerce. Part of that ‘O’ level was a section on the shiny, new Sale of Goods Act (1979). I discovered Law and I loved that too. I was an odd child.

What I didn’t realise then, was how much influence that would have on me, as I learned to swim through the shark-infested waters that is the world of SEND. For a great many families, that really is Anarchy in England.

The more shark bites my family suffered, the more I looked to Law. If the Sale of Goods Act told of consumer rights, then the Education Act would tell of, well, educational rights! Law is not there to be flexible, it is there as a clear set of rules by which we all must operate. They may influence some social conventions, but not all social conventions are stupid!

The SEND reforms are not running smoothly, although EHCPs are little more than a statement with a bit of Health and Social Care. Much of the underpinning law (and subsequently case law) remains the same, so why are local authorities (LAs) apparently so confused? I do realise that there are many new, inexperienced staff employed to write EHCPs and a distinct lack of professionals to provide input. Only individual LAs can say why they did not pro-actively seek to train/secure the necessary staff. They knew it was coming after all and they knew all about how SEN Statements should be written, didn’t they?

The LA has responsibility for all children and young people in its area with SEND (Section 25, Children and Families Act (CFA)). It is the LAs duty to secure an Educational Health and Care Plan (EHCP) Needs Assessment (Section 36) and secure and maintain an EHCP (Section 37). These duties cannot be delegated. These are LA duties.

A transition from statement to EHCP must follow the same Needs Assessment that is required when an EHCP is first requested. SEN Regulation 6 (1) details all the advices that the LA must obtain. Being set in statute, these are non-negotiable (unless everyone considers that existing reports are sufficient; old reports are unlikely to be sufficient). However, looking in Section K (advices) of the majority of EHCPs that I have seen to date, many (sometimes all) advices have been absent. LAs cannot ignore SEN Reg 6, it is law.

Additionally, I am hearing that many LAs are telling schools and colleges that they must write Section B (description of needs) themselves. The SEN Code of Practice (9.53) states that the ‘local authority must prepare a plan’. It does not state ‘the local authority can delegate the writing of a plan to whoever it sees fit’. There are two issues that jump out at me here: this is tying up the resources of schools and colleges and; a badly written Section B will result in a badly written Section F (provision). Parents and schools/colleges alike should also question whether they have the necessary level of expertise to write Section B (and bear in mind that it is not their duty to do so).

The basics are straightforward, the EHCP should set out all the needs and the appropriate provision (Section F) to meet those needs (which must be specified and quantified, and generally including TA ‘hours’). These sections should be written without consideration of cost.

If I go back a step, and I’m sorry if I’m labouring a point here, there’s that pesky SEN Reg 6 (1). If the LA has not secured these advices, how is a school/college going to know what should be written in Section B? An unwitting placement may use its own resources and pay for reports themselves – and some are actually being told they must do this! Others will be fumbling about in the dark. The whole point of a Needs Assessment is to establish the needs and the provision to meet them.

Image of options

Bad beginnings = Bad endings

The school/college that has not had good quality, impartial training, may end up writing really bad Section Bs. The LA will write the provision based on this incomplete information. A school/college may then find that the provision is wholly inadequate and ask the LA for Element 3 (top-up) funding which will be refused as it is not indicated on the EHCP….

An unwitting school/college may end up stumping up for the support that should be funded through the EHCP. CFA Section 66 is the Governors ‘best endeavours’ duties. The LA must secure the provision in section F, so, even if some of the provision is ‘that generally found in mainstream’, provision has to be set out in the EHCP. S66 is a pro-active duty to use beast endeavours to secure support for students, but the school/college should not have to provide funding for what ought to be in section F, but isn’t. S66 should therefore be the funding put aside for those students who are effectively ‘SEN Support’.

In regards to students on LDAs, the Children and Families Act 2014 (Transition and Savings Provisions) (Amendment) (No 2) Order 2014 states at Article 28 (3) that section 36 of the C&F Act does not have effect in relation to a young person with an LDA before 1st Sept 2016. Section 36 is quoted above: the duty to secure an EHCP assessment. At (10) it states:

In making a determination or forming an opinion for the purposes of this section in relation to a young person aged over 18, a local authority must consider whether he or she requires additional time, in comparison to the majority of others of the same age who do not have special educational needs, to complete his or her education or training.

S36 comes into force on 1st September 2016 – to secure an assessment. As an LDA only has weight under s66 (best endeavours), provision in an EHCP must come via the LA – and costed/paid for accordingly. Will LAs be pro-actively seeking out this cohort, will colleges already under incorrect pressure from LAs seek to identify them, or is another storm brewing?

(It is recommended that all student who have LDAs and have not completed their education (excluding university), should request an EHCP as soon as possible.)

‘Ever get the feeling you’ve been cheated?’ (Johnny Rotten, 1978)

Now where did I leave my PiL Greatest Hits CD?

You can find Bren's own blog here.

Bren Prendergast
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  1. L Thomas

    Fair, accurate, damming assessment of EHCP progress (lack of) and shenanigans. However, it’s not just the LA’s and schools who are slow to pick up the ball and run with it. Anyone seen OFSTED Yet? 18 months (half way) in ? A convenient consultation about what to inspect (the law is clear) while the rest of the SEND population (all sides) don’t get time to prepare ‘how to’ or enjoy a slow start honeymoon period.

    It’s not just OFSTED/CQC, or the LA’s and practitioners that need to gear up, most parents don’t know what they are missing!!!!! Through no fault of their own they have 20 page plans that are empty; without a single educational provision, which of course begs the question, why was a plan in place anyway?

    My own transfer meeting is scheduled for 8 days time, 4th attempt (I’ve cancelled three so far due to lack of preparedness on part of the LA) but still I’m chasing down missing advices due last week. What happened to the EHCP dream?

    When exactly will the law makers and legal champions gear up to this fiasco? Ever? Or is it their intention to turn a blind eye to the merry muddle as meaningful EHC plans fade into extinction?

  2. Tanya Kunna

    Hello everyone

    This is a bit of a strange request but here goes…. I’m at university and doing an assignment on the SEND code of practice in regards to health and social care and I would be ever so greatful if some of you could take the time to let me know how easy (or most likely how difficult) you find getting all the different professionals and LA’s involved in the care of your children/ young people together to discuss plans and getting those plans reviewed, also I know the SEND code of practice amongst many other documents places great importance on the inclusion of children with SEND and their parents/ carers on decisions that involve their lives and their education but again in practise is this something you find happens or is it really just lip service.

    1. @bjpren

      Hi Tanya.
      I don’t have any hard facts for you, but the general ‘murmurings’ on the ground is that H&SC are not/cannot meet the 6 week turnaround time required for the EHCP process in many cases. They too are stretched for resources.
      Some LAs issue final plans without the advices to meet their own deadlines, or parents are left in limbo without plans while the LA waits. It is advisable that parents take legal advice (there are free places, such as IPSEA and SOS_SEN to name a couple) to see what they can do. The law now states that a parent/young person must consider mediation. If the H&SC reports are absent, the parent could call these services to mediation.

  3. cathgrummitt

    The good thing about an EHCP is that it can be in place until a young person is 25 years old. However if you are not getting the support to access education as a child it will be an uphill struggle to get an education as a young person. My son has had no education since he was 13 years old. He is diagnosed Asperger syndrome and anxiety. He does not have a learning disability and so has not ‘qualified’ for services. The LA can cease the school placement, put nothing in place, transfer to an EHCP without assessment and lop out everything in the statement. My son is now 17 years old. For 4 years my son has had no education because he has no learning disability. This week having applied to the SEND tribunal I can only complete the form if my son does not have capacity. There is not a tick box for parent with consent from young person. So my son who can’t access education because of his disabilities (‘not learning’) now cannot access the tribunal system unless I prove he does not have capacity?

    1. @bjpren

      Your son can write a simple letter if he’d like you to act on his behalf. Nothing fancy needed, just permission, signature & date. Mental capacity is an event-by-event thing, rather than an across the board. There’s no reason why he shouldn’t give permission for you to act re: SENDIST – unless he doesn’t want you to. It is his right to refuse at 16, even though you have responsibility until 18.

      1. cathgrummitt

        He has signed many forms so that is not the problem. It is the fact on the form it should have a box to tick for parent with young persons consent attached. My son is never going to fill in the form and represent himself at tribunal. Even my husband says he cannot deal with the paper work. Even if he had got legal aid at the start he couldn’t have managed. I just think it is a farce that because he cannot fill in the form his capacity has to be questioned when the LA have specifically not assessed him or supported him for 4 years because he doesn’t have a learning disability.

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