Can I apply for an EHCP if I home educate my daughter?

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Can I apply for an EHCP if I home educate my daughter?

Parent asks:

I am the parent of a 10 year old girl with high functioning autism. My daughter's current school have been unable to offer extra support, and as a result of sensory issues and the anxieties caused by this, things have grown progressively more unbearable for her and now she feels unable to attend at all.

I am in regular contact with the SENCO at school, and we are also under the care of a Clinical Psychologist.Unfortunately, though, we find ourselves in a state of limbo, as things progress very slowly with school. My daughter has been at home (other than a few hours at school here and there) since September 2016, and as yet we do not have an EHCP in place.

I am unsure of the right course of action with regard to my daughter's future education. I have considered officially home educating, and would be happy to do this temporarily, but do not see this being the right course of action across her secondary education. I think she would benefit from attending school but only if her basic needs are understood and facilitated. She is a very bright, intelligent girl, and sadly her schools, thus far, have not helped her to reach her full potential.I would rather de- register my daughter and officially home educate -BUT -what happens when she is ready to attend high school?

Can I apply for an EHCP at that stage, alongside an application to attend a special school? I do not need an EHCP to home educate, but I think one will be needed to get my daughter into the right secondary school.I am afraid that by de-registering my daughter from her current school, I will lose my chances of getting an EHCP.

To confuse things further, I phoned a home education helpline and was advised not to get an EHCP because this could limit my control over the situation, e.g. if a particular high school is named in it, but my daughter finds she is very unhappy there, an EHCP makes it extremely difficult to remove her from the school.

ask ipsea

IPSEA Answers:

You raise a number of difficulties that unfortunately we come across quite commonly.  When a child or young person’s special needs are not properly met at their current school, the placement can break down.

Covering the issue of the EHC plan first, the law gives parents the right to apply directly to the local authority for an EHC assessment.  You can write to your local authority explaining your daughter’s particular special needs and challenges, that her current school has stated it cannot meet these needs (and she is currently unable to attend) and that in your opinion she has special educational needs for which special educational provision is necessary.  The local authority is legally required to reply to you within six weeks to let you know whether they agree to carry out an EHC needs assessment.  If they refuse you have the right to appeal that decision.

It appears that the advice from the home education helpline has been given on the basis that your preference is to home educate. From your email, it appears that while you would be happy to home educate temporarily if a more suitable provision is not available, this is not your long-term preference. The test for carrying out an EHC needs assessment is whether the child or young person has or may have special educational needs, and whether it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan. Given that your daughter’s current school is currently failing to meet her needs it seems likely that she requires additional provision.

If you decide to home educate there is not necessarily the same obligation upon the local authority to provide special educational provision.  However, it could be possible to make a case that ‘education other than at school’ (home schooling in your case) be made, enabling you to access special educational provision at home.  This is only possible where the local authority is satisfied that it would be ‘inappropriate for the [special educational] provision to be made in a school’.   To meet this test you would need to demonstrate that education in a school would be inappropriate for your daughter.  The way that that is established has been confirmed by the case of TM v London Borough of Hounslow[2009] EWCA Civ 859 which said that to answer this question all the circumstances of the case must be looked at including the child’s background and medical history; the particular educational needs of the child; the facilities that can be provided by a school; the facilities that could be provided other than in a school; the comparative cost of the possible alternatives to the child’s educational provisions; the child’s reaction to education provisions, either at a school or elsewhere; the parents’ wishes; and any other particular circumstances.

If you did choose to home educate without a plan with a view to later applying before secondary school you would need to be aware that the process from initial application to finalising the plan takes up to 20 weeks.  If the Local Authority were to refuse your request for an assessment or refuse to issue a plan that time could be extended if you had to exercise any rights of appeal.  It will be important to bear in mind these time frames when considering the options available to you.

With regard to the plan itself, a Local Authority is required to set out all the special educational provision needed to facilitate the child’s learning, which in your daughter’s case should include strategies to manage her anxiety and support her with any additional needs she has related to her autism.  A placement should be sought that will be able to meet these needs.  Your choice of school will be given preference by the local authority subject to some narrow conditions which the Authority could use to dislodge it (we have not covered these in our answer today).

So to summarise our advice regarding an EHC plan; you can apply to the Local authority yourself for an assessment.  The Local Authority should tell you within six weeks whether they agree to assess your daughter.  If they assess and issue a plan this should include detailed and specific provision to meet your daughter’s special needs.  You will have an opportunity to tell the authority your choice of school.  The Local Authority is legally required to ensure the special educational provision in the plan is delivered by the school.   If you wish to home educate and have an EHC plan you will need to demonstrate to the local authority it would be inappropriate for your daughter’s special educational provision to be made at school.

Turning to the issue of your daughter’s current education, we are sorry to hear that she has not been at school since September due to her anxiety.  Where a child is unable to attend school due to ill health (and anxiety can be considered ill health), the local authority has a legal obligation under Section 19 (1) of the Education Act 1996 to provide suitable alternative educational provision.  An alternative could include tutoring at home or a placement at a special unit.  We would advise you to write to your Local Authority requesting alternative education and quoting Section 19.  You may wish to provide medical evidence of your daughter’s anxiety which is preventing her from attending school.

You should also be aware that you do have a legal duty to secure your child’s regular attendance at school and a failure to do this could result in prosecution. You should ensure the school is recording her absences as authorised absences in order to mitigate this risk.

If you go to the IPSEA website you will find a number of resources that can help you, including a model letter that you can send to the local authority requesting an EHC assessment.  We wish you the very best of luck.