Parent Question:

The SEND Code of Practice states that the threshold for an EHC plan is that the child's special educational needs cannot be met from the resources normally available to mainstream settings.

According to SEN Minister, that's not the same as the £6,000 threshold for banded funding. I'm really struggling to understand this. Could you give a few practical examples of needs that cannot be met from normally available resources? And how would an EHC plan help the school to meet those needs, given that a plan doesn't confer any additional funding to the school?

IPSEA Answers:

The legal test for when an LA must issue an EHC plan can be found in the C & F Act 2014 s.37(1). It says:

“Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan -

(a)  the local authority must secure that an EHC plan is prepared for the child or young person … “

The test is whether it is “necessary” – there is no reference to levels of funding such as £6,000; hours of support; number of years a child is “behind” or any other test which parents tell us LA’s have as part of their SEN policies.

The £6,000 you refer to is a level of funding referred to in a SEN funding policy approach introduced by the Department for Education. It is not law and the legal test will always “top-trump” policy.

The LA has a legal duty to secure all the special educational provision specified in an EHC plan in section F (just like the provision specified in Part 3 of a statement of SEN). This duty can never be delegated to a school or college. It is for the school/college to be clear about what they have the resources to provide and to request additional funding from the LA if needs be.