What can I do if an EHCP has been in the “draft” stage for over 1 year?

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What can I do if an EHCP has been in the “draft” stage for over 1 year?

Parent Asks:

The Local Authority keep saying that they have consulted with over 50 provisions and that they have all come back and said they could not meet need. The pupil currently attends a PRU, and the Local Authority will not assign the money to the PRU for the pupil as the PRU cannot be named on the EHCP, and the PRU is funded through the same High Needs Budget as EHCPs. Therefore, the pupil is not receiving anything outlined on their EHCP. The LA have advised that the parents cannot do anything since the plan is not at the "final stage" and, therefore, cannot take the LA to the tribunal. Currently, approximately seven pupils within the PRU are in the same position.

IPSEA Answers:

There are specific deadlines set out in law by which an EHC plan must be finalised. The relevant deadline depends on whether this is the first EHC plan or has been amended following an annual review (“AR”).

If this is the first EHC plan, then the plan must be finalised within 20 weeks of the initial request for the EHC needs assessment. If a school placement has not been found or agreed upon, then the LA should finalise the plan naming only a type of school to be attended and then continue to look for a specific placement. The plan should not remain in a draft form long-term because the special educational provision set out in the plan will still need to be provided regardless of whether a placement is named.

If the plan has been amended following an AR, then the plan should have been finalised within 12 weeks of the AR meeting. The deadline for the LA to decide what action to take following the review meeting (i.e. whether to amend the plan, maintain it in its current form or cease to maintain the plan) is four weeks from the meeting date. If the LA chooses to amend the plan, then the proposed amendments must be provided at this time as well, giving you at least 15 days to respond and name your choice of placement. The LA then considers your views, consults with the placement and makes a decision, finalising the plan within eight weeks of the proposed amendments. Again, if at this point the LA has not found a suitable placement, then a type of placement should be named so that the plan can be finalised and the provision within in secured. You can find more information about the AR process here: https://www.ipsea.org.uk/the-annual-review-process.

As the plan is currently still in draft form, you should make a complaint to the LA about the missed deadline, reminding them of the process and requesting that the plan is finalised, naming a type of placement if a specific one has not been identified. The LA is frustrating your right of appeal in addition to your child not receiving the special educational provision that is required.

With regards to naming a placement in section I of the plan, as a parent, you have a right to request specific types of schools are named in your child’s EHCP. These are set out in section 38(3) of the Children and Families Act 2014 (“CAFA”) as follows

(a) a maintained school;

(b) a maintained nursery school;

(c) an Academy;

(d) an institution within the further education sector in England;

(e) a non-maintained special school;

(f) an institution approved by the Secretary of State under section 41 (independent special schools and special post-16 institutions: approval).

If you request one of these types of placements is named in the EHCP, then the LA can only refuse if one of the following reasons applies as set out in s39(4) CAFA:

(a) 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

(b) the attendance of the child or young person at the requested school or other institution would be incompatible with—

(i) the provision of efficient education for others, or

(ii) the efficient use of resources.

Before making a decision, the LA must consult with the placement. However, the LA makes the final decision to name a placement, and, if a placement is named in an EHCP, then it must admit the child (s43 CAFA). Your right to request the PRU will depend on the legal status of the setting.