Many of you will have seen Nadhim Zahawi MP – the current Children and Families Minister, talking on BBC Breakfast a couple of months ago about how the SEND reforms are a ‘huge success’ and claiming that he hasn't seen an EHC Plan that is not worth the paper it is written on. Many of you will have also been left scratching your heads as to why Mr Zahawi’s experience is so different to your own.
When pressed on the current difficulties faced by parents of children/young persons with special educational needs (SEN) - in terms of delays, lack of funding and limited special educational provision being provided, Mr Zahawi stated that the government will “continue to look at the statistics to understand why a handful of Local Authorities are having problems."
It didn't take long before vast numbers of parents, many of you included, took to social media to air your concerns – SNJ called for an audit of the data supplied and an array of parents began highlighting the difficulties each of you have faced in your respective Local Authority areas. These personal accounts covered the length and breadth of the UK and inundated SNJ.
Whilst the government have pledged to invest £6 billion in special educational needs and disabilities by 2018/19, the question remains as to the usefulness of such funding if the government’s basic understanding of the difficulties parents face is so wholly misunderstood.
Poor EHCPs can even lead to exclusion
One of the issues that Mr Nahawi did recognise was that the rate of children with SEN being excluded from mainstream school is disproportionately high. He sought to reassure parents by announcing a set of reviews which will look into why this is. My question therefore is why can't Mr Nahawi put 2 + 2 together to get 4?
Children with ‘poor’ EHC Plans, which do not specify the child's specific special educational needs and do not quantify the proper amount of provision that those needs require, often result in the child’s genuine difficulties being wrongly categorised as ‘bad behaviour’ for which they are excluded. This appears to be because mainstream schools do not generally have the resources or the funding to provide above the level of provision specified in the child’s EHC Plan and the level of disruption is easier remedied by way of exclusion (whether that exclusion is lawful or not is a whole other matter).
Every child with SEN is entitled to a properly specified and quantified EHC Plan so that it is visible at first glance of the EHC Plan by any professional, what that child’s specific needs are and how best to support them. The special educational provision detailed should be what the child’s SEN require - not simply what their Local Authority is willing to provide. There is no ‘if we afford it’ clause in any of the legislation.
Mr Nahawi proudly states "I have got EHC Plans on my desk which I would certainly be proud of if that was my child," but is the minister too far removed to know what a ‘good’ EHC Plan looks like?
What doesn't a good EHCP look like?
Far too many parents are led to believe they have a ‘good’ EHC Plan because they are comparing theirs against another child’s, who is often in the same Local Authority - constrained by that particular Local Authority's policy or funding guidelines. For example, you may think that your child has a ‘good’ EHC Plan if Section F states that your child requires 1:1 support and no other child has 1:1 support stated in their EHC Plan. The real question is what does 1:1 support really mean? Effectively nothing.
Some real life but ‘poor’ examples of EHC Plans I have seen include:
- No reference to a diagnosis of Autism, despite the child having the diagnosis for many years;
- Completely blank sections of the EHC Plan;
- Special educational provision being included in Sections C, D, G, H1 or H2 rather than Section F
- Historical and outdated information being included, such as references to the child’s nursery setting which they have not attended for ten years plus;
- Wording such as ‘access to,’ ‘opportunities for’ and ‘to provide’;
- Funding at level 3 banding (what does this even mean?) and
- Therapy input only being provided by ‘school staff.’
Mr Nahawi claims that "no one has said to me that the EHC plans aren't worth the paper they're written on"- I see many every day in my line of work and would be happy to tell him so myself.
My top ten tips for a 'good' EHC Plan
- Is the EHC Plan dated and signed? It is from the date of the final, signed and dated EHC Plan that your Local Authority becomes responsible for the provision in it.
- Diagnoses all there? Are all of your child/young person’s diagnoses in Section B?
- Wording should be specific – if you have expert reports saying ‘X has a diagnosis of dyslexia’ make sure this is inserted in Section B.
- Does your EHC Plan include contradictory information? If so the incorrect information should be removed.
- Is the information current? Anything older than two years old should be removed and updated.
- Do you understand it? If you don’t understand your child’s EHC plan it is not doing its job properly. Does it need to be written in a simpler format?
- Is it all still there? If your child/young person has transferred from a SSEN to an EHC Plan – has any of the therapies they were receiving ‘disappeared’?
- Is therapy in the right place? If your child/young person is receiving SALT/OT etc. are these included in Section F? If they are only included in the Health sections, your Local Authority cannot be forced to provide them;
- Provision should be quantified - ‘access to,’ ‘opportunities for’ and ‘to provide’; essentially allows the LA to provide as much or as little as they want. In terms of provision/therapies think, what, by who, how often, for how long?
- If it isn't provided: If provision is quantified in Section F and the LA stop providing it, they can be forced to restart via a simple pre-action protocol letter on Solicitor’s headed paper.
Without specification and quantification, EHC Plans are open to interpretation by the reader as to the amount of provision to be provided and when considering budget cuts, what is provided is often towards the lower end. The amount of provision provided can vary hugely from one Local Authority to another. This also makes trying to force Local Authorities to carry out provision in the EHC Plan very difficult unless the provision is accordingly specified and quantified.
I specialise in advising parents and securing the best possible outcomes and provision for children, as defined by the child’s particular special educational needs and not on the basis of what the Local Authority are willing to provide. If you have any doubt about the legality of your child’s EHC Plan, or whether it is legally ‘good’ or not, many firms like my own offer an EHCP Health Check service for a one-off fee of just a few hundred pounds. This may be particularly helpful for parents who wish to run an appeal themselves but just want some initial advice on what the problems with the EHC Plan are, so that they know where to focus their arguments.
The good news is EHC Plans are relatively easily amended to something much more specific, quantified and useful going forward – you just need to know where to look.
Examine your child’s EHC Plan now, is it ‘good?’ Let me know…
Don’t miss a thing!
- EOTAS: Education Otherwise Than At School. What is it, and can I get it? - November 2, 2021
- Could remote hearings be the new normal at the SEND Tribunal? - April 10, 2020
- Coronavirus and SEND law: Part 4 What does my child’s EHCP still provide? - March 27, 2020