Why the SEND Review MUST extend EHCPs to disabled students in higher education

disabled students EHCPs

We’ve been calling for Education, Health and Care Plans (EHCPs) to cover all young disabled people in education up to the age of 25 since before the 2014 reforms. So while the SEND Review is still deliberating, we want again to make the--very strong-- case for it to become a reality for those who make it to university

At present, young people remain entitled to an EHCP if they are 16-25 and in education or training. This includes apprenticeships and supported internships as well as further education – even if your LA tells you it doesn’t. 

But if a young person with additional needs has been able to make it to university, they no longer have any statutory support at all.

Leaving home for the first time can be exciting but also one of the most stressful times in life. If a young person with SEND is entering a new educational situation where they are not known and where often, their additional needs are not given any consideration by lecturers, it can be a recipe for anxiety, depression and early drop-out. Add COVID into the mix and the situation is even worse. 

Why was higher education left out of the reforms?

I'm sure someone knows, but a clear cut reason has never been obvious to me or to anyone else I've asked. We were told, at the time, that EHCPs couldn’t be imposed on universities as they were private bodies. But universities are just as subject to The Equalities Act and other legislation as any other organisation. And if the Government can make an EHCP work for an apprenticeship with a commercial company, the claim that they can't do it for universities rings hollow.

The other worry may have been that, as an EHCP funds often highly expensive educational placements, it might be taken that higher education fees would have to be paid as part of it, and who would be on the hook for them? It would certainly not be a cost that a local authority would want to take on. And doesn’t the Disabled Student’s Allowance provide for additional needs anyway? (more on this later).

It would be quite simple to enter a clause that states fees cannot be included in a higher education Education, Health and Care Plan in the same way that other laws come with all sorts of caveats. Although, with the recent changes to disabled students’ access to Universal Credit (more on this later too), then including the payment of fees would allow the student loan to be used entirely for maintenance. That would be one way for the Government to show it really does want disabled students to reach their potential. Another option would be to provide an additional non-means-tested maintenance grant (not loan) to recognise that disabled students usually cannot supplement their loan through additional paid work.

Let’s not forget the Government’s stated aim to cut the disability employment gap and the great odds a disabled young person will have had to surmount to get to university in the first place. 

The Disabled Student’s Allowance

So what about the Disabled Students Allowance? Doesn’t this level the playing field for disabled students? Why do they need an EHCP as well?

The DSA (read our post about this here) is very useful and can provide all sorts of support from mentors, to learning support tutors or assistants, to laptops, ergonomic equipment, lecture recording devices and so on. This is arranged through an assessment before university. A student marks on their loan application that they have a disability and they are then contacted for the assessment. It’s much less stressful than applying for an EHCP and sending them the existing plan can help ensure the right support is funded. 

So the funding may be in place, but once the student gets to university, they are often expected to arrange their learning support themselves and the university disability support team can sometimes not be as helpful as they might be. They won’t usually chase the student – it’s up to them to attend lectures on time, study skills sessions, and be upfront about what they need. 

Parents will not be involved unless the student explicitly tells them, in writing, that it’s okay for this to happen – an email is sufficient, a legal power of attorney is better. But a parent can only do a limited amount from potentially far away and the universities close to home might not offer the course desired.

Some young people need reminders about lectures or a knock to ensure they can get up and get organised in time. A student ‘buddy’ can be provided, but they have their own studies and often an autistic student, for example, doesn’t want another student to do this, even if they clearly need the help. A student with autism may well not recognise mental health problems or have the confidence to seek help

This is how a student falls through the cracks. If the support offered isn’t suitable or isn’t working for them, they have to speak up and get it changed, but while some might manage this, others would just cease to engage rather than face a difficult situation. So the support goes unused and no one in authority cares because they don’t have to.

How could an EHCP help?

The point about the EHCP is not so much about money, it is that it’s a STATUTORY document. This means while the funding would come from central government as with the DSA, a university would have a legal imperative to ensure that the support is actually provided. It gives them a responsibility to make sure that the student is definitely receiving the support that has been funded.

Whether a private institution such as a university can be compelled to do this is, of course, another matter— it’s usually a public sector duty, so the onus may still have to lie with the LA. But there must be some way this can be done— that’s one for the lawyers!

If the young person is having trouble navigating university life because of their disability, there must be some way the university could be legally required to provide the help in the way that the student can access it. That’s a lot more difficult – and useful – than saying ‘this is what we provide and what you’ve got the funding for, take it or leave it.”

Now, of course, it needs to be said that some university disability teams are brilliant, dedicated, and responsive. Some students who got little support at school have found accessing the DSA to be a revelation. But many universities are not as good and why should a student have to choose a university based on its disability support rather than on the courses and experiences it offers? And if a university offers great support, they have nothing to fear from an EHCP.

With a legal requirement to provide what’s in an EHCP, the university would have to look at the young person holistically, not just academically. Support agencies would have to be coordinated by the disability team and work together. Parents would be able to have more input (with the young person’s consent). The university would have to stay in regular contact with the young person, rather than wait for them to ask for help. Life skills input could be included in a plan to ensure living away from the family home didn’t mean they couldn’t manage to eat properly.

A social care assessment would come as part of the transition to university, meaning a young person who may not ordinarily be able to access one could have a personal budget. This could be used to fund someone to help them physically, as is already the case for some with physical disabilities, but it would be coordinated within a plan. It could also be used to support a young person with transport, socially, to keep their room in order, food shopping, get laundry done or anything that would provide back up to help them to succeed at university.

The university disability department would be in charge of coordinating what was needed, in co-production with the home local authority and the required health services. It’s an Education HEALTH and CARE Plan, after all.

Of course, there is other legislation such as The Care Act that will come into play. But this should only strengthen the rights of the disabled young person to ensure they get through their university years. And that’s what everyone wants, isn’t it?

A word about financial support

Many, if not most, disabled students find it impossible to manage a part-time job as well as their studies. Apart from anything else, the common student jobs of hospitality or shop work would more than likely be inaccessible. 

And what about the summer holiday? How are they supposed to support themselves in those long weeks between summer and autumn semesters?

Previously, if a disabled student had Personal Independence Payment (PIP) or Disability Living Allowance (DLA) they could apply for Universal Credit and be invited for a limited capacity for work (LCW) assessment. Bizarrely, the DWP clearly doesn’t trust the results of a difficult-to-pass PIP assessment it has itself already undertaken. 

However, last year, days after a judicial review finding that it unlawfully refused this assessment to disabled students, the Government disgracefully issued new regulations to simply change the law, meaning future disabled students making a claim for UC would not be invited to a Work Capability Assessment (WCA) and so would not qualify for the benefit.  This only left a long-winded work-around to an LCW by applying for credits-only Employment and Support Allowance, but in December, the Department for Work and Pensions slammed that door shut too, deciding that a student must have established a limited capability for work before they started receiving full-time higher education.

So this means that a prospective disabled student with PIP or DLA, can only apply for universal credit at 18 if they apply for, are assessed, and qualify for, limited capability for work (LCW) in the narrow gap of the summer months between school and university. Given that this is a process that can take months, it’s very unlikely.  

While Universal Credit deducts the student maintenance loan from the amount it awards, disabled students are still left with something because they would get the disability add-on and, crucially, it is awarded in full during the summer holidays. This change also cuts off the route to housing benefit, which would be paid year-round if a student with UC lived in non-university provided accommodation. Barness Janke has also raised this in the Lords which received the usual kind of government reply, a lot of words but avoiding the fact that the door has been closed to existing disabled students of those who become disabled while on a course.

“Following previous representations by Disability Rights UK, both the Equality and Human Rights Commission and the Work and Pensions Select Committee  have recommended that receipt of PIP or DLA should be accepted as evidence of a limited capability for work, enabling Disabled students to receive Universal Credit.

The reason UC can be vital for Disabled students is because it covers living costs over the long summer holidays when student grants/loans don’t apply. Disabled students find it harder to supplement their grants/loans with employment. Housing costs can also be higher, where accessible or adapted accommodation is needed, and this is not covered by student finance”

Disability Rights UK

The only other way might be if they were having a year’s break between school and university or a break between courses. Of course, students can also seek out scholarships, bursaries or charity grants, but this takes time, energy and prior outstanding achievement – and even then they may be one-offs or of limited financial value. Disability Rights UK advises it will still be useful for disabled students to claim contributory New-Style ESA to get national insurance credits for limited capability for work.

Can't disabled students just learn online?

Covid has meant that this has been the case for everyone, whether they have additional learning needs or not. And of course, some disabled young people may prefer to be at home and have an online learning experience, complete with the support of their parents and the comforts of home.

But Covid has shown that for many, the in-person experience is vital and being alone in their room for study means that no study gets done. It can also be detrimental to mental health, as we have seen across the board. But an EHCP would be just as valuable, even if home learning was the preferred option.

For a quick view of some experiences that illustrate points I've been making, check out our Facebook post here

So what’s next?

The rule change flies in the face of any government claims about wanting to support disabled people to reach their potential. It effectively says we want you in unambitious work that you don’t need a degree for, unless you have rich parents who can support you financially.

The SEND Review is an excellent opportunity to include higher education in EHCPs and truly support disabled young people to achieve their potential. It would say, we have the highest of ambitions for you and we will put our money where our mouths are to prove it.

Additionally, including tuition funding or offering a disabled students’ maintenance grant would also go some way to righting the DWP’s egregious wrong on universal credit.

What's stopping it? Only the will, so we shall see what the consultation Green paper brings, won't we?

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Tania Tirraoro

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