Ensuring EHCPs comply with the law

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A girl with Down syndrome goes to school with a backpack

Kathryn Saban’s guide to Education, Health and Care Plans.

An EHCP is a legal document which is drafted by a Local Authority (‘LA’). It sets out, among other things, a child or young person’s special educational needs (‘SEN’), the provision required to support those needs, the type of placement that should be attended and the outcomes a child or young person should work towards. EHCPs can be issued for children and young person between the ages of 0-25 years. To be issued with an EHCP, a LA must have firstly conducted an Education, Health and Care Needs Assessment and determined that an EHCP is ‘necessary’. 

An EHCP is made up of Sections A-K. However, for the purposes of this article, the sections that I will be focusing upon are Sections B, F and I. These are often the sections which are subject to appeal. 

Section B of an EHCP sets out the description of the child or young person’s SEN. The legal definition for what constitutes ‘SEN’ is set out in Section 20 (1) Children and Families Act 2014 which states ‘A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her.’ Section B should provide an accurate, up to date and full description of all of a child’s or young person’s SEN. This requirement is set out in Section 37 Children and Families Act 2014. This is essential so that anyone working with a child or young person has full knowledge of any identified SEN. In addition, SEN provision will only be made on the basis of what needs have been identified in Section B. So, for example, speech and communication needs would have to be identified in Section B, for provision to then be made in Section F. 

Section F details the special educational provision that is required to meet any SEN that have been identified in Section B. Special educational provision is defined in Section 21 Children and Families Act 2014 as educational or training provision that is additional to, or different from, that made generally for others of the same age. Section F must be detailed and accurate. Importantly, any provision must be specified and normally must be quantified. Think of Section F like a prescription. When reading it, it should be evident what the child or young person will receive in terms of support, including how much support they need, how often and who should deliver it. In some cases flexibility may be required, but in the majority of cases specification of support and quantification of how much support is required should be clearly detailed in Section F.

If a child or young person requires therapies to support their education or training (such as speech and language therapy or occupational therapy) this should be specified in Section F as educational provision (rather than being detailed as health provision in Section G of the Plan). Section F should also state what equipment a child may need, what staffing arrangements are requirements, and if there are any modifications needed to the National Curriculum.

■ Provision must be specified and quantified.

Often problems arise when Section F lacks specificity and quantification. Common phrases that are often included are ‘access to’ support, or ‘opportunities for’ support. However, this terminology is vague and could be left open to interpretation about whether a child should, or should not, receive that support. Take ‘opportunities for support’ as an example. Does this mean a child or young person will receive this support, and if so, how often? Will it be every week, every month or not at all? Who will deliver this support?  The provision in Section F should therefore be clear, accurate, specific and quantified, so that there can be no room for doubt. This is crucial as if provision is included in Section F, then the LA must ensure that this provision is made. This is a legal duty set out in Section 42 Children and Families Act 2014. Where provision is vague, it is much harder for parents or young people to enforce their right to receive a specific level of provision.

Some common misconceptions are that school staff are ultimately responsible for drafting the EHCP, determining the support required and delivering the provision. However, it is the LA who is responsible for drafting the EHCP; the specification and quantification of support should not be left to the school to determine. Once provision is detailed in Section F, it is the legal duty of the LA to ensure that the provision is being made (rather than the school or placement). 

LAs should also not simply specify a level or banding of funding in Section F, without setting out what provision should actually be made. While funding can be detailed, it should not be in the absence of confirmation of what SEN provision is required. 

It is often commonly thought that the issuing of an EHCP automatically means that a child or young person will receive 1:1 support. This is not the case. Only children or young people who specifically have 1:1 support drafted into their EHCP would receive this (for completeness, the EHCP should also usually contain who will deliver the 1:1 support and for how many hours).

Section I names the nursery, school, college or other setting that the child or young person should attend, along with specifying what ‘type’ of placement is needed. A ‘type’ of placement may mean stipulating whether a child should attend a mainstream or a specialist placement, for example. If a parent has determined that they would like to electively home educate their child (under Section 7 Education Act 1996), this should be detailed instead in Section I. Section I will be left blank when parents or young people receive a draft EHCP. This is to allow for a parent or young person to specify a preference for a placement. Once the EHCP is finalised, the placement named in Section I must admit the child or young person. The only type of placements that cannot be forced to admit someone is a wholly independent school (who organise their own admission arrangements). 

What happens if you are unhappy? Appealing the contents
If it is considered that amendments are required to the EHCP, it is advisable to put these suggestions in writing to the Local Authority. A good time to do this would be when receiving a draft EHCP, or during the annual review process (the yearly review process which considers whether the EHCP is still accurate and still needed). A meeting with the LA may also be helpful in discussing any concerns. 

Once the final EHCP (or final amended version) is issued, or if the LA refuses to amend an EHCP following an annual review or re-assessment process, a right to appeal is triggered. Parents/young people can appeal to an independent tribunal called the First-Tier Tribunal (Special Educational Needs and Disability). 

The tribunal can determine appeals against the contents of Sections B, F and I (with the tribunal being able to make binding decisions about what should be included in these sections of the EHCP). In addition, the tribunal can also hear appeals, and make ‘non-binding recommendations’ relating to Section C, D, G and H. These are the sections relating to health and social care. However, they can only consider these sections when an appeal has also been made against Sections, B, F and I. Although non-binding, there is a strong expectation that any recommendations made by the tribunal will be followed.

Kathryn Saban
Author: Kathryn Saban

Kathryn Saban
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Kathryn Saban is a Solicitor, Lecturer and the Director of Clinical Legal Education at Lancaster University Law School. She specialises in education law and clinical legal education.

@KathrynSabanLaw
@LancUniLaw

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