Douglas Silas continues his series on EHC plans with the first of a two-part article on issues arising from these key documents
Our child has an EHC plan; that’s it now, isn’t it?
Unfortunately, it is not enough just to obtain an education, health and care (EHC) needs assessment and then get the local authority (LA) to agree to make an EHC plan for your child or young person based on the assessment; you now need to ensure the EHC plan is accurate. In my first article on EHC plans (SEN92, Jan/Feb 2018), I looked at the 12 sections that make up an EHC plan (Sections A to K, including 2 “H”s – Sections H1 and H2). These include not only the main educational sections, which are, primarily, section B (education needs), Section F (education provision) and Section I (school/college or other placement), but also health and care provision.
The Children and Families Act 2014 (C&FA) and the SEN Code of Practice (CoP) states clearly that health or care provision which “educates or trains” a child or young person is to be considered as educational provision and should be recorded in Section F (see section 21(5) C&FA), but a lot of LAs seem not to be able to get their heads around this yet and are still seeing EHC plans as strictly educational ones.
What do we mean by “educational”?
EHC plans have replaced statements of SEN in recent years (LAs should have completed the transfer process by the end of March 2018), where there was an easier – although still sometimes disputed – division between “educational” and “non-educational” needs/provision. It seems clear by now that the predominant purpose of an EHC plan is in relation to securing special educational provision (SEP). For example, an LA will only to agree to assess for and make an EHC plan if there is an educational need shown; you cannot get one if you can only show a health or care need (although these should be considered in an EHC plan if an educational need is also shown).
It seems relatively straightforward that if a child has language and communication issues, then a need should be considered educational and the corresponding therapeutic provision required (whether directly or indirectly) should be considered as educational provision. This was supported by the last CoP and is repeated in the current CoP, which sees communication as fundamental to learning, so should be recorded as SEP, unless there are exceptional reasons for not doing so. However, something like a physiotherapy need or physiotherapy provision is not so clear cut sometimes. Even then, courts have held, as far back as 1999, that things like this should be considered on an individual and case-by-case basis.
How do I ensure the accuracy of the EHC plan?
It is important to remember that an EHC plan cannot be perfect all the time, as a child/young person’s needs are constantly changing. We also need to remember that the EHC plan has to provide a summary of need and provision required, so that a person working with the child/young person can quickly pick up the EHC plan and understand them as best they can, or see what they need to provide to them. As there are additional reports appended to the EHC plan from the EHC needs assessment (and there may be other reports, such as annual reviews to take into account), anyone wanting more detail can refer to these.
By law (as discussed in my piece in SEN92, Jan/Feb 2018), the LA must gather advice from relevant professionals about the child/young person’s education, health and care needs, desired outcomes and educational, health and care provisions that may be required to meet them. I also talked about which people/professionals should be approached by the LA to do this and how the EHC plan should be compiled.
A difficulty will always arise if one person says something about a child or young person that another person disagrees with. In these types of situation, where differences seem stark and unresolvable, it is good practice to record both views. By law, the LA must send the draft EHC plan, including the advices appended to the child’s parent/young person and give them at least 15 days to give views and make representations on the content. During this period, the LA must also make its officers available for a meeting with the child’s parents or the young person concerned on request if they wish to discuss the content of the draft EHC plan. This should provide an opportunity to ensure the accuracy of the EHC plan.
What about expressing a preference for a school?
The CoP states that the child’s parent or the young person has the right to request that a particular nursery, school, college or other institution is named in their EHC plan, such as a maintained school/college (whether it be mainstream or special), non-maintained special school or independent school or independent specialist college, where they have been approved for this purpose by the Secretary of State (these are known as “section 41” schools/colleges). The LA must comply with that preference and name the school or college in the EHC plan unless:
- it would be unsuitable for the age, ability, aptitude or SEN of the child/young person; or
- attendance of the child/young person there would be incompatible with the “efficient education of others”, or the “efficient use of resources” (“efficient education” means providing for each child/young person a suitable, appropriate education with regard to their impact on other children/young people).
It is also possible to make representations for places in non-maintained early years provision or at independent schools/specialist colleges/other post-16 providers not on the “section 41” list and the LA must still properly consider their request and balance parental wishes against “unreasonable public expenditure”.
What can I do if the SEP is not sufficient or not being implemented?
If the SEP in the EHC plan is not considered to be sufficient to meet need (or if the needs have not been identified properly) and the LA has not been willing to take account of representations made orally or in writing, the parent of a child or young person with SEN can seek mediation or appeal to the Special Educational Needs and Disability Tribunal. I will discuss this in more detail in my concluding article on EHC plans in the next issue of SEN Magazine (SEN95, July/August 2018).
If the SEP is not being implemented, there may be grounds for taking legal action in the courts. I will also look at this in the next issue of this magazine.
Specialist SEN solicitor Douglas Silas is the Principal of Douglas Silas Solicitors and runs the website:
He is also the author of A Guide To The SEND Code of Practice (updated for 2017/18), which is available for all eBook readers:
The advice provided here is of a general nature and Douglas Silas Solicitors cannot be held responsible for any loss caused by reliance placed upon it.
To read Douglas Silas’s other articles in this series about EHC plans, click below.