Douglas Silas concludes his series of articles on EHC plans by looking at forms of redress available to parents
What can I do if the provision in an EHC plan is not sufficient?
There are a number of ways you can approach this question as it all depends upon the circumstances. For example, I am assuming that there is a finalised education, health and care (EHC) plan for a child/young person that is in a final form, but that does not reflect the level of SEN (in Section B) or special educational provision (SEP) (in Section F) that is needed. Alternatively, it may name a school/college or other placement (in Section I) that is considered inappropriate to meet those needs, or which cannot deliver the provision required.
The most straightforward answer is that it is possible to appeal against the contents of these sections of an EHC plan to an independent body called the Special Educational Needs and Disability Tribunal. This must be done within two months of the date of the decision letter, which should have been sent with the EHC plan (which could be different to the date on the decision letter). However, if the young person is over 16 years old, provided they are considered to have “mental capacity”, they need to bring the appeal themselves. Otherwise, an appeal concerning a child under 16 years old, or for a young person without mental capacity, usually has to be brought by their parent/s.
However, before any appeal can be lodged, a certificate of mediation must be obtained, which then extends the two-month appeal window by a month (counted from the date of the certificate, even if that date is later than the two-months, provided that the mediation service referred to on the decision letter has been contacted within the two-months itself), or whichever is the later. In addition, where the two-month or extra time deadline falls within August (the academic summer holidays), the deadline is extended until the first working day of September. In addition, there are alternative ways that should be considered too.
Other ways to challenge EHC plans
The Children and Families Act 2014 and the SEN Code of Practice (CoP) talk about other ways to challenge EHC plans which are considered insufficient. In fact, the CoP dedicates a whole chapter to “Resolving disagreements”. The first set of principles it points out is that local authorities (LAs) “… must make known to parents and young people the possibility of resolving disagreements across education, health and social care through disagreement resolution and mediation procedures…” It also states that: “education, health and social care providers should have complaints procedures which, along with details about appealing to the Tribunal, should be made known to parents and young people through the LA’s information, advice and support service.” There is also a helpful table (at paragraph 11.2) which gives a summary of the people and bodies which can consider complaints about decisions and provision, in relation to children/young people with education, health and care needs.
What about mediation?
The CoP states that: “Any mediation provision by a mediation advisor (providing information) or mediator (conducting mediation) must be independent of LAs in England and/or relevant health commissioners (e.g. no-one who is directly employed by an LA in England can be a mediation advisor/no-one who is directly employed by an LA in England/relevant health commissioner can act as a mediator).”
People often get a bit confused by the issue of mediation, the most common mistake being to think that the requirement to seek a mediation certificate before appealing is actually a requirement to mediate before being allowed to appeal. This is not correct as, provided an appeal is not only against the naming of a school (as opposed to also against the SEN/SEP), the actual requirement is only to show that you have considered the possibility of and benefits of mediation.
The CoP also says that the LA must ensure that any mediation session takes place within 30 days of the mediation advisor informing the LA that the parent/young person wants to go to mediation and the LA must attend the mediation and also take part. If the LA is unable to arrange mediation in a case which involves a disagreement on a matter which can be appealed to the Tribunal within 30 days, it must tell the mediator and the mediation advisor must then issue a certificate within three days. It also adds that: “A mediation session/sessions which arises out of these arrangements must be conducted by independent mediators. Once mediation is completed about a matter which can be appealed to the Tribunal, the mediation advisor must issue a certificate to the parent or young person within three working days confirming that it has concluded and if the parent or young person still wants to appeal to the Tribunal following mediation they must send the certificate to the Tribunal when they register their appeal.”
Can you appeal about health and care needs/provision in an EHC plan?
Although the SEND Tribunal’s main jurisdiction has for many years been focused only on the educational provision in a statement of SEN and now an EHC plan, for LA decisions issued after 3 April 2018, there has been introduced a national trial, which gives the SEND Tribunal additional powers to allow them to make recommendations relating to health and social care, as well as educational decisions. There has already been a pilot for a few LAs (and associated clinical commissioning groups/health authorities) before this and the Tribunal has said that, based on this, the type of issues that they now expect are:
- need for cognitive behavioural therapy
- identification/evidence from child and adolescent mental health services
- provision of continence aids.
- lack of social care evidence (for example, no care assessment or the response from social care being “not known to this service”)
- lack of specification in social care evidence regarding identified need or specification of support
- need for residential case based on social care evidence.
Apparently, the initial learning from the previous recommendations pilot also found that there was more positive working between SEN and social care teams within LAs (which allowed for a more holistic view of the child/young person). I believe that health issues raised were not significant or clinical issues, but had been particularly relevant for post school/FE/residential school placements, where there seemed to be no educational need.
What if the SEP is not being delivered?
There are a number of bodies that a parent or person or young with SEN can complain to, such as the education provider itself, the LA, the Secretary of State for Education, the Local Government Ombudsman (now known as the Local Government and Social Care Ombudsman), or Parliamentary Health Ombudsman, depending on what the provision is that is not being made and by whom. Also, often seen as a remedy of last resort, it is sometimes possible to take court action known as “judicial review”, but this usually requires the child or young person to be eligible for and granted legal aid.
Specialist SEN solicitor Douglas Silas is the Principal of Douglas Silas Solicitors and runs the website: www.SpecialEducationalNeeds.co.uk. 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.