Douglas Silas provides an introduction to education, health and care plans
Education, health and care (EHC) plans were introduced to replace statements of SEN by the Children and Families Act 2014 and the SEN Code of Practice (CoP), which was updated and reissued in 2015. The transition from statements to EHC plans took place between September 2014 and April 2018. So it’s important to remember that EHC plans are still relatively new.
General duty to provide an EHC plan
The CoP states that a child or young person may have SEN, but their school/college only has a general “best endeavours” duty to provide for them. However, when children/young people need more support than can be provided at school or college, an assessment for an EHC plan by their local authority (LA) may need to be conducted. After this, an EHC plan may be produced for them. The “best endeavours” duty is not defined in the CoP, but this is a proactive duty and usually refers to the school/college trying to do everything they can to meet the child or young person’s SEN.
Health and care provision
One of the arguments for a new SEN Framework was the need to look at a child or young person with SEN more holistically and to consider health and care needs at the same time. This includes legal obligations for differing departments, authorities and organisations to work together and to jointly commission services, wherever possible.
What’s in a plan?
The CoP states that an EHC plan must include the following 12 sections:
- Section A – the views, interests and aspirations of the child, his or her parents or the young person
- Section B – the child/young person’s SEN
- Section C – the child/young person’s health needs related to their SEN
- Section D – the child/young person’s social care needs related to their SEN or to a disability
- Section E – the outcomes sought for the child/young person
- Section F – the special educational provision required
- Section G – any health provision reasonably required (related to the SEN or disability)
- Section H1 – any social care provision which must be made for a child/young person under 18 (resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970)
- Section H2 – any other social care provision reasonably required (related to the SEN or disability)
- Section I – the name and type of school, maintained nursery school, post-16 institution or other institution to be attended by the child/young person
- Section J – where there is a Personal Budget, the details of how it will support particular outcomes and how it will be used
- Section K – all the advice and information gathered during the EHC needs assessment.
What timescales are involved?
EHC assessments and plans must take no more than 20 weeks (subject to any exemptions as follows):
- LAs must give their decision in response to any request for an EHC needs assessment within a maximum of six weeks from when the request was received or the point at which a child/young person was brought to the LA’s attention
- if an LA decides, following an EHC needs assessment, not to issue an EHC plan, it must inform the child’s parent/young person within a maximum of six weeks from the request
- if an LA decides to issue an EHC plan following an assessment, a draft EHC plan must be issued to the child’s parent/young person within a maximum of 16 weeks from the request
- the child’s parent/young person must be given 15 calendar days to consider and provide views on a draft EHC plan and ask for a particular school or other institution to be named in it.
Difficulties with EHC plans
The whole EHC process is supposed to be made up of three distinct stages: (1) getting an assessment; (2) getting that assessment to lead to the making of a draft EHC plan; and (3) getting that draft EHC plan to be finalised in such a way that it names the provision/placement that is wished for. In practice, we have seen a number of difficulties with the process; to follow are three of the main ones.
Hard to understand
The CoP states that: “EHC plans should be clear, concise, understandable and accessible to parents, children, young people, providers and practitioners”. Unfortunately though, like statements, many EHC plans still seem to be written in vague or general language and are often, arguably, still unclear.
Long and confusing
Statements were often criticised if their six parts led to a document of more than about five to ten pages, but we now have EHC plans that, with their 12 sections, are often 15 to 20 pages long, and can sometimes stretch to 30 to 40 pages or more! People have also criticised the fact that some EHC plans are presented in landscape, as opposed to portrait, style and/or are produced in tabulated formats mixing sections (like B/E/F) together, which makes them quite heard to read and decipher.
The law is clear that an EHC plan should clearly state what and how much provision is needed, and who is supposed to be making it, for the child or young person concerned. However, many people feel there is a lack of specificity and quantification in some EHC plans, as with some statements before them.
If parents (or young people themselves) are unhappy about the provision or school/college being named in an EHC plan, it is possible for them to bring an appeal to the SEND Tribunal. They must do so within two months of the EHC plan being issued, or within one month of the Mediation Certificate that they must first obtain to lodge an appeal.
About the author
Specialist SEN solicitor Douglas Silas is the Principal of Douglas Silas Solicitors.