SEND lawyer and parent Sarah Fitzgibbons debunks some common myths about EHCPs.
According to the latest government data, there are of 1.37 million children in the UK with SEND. By law, all schools are required to make ‘reasonable adjustments’ (s20 Equality Act 2010) throughout the school day and during lessons to support children with disabilities (as defined by s7 Equality Act 2010). Other than special and independent schools, all are also required to use their best endeavours to ensure special educational provision is in place for a child with SEND (s66 Children and Families Act 2014). Some children will require a more comprehensive approach to meet their needs. Enter the Education Health and Care Plan (EHCP), a tailored, evidence-based document that details the educational and other provision a child will require to meet their needs and achieve their best educational and other outcomes.
Despite the legislation introducing EHCPs coming into force in 2014, myths about applying for and maintaining EHCPs remain surprisingly common. If you are a parent or carer of a child with SEND or working with children with SEND, you will already be familiar with the challenges of ensuring adequate support for children with SEND including obtaining EHCPs. From unnecessary red tape to a seemingly endless back-and-forth between parents, schools and local authorities, the process of applying for and implementing an EHCP can be intimidating and confusing for many. Budget squeezes and limited staff resources in local authorities and the NHS only exacerbate the problem. If you are considering applying for an EHCP there are a number of myths and misunderstandings that persist in this area.
Myth 1 A child must have complex needs, or be far behind, or have a diagnosis to qualify for an EHCP.
Many families and schools believe that qualification for an EHCP hinges on elements such as the complexity of needs, a formal diagnosis, or evidence of low attainment at school. In fact, the bar for deciding if an EHCP is necessary is surprisingly low. Set out in the Children and Families Act, the criteria are embodied in two simple questions:
- Does a child have / may they have special educational needs?
- May it be necessary for provision to be put in place to meet those special educational needs in accordance with an EHCP?
The key word here is ‘may’. Being able to show evidence of need and some evidence that an EHCP may be required, e.g. more is needed than the school provides under SEND Support, significant therapy input is needed, a new school may be required.
Myth 2 The only way to apply is to fill out masses of complicated paperwork.
In the past many clients have complained of the baffling, bureaucratic process of applying for an EHCP via their local authority’s website. Many local authorities will have their own distinct application portals, containing a plethora of documents to read and sign. Most, if not all, are time-consuming, complicated and even intimidating. Legally, however, you are under no obligation to use them. The ‘proper’ application channels often appear to be deliberately confusing, which is why I advise clients to send their request for an EHCP assessment via email to the director of Children’s Services at their local authority, stating that it is a formal request for an EHCP assessment. The communication should also contain:
- The name and date of birth of the child and your relationship to them.
- What needs you think the child has.
- Why an EHCP may be necessary.
- Specific requests about who needs to be consulted in the EHCP assessment.
- All evidence of need such as doctors’ notes, therapy report or school reports and details of any support that has already been put in place.
Schools are also in a position to apply for an EHCP assessment on behalf of a child, but a family should be fully involved in that process and from experience it is often better for a family to apply themselves (if they are in a position to do so). They will always be the most motivated to obtain the right provision and school for their child, no matter how supportive a school may be.
Myth 3 Once I’ve sent my initial request, the process is out of my hands.
Parents and carers will know better than anyone what their child needs. Families should not allow themselves to be side-lined at any point in this process. You can be as proactive as you have time to be. You can push to ensure the EHCP assessment timescale stays on track, that all those who must produce reports do so, that those reports are truly reflective of the child’s needs, that you have a say in the contents of the final EHCP. If you feel a particular person should be consulted, say so. If you want a certain school to be considered, you can name it at the draft EHCP stage. Communicate your understanding of the child and their needs and share all evidence that you have of needs. Keep all important deadlines in your diary too, and don’t be afraid to send a reminder immediately if delays occur. There are legal remedies to force compliance with deadlines too.
Myth 4 The local authority names the school a child attends
Parents in fact have a right to request any of the following types of school in an EHCP:
- A maintained school or nursery (mainstream or special);
- An academy (mainstream or special);
- A non-maintained special school;
- A section 41 school (usually independent special schools).
There are limited reasons a local authority could refuse such schools and the onus is on them to prove why you should not have your choice of school.
The position is different if you are requesting an independent mainstream school, but a local authority must have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents as far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. The onus however will be on parents to evidence that they have met the legal test.
Myth 5 My child/pupil’s needs have changed; do I need to wait for an annual review?
An EHCP is a living document. This means that it can be adapted or altered if evidence demonstrates needs have changed or provision or school placement is no longer appropriate. Once an EHCP is finalised, this places a legal obligation on the local authority to deliver provision. By law, an EHCP must be reviewed at least annually (or six monthly for younger children). However, an early review can be requested and it is therefore important not to delay if it is evident the EHCP is not meeting the child’s needs and not wait for the next annual review.
Author: Sarah Fitzgibbons
Sarah Fitzgibbons
Sarah Fitzgibbons is senior associate at Gateley Legal, who provide special educational needs and disability support for families.
https://gateleyplc.com/services/special-educational-needs-and-disability-law/
