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Continuing his series of articles, Douglas Silas looks at the process for completing EHC plans

In my article in the last issue of SEN Magazine (SEN92, Jan/Feb 2018), I looked at what education, health and care (EHC) plans are, what should be in them, who contributes to them and how they are compiled. In this article (which should be read in conjunction with the first), I will focus on the processes required to complete an EHC plan.

What are the “advices” that have to be obtained?

A local authority (LA) that agrees to an EHC needs assessment, must obtain “advices” in order to compile any EHC plan that it subsequently agrees to issue. Advice and information requested by the LA must be provided within six weeks of a request, or more quickly wherever possible (although there are some exemptions). The LA will seek written “advices” (reports) from a number of different people involved with the child/young person and must give to those providing advice, copies of any representations made by the child’s parent/young person and any evidence submitted by them, or at the request of the child’s parent/young person.

The SEN Code of Practice (CoP) also adds that the principle underpinning obtaining advices is “tell us once”, avoiding the child’s parent/young person having to provide the same information multiple times. It adds: “Professionals should limit their advice to areas in which they have expertise. They may comment on the amount of provision they consider a child or young person requires and local authorities should not have blanket policies which prevent them from doing so.”

What are the timescales?

The SEN Code of Practice (CoP) states that the process of EHC assessments and plans must be carried out in a timely manner. The whole process, from the point when an assessment is requested (or a child/young person is brought to the LA’s attention) until the final EHC plan is issued, must take no more than 20 weeks (subject to any exemptions). Time limits set out are the maximum time allowed, but steps must be completed as soon as is practicable. Under no circumstances should the child’s parents/young person be put under pressure to agree things more quickly than they feel comfortable. Where there is any doubt or the child’s parent/young person requests more time, LAs must follow these steps and timescales:

  • 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/other institution to be named in it.

The CoP says that LAs should keep delays to a minimum and let the child’s parent/young person know if any exceptions apply, so that they are aware of and understand the reasons for any delays, but all other parts of the process must be completed within their prescribed periods (regardless of whether exemptions have delayed earlier elements). There is a helpful diagram at paragraph 9.44 of the CoP, which sets out the statutory timescales and decision points of the EHC needs assessments and plans process that LAs must adhere to (subject to specific exemptions) and it also says that LAs must work in partnership with the child’s parent/young person.

Can I make representations on the draft EHC plan?

Yes, the LA must send the draft EHC plan (including the advices, commonly referred to as “appendices”) 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 parent/young person on request if they wish to discuss the content of the draft EHC plan.  

Can I request a preferred school?

Yes and no! Yes, because the CoP states that: “The child’s parent or the young person has the right to request a particular school, college or other institution of the following type to be named in their EHC plan: maintained nursery school; maintained school and any form of academy or free school (mainstream or special); non-maintained special school; further education or sixth form college; independent school or independent specialist colleges (where they have been approved for this purpose by the Secretary of State and published in a list available to all parents and young people)” – these are known as “section 41” schools/colleges.
The LA must then consult the school or college concerned and send them a copy of the draft EHC plan, then consider their comments carefully, before deciding whether to name them in a finalised EHC plan. If another LA maintains the school, that LA must also be consulted. The LA must also 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).

However, I also say “no” because the child’s parent/young person may also 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. But the LA is not under the same conditional legal duty to name the provider; they only have to have regard to the general principle (in section 9 of the Education Act 1996) “… that children should be educated in accordance with their parents’ wishes, so long as this is compatible with the provision of efficient instruction and training and does not mean unreasonable public expenditure.” An independent institution must also agree to admit the child/young person, before the LA can name it in an EHC plan.

What if I disagree with the final EHC plan?

The CoP states that, when finalising a draft EHC plan, the LA must not make any other changes apart from those suggested by the child’s parents/young person; if the LA wishes to make other changes, it must reissue another draft EHC plan to the child’s parents or young person. Where changes suggested by the child’s parents or young person are not agreed, the LA may still finalise the EHC plan but must notify the child’s parents/young person of their right to appeal to the SEND Tribunal – normally referred to as the First-tier Tribunal (FtT) (Special Educational Needs and Disability), or previously known as “SENDIST”. They should also tell them of the time limit for doing so, as well as the requirement for them to consider mediation if they wish to appeal, and where to obtain information, advice and support on disagreement resolution services. The final EHC plan must also be issued to the school, college or other institution named in it (and to the relevant clinical commissioning group or NHS England). Where a nursery, school or college is named in an EHC plan, they must admit the child/young person.  

Where the child’s parent/young person disagrees with the school, college or other institution named in it and makes alternative arrangements, the CoP states that the LA must satisfy itself that those arrangements are suitable before it is relieved of the duty to secure provision. If it is satisfied, the LA need only specify the type of provision rather than a school/college, who would otherwise have to keep a place free that the child’s parent/young person has no intention of taking up.  

Further information

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:
www.AGuideToTheSENDCodeOfPractice.co.uk

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.
Part 1

Part 3


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