EHCPs: Why families need legal advice. This process is becoming more complex, writes Guv Samra.
In my experience, families often don’t know where to start when making decisions about Education, Health and Care plans (EHCPs), or where to find information resources such as the SEND Code of Practice. Families often just don’t have the time to do all this as well as the daily rigours of family life. So in practice they may think they have little or no choice but to accept the council decision.
All council decisions at the various different stages of the EHC plan process are issued with rights of appeal or mediation information to allow families to challenge decisions that they do not agree with. However, most families are unaware of their legal rights—what they can challenge and on what basis. Some parents will research the required information to assist them in preparing a challenge. Others may not, as they just don’t have the time to do so, or, they will believe that the council are making decisions in the best interests of their child. In the work that I do, the most important piece of information I try to share is that families do have options, if they wish to challenge decisions; whether that be through representing themselves, identifying an advocate or seeking legal representation.
Families will often seek out legal representation to advise them on the content of EHC plans, or over delays in council decision making, with mediation, and with tribunal appeals. Families do feel that the process is becoming more difficult due to delays in council decision making, lack of clear reasoning for council decisions, and as a result, negative decisions in the eyes of parents. This then leads to parents seeking out legal help. I have found that councils will often respond more quickly to legal representatives, which also impacts on the number of families turning to legal assistance. Additionally, legal representatives specialising in SEN will have time and resources to chase councils and inform them of their legal duties to elicit a response. Parents can lodge appeals themselves, and I will encourage them to do so if there are concerns over finances; they simply need the evidence to support their position. However, parents may be unaware of where to obtain this evidence, or they may just find the whole appeal process so daunting that they turn to legal help. There is a perception of tribunals that they are adversarial, confronting and legally complex. However, this is subjective and dependent on each individual’s circumstance. Generally, tribunals are there to help make the best decision for the child.
Parents should not have to incur fees for attempting to secure special educational needs provision for their child, however, they should also not have to feel that they have little or no option when challenging a decision due to a lack of information. Unfortunately, this will remain the status quo as long as councils and parents have differing aims as to what they are looking to achieve from the EHC plan process.
Guv Samra is a Senior Associate for Shoosmiths. She has been a specialist in SEN law for nearly 10 years.