Education, Health and Care Plans (EHCPs) can be complex to navigate, but for children and young people entitled to this kind of support, it is vital to get the development and implementation of EHCPs right.
To help you through this process, Lydia Dunford, Education Solicitor at Boyes Turner, outlines five things you need to know about ECHPs.
1. Draft EHCPs
The draft EHCP needs to be prepared based on information and advice gathered during the Education, Health and Care Needs Assessment (EHCNA). Local authorities need to make sure this information meets the required legal standard for needs and provision detailed in the Education, Health and Care Plan (EHCP). Parents or the young person must be given at least 15 days to respond to the draft EHCP, and can ask for more time if required.
The only Section in a draft EHCP to remain blank until finalised is Section I, placement. It should not contain reference to what settings parents or young people can request. Parents’ or young person’s preference, or the setting deemed suitable by the local authority, is to be named once the EHCP is final. Section I needs to name the name of the setting and/or the type i.e. maintained, independent, non-maintained special school. References to any unit resource the child or young person will attend should be detailed in Section F as special educational provision, but may also be detailed in Section I.
2. The relationship between Sections B and F
Section B of an EHCP must set out the child or young person’s special educational needs i.e. difficulties that impact on their ability to learn or be trained under the four broad headings of:
- Cognition and Learning
- Communication and Interaction
- Social, Emotional and Mental Health
- Sensory and Physical
Note that needs does not mean or require a formal diagnosis. Any health or care needs that requires support that educates or trains the young person must also be set out in Section B. There may be an overlap with some needs.
In turn, Section F must set out provision to meet all of the identified Section B needs. Section F provision needs to be as clear and unambiguous as required, which in most cases means provision must be specified and quantified. A suggested level of detail is as follows:
- What provision it is.
- If the support is 1:1 or in a group.
- If a group/with another pupil/s, do they have similar needs to the particular pupil? How many pupils/a maximum number?
- The frequency and duration of direct provision – so, how often per day/week/month and for how long for each session.
- Who to oversee the provision, and what training/experience/qualifications do they need? “Staff member” or “Adults” are unlikely to be sufficient.
- How will the provision be monitored/reviewed, and by who?
- Time for staff training.
If the Section F provision is not specific and clear enough then this risks the full support not being delivered by the local authority, who have a legal duty to do so.
3. Sections D and H passed by
As part of the EHCNA the local authority must seek advice from social care about the child or young person. A response such as “this child or young person is unknown to social care” is insufficient in describing any social care needs they may have. The same also applies if reference is made to the child or young person’s parents meeting their care needs. It does not matter if the child has not previously received, or currently receiving social care support. Examples of social care needs in Section D could include a lack of independence skills and safety awareness when out of the home or school environment, difficulties with handling money or using public transport, or a lack of social opportunities.
Most social care provision should be detailed under Section H1, as provision required to meet the child or young person’s (who are under 18) care needs, such as personal care, including at night, adaptations in the home or support in accessing the community. There is also a Section H2 that must set out any additional support reasonably required, such as support for short breaks outside of the family home.
4. Reviews of EHCPs
For children over five years and young persons, EHCPs are required by law to be reviewed annually as a minimum. This requires consideration of not only the Section B needs and Section F provision, but also the progress the child or young person is making towards the outcomes listed in Section E, and if the placement in Section I remains suitable. Any updated information for these Sections, along with consideration of the health and social needs and provision as necessary, needs to be supplied for each Annual Review.
EHCPs should not contain out of date or historic information for either needs or provision e.g. reference to a child’s needs or support whilst at nursery or primary school when they are now at secondary school. However, Section A can contain such information as part of the background of the child or young person.
5. Appeals to the SEND Tribunal
Parents and young people can appeal to the independent Special Educational Needs and Disability Tribunal if the local authority:
- refuses to conduct an EHCNA
- refuses to issue an EHCP
- wants to end the EHCP (cease to maintain)
Or to challenge the educational contents of the final EHCP – Sections B, F and I. Under the SEND Tribunal’s ‘National Trial’ (currently running to 31 August 2021) appeals can also be lodged (including challenges about the educational contents) to request amendments to the health and/or social care contents – Sections C, G, D and H respectively. Under the National Trial, recommendations can be made about health and/or social care amendments, for the relevant Clinical Commissioning Group or social care division to confirm if they will then provide for the child or young person. In contrast, a Tribunal’s decision about the educational Sections of an EHCP is legally binding on the local authority.
There are strict timeframes and requirements required to lodge an appeal to the SEND Tribunal, and a number of factors to consider, such as if expert reports are need, and the legal requirements to evidence a suitable school placement. We recommend seeking specialist legal advice as soon as possible if considering an appeal.
