Educational Health and Care Plan (EHCP) Guide

What is an EHCP?

An education, health and care plan (EHC plan) is a legal document which describes a child or young person’s special educational needs, the support they require and the outcomes they would like to achieve. The plan can be in place for young people up to the age of 25. The provision outlined in an EHC plan must be provided by your Local Authority. This EHC plan can give your child or young person extra educational support and give more choice about which schools they can attend.

Do I need an EHCP?

If your child has a learning difficulty which calls for special educational provision to be made then they may benefit from an EHCP.

A learning difficulty is defined as having a significantly greater difficulty in learning than the majority of children of the same age; or having a disability which either prevents or hinders them from making use of educational facilities of a kind generally provided for children of the same age in mainstream schools.

An EHCP can be a way to access support that would otherwise not be available such as special school placements, 1:1 teaching assistant support and specialist therapy input.

Who should be making the decisions, me or my child?

When a child is under 16, their parents can make decisions about their education and EHCPs for them.

The following decision-making rights are transferred from parents to young people in the last Friday in June in academic year they turn 16 (so long as the young person has capacity):

the right to request an assessment for an EHC plan (any time up to their 25th birthday)
the right to make representations about the content of their EHC plan
the right to request that a particular institution is named in their EHC plan
the right to request a Personal Budget
the right to appeal to the First-tier Tribunal (SEN and Disability)

Parents, or other family members, can continue to support young people in making decisions, or act on their behalf, provided that the young person is happy for them to do so, and it is likely that parents will remain closely involved in the great majority of cases

A young person can ask a family member or friend to support them in any way they wish, including, for example, receiving correspondence on their behalf, filling in forms, attending meetings, making telephone calls and helping them to make decisions.

However, the final decision rests with the young person.

Mental Capacity

The right of young people to make a decision is subject to their capacity to do so as set out in the Mental Capacity Act 2005.

In cases where a person lacks mental capacity to make a particular decision, that decision will be taken by a representative on their behalf.

The representative will be a deputy appointed by the Court of Protection, or a person who has a lasting or enduring power of attorney.

How do I get an EHCP?

A parent can begin the process by contacting the Local Authority’s Special Educational Needs department and requesting an EHC needs assessment. Alternatively, your child’s school can make the request themselves.

A needs assessment may be requested by a parent, young person or school (including post 16 education institutions).

When a Local Authority is requested to carry out an EHC needs assessment by a parent, young person, school or college, it must consider:

Whether the child or young person has or may have special educational needs ; and
Whether they may need special educational provision to be made through an EHC plan.

If the answer to both of these questions is yes, the LA must carry out an EHC needs assessment.

The legal test is set out in (section 36(8) of the Children and Families Act 2014).

The SEN and Disability Code of Practice 2015 the statutory guidance issued by the government, contains further detail on what Local Authorities need to take into consideration during the needs assessment, In particular paragraph 9.14 of the Code states what the Local Authority should pay particular attention to.

You can only request an EHC Needs Assessment if your child has special educational needs, unfortunately it does apply to only health and social care needs. A child or young person has special educational needs if they have a learning difficulty or a disability which calls for special educational provision.

What does the EHC Needs Assessment process involve?

The Local Authority must reply within six weeks to let you know whether it agrees to carry out an EHC needs assessment, as set out in Regulation 5(1) of The Special Educational Needs and Disability Regulations 2014.

If the Local Authority refuses to carry out an assessment, then they must provide you with a refusal letter which will give you information regarding your right to appeal the Local Authorities’ decision to the Special Educational Needs and Disability Tribunal. This letter will also give you information regarding independent mediation.

If the Local Authority agrees to carry out an assessment, the Local Authority must seek information and advice in relation to the child or young person’s needs, the provision required to meet those needs, and the outcomes expected to be achieved by the child or young person.

Regulation 6(1) of The Special Educational Needs and Disability Regulations 2014 sets out who the Local Authority must get information from during the assessment:

You, as your child’s parent or as a young person
Educational advice (usually from the head teacher or principal)
Medical advice and information from a health care professional
Psychological advice and information from an educational psychologist
Advice and information in relation to social care
Advice and information from any other person the local authority thinks appropriate.
Where your child (or you as a young person) is in or beyond year 9, advice and information in relation to provision to assist your child/you in preparation for adulthood and independent living, and
Advice and information from any person you reasonably request that the local authority seek advice from.

The Local Authority is legally required to get all of this information as a minimum and they should also consider whether a social care assessment or health assessment is also needed.

You can also submit your own advice and reports in relation to your child or young person. The Local Authority may say they cannot consider these reports but under SEND Regulation 7(b), the Local Authority must consider ALL information provided by or at the request of a child, parent or young person.

Within 16 weeks of the request being made, the Local Authority must confirm the following:

The outcome of the assessment
Whether it proposes to make an EHC plan
Reasons for the decision

If the local authority proposes to make an EHC plan it must send a draft plan to the parents or the young person and give them 15 days to respond. The final EHCP should be issued within 20 weeks of the EHC Needs Assessment request.

What should I look for in the draft plan?

When looking over a draft plan, it is important to make sure that it covers all aspects of your child’s needs and makes clear and sets out the quantified provision required to meet those needs.

For example, a good plan would say: ‘X will be provided with [insert number of hours] 1:1 teaching assistant support from a person trained and experienced in working with children with similar needs’ as opposed to ‘X would benefit from regular 1:1 support. The latter phrase is vague and does not place the local authority under any enforceable legal duty. Any provision set out in the plan should be specified and quantified in terms of the amount of time needed, and frequency of input, and the plan should set out what level of training and experience those working with your child will require. If your child needs smaller class sizes, or a certain type of peer group or learning environment this should also be set out in the plan.

It is also important that the plan reflects your child’s needs as they are on the child’s roughest of days. This will ensure that your child does have sufficient support on their worst days.

Can I make a request for a particular school?

The child’s parents or the young person can make representations about the draft plan including requesting that it names a particular school in Section I. Where a particular school is requested, under Section 39(4) Children and Families Act 2014, the local authority must name the school in the EHC plan unless the school would be unsuitable for the age, ability, aptitude or special educational needs of the child, or the child’s attendance at the requested school would be incompatible with the efficient education of others or the efficient use of resources. This does not apply to independent schools.

If the local authority does not name the school that the young person/child’s parents would like, they can appeal to the Tribunal. Any appeal challenging a school placement will likely also challenge the needs and provision set out in the plan, to show why the school names is unsuitable.

What does it mean if I am granted an EHCP?

The final plan must be issued within a maximum of 20 weeks from the date that an assessment was requested. A copy of the final plan must be sent to parents and the school named in the plan.

Once in place an EHCP is a legally binding document which works to protect the support your child needs.

The local authority must secure the special educational provision set out in the plan. For example, if the plan states that a child needs one-to-one support in the classroom, then that support must be provided, and legal action can be taken if it is not.

What happens if the child/young person’s needs change?

Any changes in a child or young person’s needs are discussed at an Annual Review Meeting which is attended by the parents or young person themselves and other relevant people who can include Local Authority officers, healthcare professionals and head teachers. An Annual Review Meeting must be held within 12 months of a final plan being issued, or from the last Annual Review.

At the meeting, those present will discuss the needs of the child or young person and whether the plan is supporting those needs sufficiently. It is an opportunity to raise concerns about the plan and suggest changes.

Within 2 weeks of the meeting the school or the local authority must prepare a written report with recommendations about the plan. Within 4 weeks of the meeting, the local authority must decide if it is going to either 1. Continue, 2. Amend or 3. Cease to maintain (i.e. remove) the plan. The local authority must then inform the child’s parents or the young person of the decision, and of any changes if proposed. The parents or young person will then be given 15 days to respond.

If a plan is to be amended following a response from the parents or young person then the finalised version must be sent to the parents within 8 weeks of the draft plan being sent.

How do I challenge a decision if I am not happy?

The local authority will send out a letter including information about your right to appeal.

Tribunal

The parents or the young person has the right to appeal to the Special Educational Needs and Disability Tribunal (‘SEND Tribunal’) for several different reasons including:

Challenging the local authority’s refusal to conduct an EHC needs assessment (i.e. assess for an EHCP)
Challenging the local authority’s refusal to issue a EHCP following an assessment;
Challenging a decision not to amend EHCP following an annual review;
Where local authorities cease to maintain the plan and/or the content of the plan;
Challenging the content of the EHCP (this is limited to challenging the provisions in the following sections of the plan:
- The child/young person’s special educational needs (Section B);
- The special educational provision required by the child or young person (Section F);
- Educational Placement (Section I)

The time limit to make an appeal at a tribunal is 2 months from the date of the decision notice or 1 month from the date of the mediation certificate (see below)

Mediation

Before going to Tribunal there is a requirement to consider mediation. You do not have to undertake medication but if mediation is requested by a young person or by parents, the local authority is required to attend.

You can receive expenses for attending the mediation and you will still maintain the right to appeal to Tribunal even after attending mediation. Mediation can be a good opportunity to consider the needs of the child or young person in a holistic manner.

Extended Appeals

In April 2018 the Tribunal ran a trial period of 2 years, giving the Tribunal the power to make non-binding recommendations about health and social care aspects of Education Health and Care Plans (EHCPs). These extended powers are now permanently in place.

The extended powers give parents and young people rights to request recommendations about the health and social care needs and provision specified in EHC plans, in addition to the educational aspects, when making a SEND appeal. This applies to all appeals except those that are only in relation to the need to carry out an EHC needs assessment.

Local Authorities must include information on the extended right of appeal in their local offers and also when they make any decision in relation to an EHCP.

During the course of any appeal LAs must provide evidence from the Health and Social Care bodies in response to the issues raised. In addition, if required, Health and Social Care Commissioners must send a witness to attend the hearing to give oral evidence.

It is important to be aware that any recommendations made by the Tribunal in relation to health and social care elements of an EHCP are non-binding and there is no requirement to follow them. However, following any decision the LA or responsible Health Commissioning Body should write to parents/young people providing their reasons for not following any recommendations. If recommendations are not followed, then there is a right to complain to the Ombudsman or alternatively to judicially review the decision.

Legal Aid for Tribunal Appeals

Legal aid for Tribunal appeals is based on the means of the parent (unless the child is 16 or over and receives their own income). If you think you are eligible more information can be found here https://www.gov.uk/civil-legal-advice

Please note that legal aid for Tribunal appeals only covers legal support up to the Tribunal hearing, and not representation for the Tribunal hearing itself.

Judicial Review

Judicial review is a procedure by which the High Court reviews the lawfulness of decisions made by public bodies. There is a 3-month time limit to bring a judicial review, and you may be eligible to receive funding from the Legal Aid Authority to pursue a judicial review. For most judicial reviews it is the child’s means that would be assessed (as opposed to the means of their parents) The types of decisions that can be challenged in this way include:

Failure to provide the educational provision which is set out in the care plan or EHC Plan.
Failure to provide the health provision which is set out in the care plan or EHC Plan.
Failure of the Local Authority to issue an EHC Plan within the legal timescales

How did Covid-19 impact Special Educational Needs Provision?

New regulations were brought in due to the impact of Covid-19 and these impacted the provision of Special Educational Needs in different ways.

From 1 May 2020 to 25 September 2020 there were special arrangements in place that meant that local authorities didn’t need to meet the requirements in Section F of EHC Plans as usual. CCGs also didn’t need to provide healthcare listed in Section G as usual during this time. This was because the government amended their duties so that they only needed to use “reasonable endeavours” to provide the support set out in EHCPs during this time.

However, the ordinary statutory duties were reintroduced on 25 September 2020. That means from this date, local authorities and CCGs must once again abide by their full statutory duties, and must deliver all provision set out in an EHCP. In practice, due to the pandemic, both local authorities sand CCGs may secure some provision virtually e.g. through online tutoring or video sessions with a therapist; placing the child or young person in a temporary placement in another school or loaning school equipment to be used at home. The key is that all provision set out in the child’s EHCP must be provided, and it is not appropriate for the Local Authority or CCG to blame delays or failure to put provision in place on the Coronavirus pandemic. They can be subject to legal challenge if they don’t.

Information kindly written for The Eden Dora Trust by Enable Law.