Educational Health and Care Plan (EHCP) Guide

What is an EHCP?

An education, health and care plan (EHCP) is for children and young people aged up to 25 who need more support than is available through the usual resources available to your average mainstream setting. EHCP’s  identify educational, health and social needs and set out the provision that is to be put in place to meet those needs. The local authority are then under a legal duty to deliver any educational provision set out in the plan and the clinical commissioning group (CCG) are legally required to provide any health provision.

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:

  • 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 assessment for an EHCP. 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).

The Local Authority must assess if the child or young person has Special Educational Needs and if it may be necessary for Special Educational Needs provision to be made in accordance with an EHCP.

The Local Authority must notify the parents within 6 weeks of the request to tell them whether an assessment is to be completed.  Parents should be aware that local authorities will often apply stricter criteria than is set out in the law leading to requests being refused incorrectly. If your local authority refuses to complete an assessment you will be given a right to appeal against this decision (see below) and the majority of these appeals result in local authorities agreeing, or being ordered, to conduct an assessment.

What does the EHC Needs Assessment process involve?

As part of the assessment the Local Authority must obtain the following:

  • Advice and information from the child and parents;
  • Education, medical, healthcare and social information (this should include information from an Educational Psychologist)
  • Advice from any person the child and/or parents request that the LA seeks advice from (this means that if your child has speech, language and communication needs than it may be reasonable to ask them to obtain advice from a Speech and Language Therapist during the assessment. Or if your child has physical or sensory needs then an Occupational Therapist and/or Physiotherapist may need to be involved in the assessment).
  • From Year 9 onwards, the local authority will also obtain advice to assist with preparation for adulthood and independent living.

If you have obtained any private reports, for example from your child’s speech therapist, the local authority is obliged to consider these. They may not accept what is in the reports and if there is a disagreement with the local authority, the parents or young person will need to go to the SEND Tribunal for a decision. (More information on SEND Tribunals can be found below.)

When assessing whether to issue a plan, the local authority asks the following questions:

  • Can the child’s special educational needs be met through provision from the resources normally available to a mainstream school?
  • Will these needs actually be met?

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.

What should I look for in the draft plan?

When looking over a draft plan, it is important to make sure that the EHCP covers all aspects of your child’s needs and makes clear and quantified provision for 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 provided should be specified and quantified in terms of the amount of time needed, frequency 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 by requesting to name a particular school. Where a particular school is requested the local authority must name the school on 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 (which may be the case if the school is full and says they do not have enough space for another child), or the efficient use of resources (for example if the local authority consider there is another school that can meet your child’s needs which does not cost as much).

Once a school is named on an EHCP the school or institution has a duty to admit the child or young person.

What does it mean if I am granted an EHCP?

The child’s parents or the young person can make representations about the draft plan including by requesting to name a particular school. Where a particular school is requested the local authority must name the school on 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 (which may be the case if the school is full and says they do not have enough space for another child), or the efficient use of resources (for example if the local authority consider there is another school that can meet your child’s needs which does not cost as much).

The final plan must be issued by 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. 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.

The local authority must secure the special educational provision set out in the plan and the responsible Clinical Commissioning Group have a duty to arrange any healthcare provision that has been specified in the plan.

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.

At the meeting, those present will discuss the needs of the child or young person and whether the plan is supporting those needs sufficiently.

Within 2 weeks the school or the local authority must prepare a written report with recommendations. 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 the plan. The local authority must then inform the child’s parents or the young person of the decision and any changes. 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 information about your right to appeal with decision notices.

Tribunal

The parents or the young person has the right to appeal to a tribunal for several different reasons including:

  • Challenging the local authority’s refusal to assess for an EHCP;
  • Challenging the local authority’s refusal to issue a EHCP;
  • 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;
    • The special educational provision required by the child or young person;
    • Educational Placement

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 a tribunal there is a requirement to contact a mediation advisor to assist in the first instance. 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 a tribunal even after attending mediation. Mediation can be a really good opportunity to consider the needs of the child or young person in a holistic manner.

National Trial

Currently, there is a ‘National Trial’ taking place meaning that tribunals can make recommendations on about health and social care needs or provision as part of an appeal. If recommendations are made this can mean that the local authority must follow them. If the local authority fails to follow binding recommendations then this decision can potentially be subject to judicial review.  This National Trial is in force until at least 31 August 2021 – this means that if you receive a right of appeal at any date before then you will be able to appeal under the National Trial.

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

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 about 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 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 to issue an EHC Plan within the legal timescales

How has Covid-19 impacted Special Educational Needs Provision?

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

Timescales have been amended meaning processes may take longer than usual. This includes decisions in relation to request for a needs assessment, whether to issue EHCPs and finalising them. It also includes annual reviews, arranging mediations and the actions the local health authority must take when receiving recommendations from a Tribunal. This does not mean that the Local Authority will stop taking these steps the extended timescales simply give them greater flexibility. If the deadline for a decision or action had passed before 1 May 2020 then this increased flexibility does not apply. 

 Local authorities’ duties to secure all provisions listed as required special educational provisions has been changed to a duty to make ‘reasonable endeavours’ until 31 June 2020, this period may be extended. This is for a number of reasons including children or young people not attending placements due to school closures and the adherence to social distancing guidelines disrupting normal programmes in education settings and making some interventions impractical.

When the local authority makes these decisions about these required provisions it should consider the following:

  • the specific local circumstances (such as workforce capacity, temporary closures, social distancing measures);
  • the needs of and specific circumstances affecting the child or young person;
  • the views of the child, young person and their parents over what provision might be appropriate.

The local authority should keep a record of the provision it decides to secure or arrange and then confirm to the parents what it has decided to do and provide an explanation as to why. The matter should then be kept under review.

In practice this may mean the local authority securing provisions 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.

Tribunals should still be operating as normally as possible and all hearings are now going ahead by telephone or video link.

Information written for The Eden Dora Trust by Irwin Mitchell Solicitors