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 care needs and set out the provision that needs 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 Section F of the plan, and the clinical commissioning group (CCG) are legally required to provide any health provision set out in Section G of the plan.

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).

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 threshold to acces is quite a low threshold.

Once a request has been made, the Local Authority must notify the parents within 6 weeks of the request to tell them whether or not 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 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 name a particular school in Section I. Where a particular school is requested 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 (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 in an EHCP the school or institution has a duty to admit the child or young person. 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 challening a school placement will likely also challenge the needs and provison 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 and the responsible Clinical Commissioning Group have a duty to arrange any healthcare provision that has been specified 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 information about your right to appeal with decision notices.

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 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 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 the Tribunal can make recommendations about health and social care needs or provision as part of an EHCP appeal. If health or social care recommendations for the EHCP are made as a result of an appeal the Local Authority must follow them. However, they are not legally binding. If the Local Authority/CCG fails to follow the recommendations made then they could potentially be challenged by means of judicial review.  The National Trial is currently 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. The Trial has been extended previously, and we wait to see if it will be further extended beyond August.

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 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.

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 be securing 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.

Finally, the SEND Tribunal is still 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