Welcome to this short guide on the Education Health and Care Plan process. It is not a substitute for formal legal advice and is for information purposes only. If you have specific concerns or think that we can help you then, please contact us via the contact page of this web site.
In this article, we are going to provide an overview of the main topics surrounding EHC plans in England. The models for Wales, Scotland, and Northern Ireland differ.
What is an Education, Health and Care Plan?
Schools in England must provide support to children with special educational needs (SEN) as part of their standard offer to children. This is called SEN support. Schools are deemed to have £6000 of national funding within their existing budgets to support children at the SEN Support level.
Where a child requires additional support that goes beyond what a school, college, or nursery can typically deliver from their own budgets or staffing then they may need an Education Health and Care Plan (EHCP) –
An EHC plan is a legally-binding document outlining a child or teenager’s special educational, health, and social care needs. The document has to list all of the child’s special educational needs, provision to meet each of the needs and that provision has to be specific, detailed, and quantified. The plan names the school/setting which is to provide the provision and the plan is legally enforceable ultimately through Judicial Review.
Who needs an EHCP?
EHC plans are for those children (0-16) or young people (16-19) or adults (19-25) with special educational needs who require support beyond that which an educational setting can provide at SEN support. A child who has educational needs may also have additional health and social care needs and those can be included in the plan so long as they relate to education. You cannot have a freestanding EHCP for health or social care reasons alone.
The EHCP application process
Below is an outline for the EHCP process from start to finish.
Phase one: EHCP Assessment Application
The request can be made by:
- The parents
- The school
- An interested party
- A paediatrician
- A social worker
A simple written request must be sent to the Local Authority to initiate this process. The Local Authority then has 6 weeks from the date of the request to make a decision on whether to assess the child or not. Ideally, the LA will agree to make an assessment so that we can move on to the next step.
In instances where the LA has declined to make the assessment, we will lodge an appeal to the Special Educational Needs and Disability Tribunal (SENDIST or the “Tribunal”). This is known as a Refusal to Assess hearing. The legal threshold is low, and we would expect LAs to concede before the case gets to Tribunal. The 99.9% of our ‘Refusal to Assess’ cases have been conceded by the Local Authority before it reaches a hearing. Hearing for this phase are normally paper-based and your physical attendance is not required.
Phase two: LA decides on issuing an EHCP
After an assessment, the Local Authority must decide whether to issue the EHCP or not.
There are two options at this point:
- The LA agrees to issue the EHCP and they then have up to 12 weeks from the date of the EHC assessment agreement to issue the Draft EHCP and a further 2 weeks to issue the final plan making 20 weeks in total.
- The LA refuses to issue the EHCP they must inform you of this decision within 10 weeks of the date of the EHC assessment decision was made.
In the case of option 2, when the LA refuse to issue an EHCP we can appeal to SENDIST, this appeal is as a Refusal to Issue an EHCP Appeal. This appeal will be a physical hearing where your attendance is required.
Why are some EHC needs assessments rejected?
The local authority may decide not to give additional support to young students for various reasons, of which the most common are:
- A lack of diagnosis on the special educational needs of the individual
- No report from an educational psychologist
- The child is not deemed to be far enough behind their fellow students
- The LA enforce their policy provision matrix – e.g. attainment not below the 2nd percentile and therefore not bad enough for an EHCP. Such a blanket policy is likely to be illegal.
Once in Tribunal, these arguments tend to fall apart as they are based on local authority policy rather than the letter of the law. This means that, based on that case, there is no legal basis to deny an EHCP. The Tribunal will decide the facts of the case including looking at the child’s individual needs and decide based on the law. The Tribunal ignores LA policy.
Phase three: The Education, Health & Care Plan
Parents will receive a draft EHCP, they have 15 days to comment on and request revisions. The Draft EHCP will not name the school. The accompanying letter will normally identify the school the LA is suggesting they will name. Once any potential changes are made or comments are resolved, the EHCP is finalised.
There is a danger here in that LAs frequently seek to extend this period by entering negotiations and thereby stretch the time in which they are to paying for any provision. Resist it.
The EHCP amendment and appeal process
Only Sections B, F, and I (scroll down for information on these sections) are appealable to the Tribunal. Appeals can be made on these sections and parental attendance will be physically required for hearings. Children under 16 are not expected to attend, whilst young people over 16 are encouraged to attend.
Advice: The Tribunal usually lasts for 1 day. We would advise on who should attend closer the time normally we would advise that you bring a Psychologist as a witness, a SALT or OT, and a representative from your preferred school (if there is a disagreement over which school is named).
How can you deal with LA standard reasons for rejection?
In the previous section (see phase two), we listed three reasons why EHC plans get rejected, and whilst they may be valid, often they are covering up a greater issue: money.
The core reasons for the rejection of parental requests have almost always boiled down to money. Since 2015, there has been a 17% reduction in funding from the government, whilst the demand for EHC plans has gone up 35%. Local authorities are severely underfunded, to the tune of billions of pounds, but this does not remove their duty to individuals who need support.
So, what can you do?
- Parents lose because of different agendas by the partner agencies – Education – Health – Social Care – Schools
- Parents lose because they do not know the framework – go to IPSEA/ SOSSEN
- Parents lose because they don’t have the evidence – get the evidence
- Parents lose because they let the system take over – you need to run the system
What does an EHC plan look like?
The physical delivery of an EHC plan will differ from local authority to local authority, but there are some essential similarities and sections that we will define below:
- Section A: the views, interests and aspirations of the child and their parents, or the young person;
- Section B: the child or young person’s special educational needs (SEN)
- Section C: the health care needs which relate to their SEN
- Section D: the social care needs which relate to their SEN or a disability
- Section E: the outcomes sought for the child or young person
- Section F: the special educational provisions required to meet their SEN
- Section G: any health care provisions reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN
- Section H: social care provisions required by social services under the Chronically Sick and Disabled Persons Act 1970, and/or reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN
- Section I: the name of the school or institution to be attended by the child or young person, and the type of institution
- Section J: details of any direct payment which will be made
- Section K: copies of all of the advice and information obtained as part of the EHC needs assessment
This may seem like a lot to take in, but it’s necessary to explore each section.
Section A is more of an overview of the child and is not legally binding. It is for the benefit of the family and the child and creating transparent Outcomes for that phase of the education.
Section B is the section which must accurately describe each one of the special educational needs of your child, based on:
- Cognition and learning ability
- Communication and interaction skills
- Social, emotional and mental health.
- Sensory and physical disabilities
Section C is the section which looks at health care needs, which could include:
- Physical or mental health difficulties
- Eating issues
Section D looks at social care needs, such as being able to participate in extracurricular activities.
Section E combines all of the information provided and collected and delivers the outcomes based on the assessment. This section details the educational aims that your child should be able to accomplish with the extra provisions. This could be based on educational success or the ability to take part.
Section F details your child’s support (provision) at school. This provision must be specific, detailed, and quantified. For example:
“Mohamed will receive 32.5 hours per week of individual TA support from a TA with at least 20 hours training from the LA complex needs team, on his condition. In the event that the nominated TA changes, any new TA will receive the same training within 6 weeks or before starting work with Mohamed. The TA will work under the direction of the class teacher who will design and supervise a scheme of work following the advice from the advisory teacher who will visit Mohamed on a half termly basis for at least 2 hours during which she will review Mohamed’s progress, advise on the revised teaching plan, train the plan and record her findings”.
“Harry will receive 1 hour a week of direct speech and language therapy from an HPC registered speech and language therapist. Harry’s TA will be in attendance. In addition, the therapist shall design a support program that she will then train classroom staff to deliver. She will monitor the program’s outcomes every half term and then amend and train staff on the new program. The therapist shall prepare a report for the Annual review and attend same, an additional 4 hours will be allocated for this.”
It is the responsibility of the local authority to ensure that the provision named in the EHCP takes place. It is not the responsibility of the school. If you get embroiled in a dispute between the school and LA, you should consider calling us.
You can enforce the EHCP/ provision through Judicial Review.
Section G looks specifically at the healthcare provision requirements, like equipment or medication. Your child may require monitoring software or a specialist wheelchair, for example.
Section H will define the social care provision for the individual, such as pre-arranged short breaks, extra-curricular or out of school activities, as well as home support for the family.
Section I, names the school, college, or educational facility that your child attends. During the draft stage, this should be left blank. The final EHCP will name the school. so that you can later choose which school for your child to attend if a change is required. A school or educational facility must admit the student if they are named here.
Section J contains information about the direct payments that will be made to get your child the support that they need.
Copies of all tests, assessments, advice, and reports, including parental reports, will be gathered up and contained within Section K.
The Government has authorised is a National Trial in which the Tribunal has been given additional powers to make non-binding recommendations in respect to health and social care until Aug 2021. It includes the issuing of Personal Budgets.
It is important to note that the appeal can only be lodged in respect of a case which has an educational element to start with i.e. you cannot have a free-standing appeal about personal budgets or the need for additional health therapy. Remedies for those are dealt with by separate LA/Health processes.
This process is helpful for occasions where a child needs a personal health care plan and support or jointly commissioned care plans. It is also helpful for residential provision to demonstrate the need for waking day and independent living skill provision. It is not necessary for a residential placement to have a social care agreement/sign off.
Although the recommendations are currently non-binding the LAs/CCGs would need to explain to the DFE/DOH why they are not following the recommendations.
How long does an EHCP last for?
An EHCP can last from its issue until your child leaves education or until 25. It does not cover universities.
If you need to move home the EHCP will transfer to the new LA. Within 6 weeks of arriving in the LA area, they will review the plan and consider if it needs to be maintained or amended. You will have fresh appeal rights following any changes by the LA.
An EHCP review takes place once a year as a minimum and based on this review, the local authority may take one of three actions:
- Leave the EHCP unchanged and continue as before
- End the EHCP
- Make alterations to the plan
The review involves all three parties: the parents, the school/college, and the local authority. The reviews are usually done annually at the school or college and give an opportunity to the parents to raise any complaints. It also looks at whether the support is suitable for the needs of the student for the following year, and whether revisions could result in better progress. The school review report must be served on the LA within 10 days of the school meeting. The LA have a month to make its decision which gives appeal rights to the Tribunal.
Why should you seek an EHCP?
The last question is one that may go without saying in many cases but should be asked again to any parent or guardian who is sitting on the fence about pursuing an EHCP. So, here are a few reasons why we think you would want to consider going forward with the EHCP process:
- An EHCP gives your child the support the individual support they need to meet their SEN, going beyond what the school can offer and providing additional resources to improve the quality of their learning experience.
- The EHCP states the provision that a child needs and that has to be provided regardless of any LA funding issues. Any change has to be agreed through the AR process after which a right of appeal to Tribunal is given.
- An EHCP names a school which can include a specialist independent school if necessary, on a residential basis.
- The EHCP is a legally binding document that gives assurances over your child’s education and offers them a great chance for an even brighter future. If the EHCP says it is going to do something, then it must be provided. The EHCP is enforceable through Judicial Review.,
- The EHCP runs up until your child finishes education or turns 25, whichever comes first, although it does not cover universities. It does cover FE Colleges and apprenticeships.
Cease to Maintain
The LA make seek to Cease to Maintain (stop) the EHCP. Normally when the progress has been such that the child no longer needs the support of the EHCP. Most decisions to cease to maintain we see are ill-founded and for the most part not lawful.
The EHCP can be transferred onto FE or an apprenticeship. Neither are grounds to Cease to Maintain.
You have a right to appeal against a decision to cease to maintain within 2 months of the date of issue of the LA decision.
Any provision must stay in place until the appeal has been heard by the Tribunal.
You can combine a Cease to Maintain appeal with a BFI/BFI NT if necessary.
Education Advocacy staff have 35 years’ experience in this highly specialized field. Use our knowledge and expertise to help you gain an EHCP for your child.