Following the arrival of Education Health Care Plans (EHCPs) in September 2014, it is reassuring to know that the myth-creation industry remains alive and well.
Incorrect information such as "you can't have an EHCP without a social worker", from a social worker to the parent of a seriously disabled 21-year-old young person. Or "you can't have an EHCP because he doesn't need an education". Others we have heard of include:
- An "EHCP is not relevant" if a young person is seeking further education.
- "Your child is not far enough behind."
- "You can't have an EHCP for dyslexia."
- "You must have 21 hours of teaching assistant support before you can have an EHCP."
- Officers attending Transfer Reviews using the expression "if" to suggest there will be no automatic transfer of a Statement to an EHCP.
This is all misinformation. The legal test is whether provision is "necessary" and the expectation is that all children or young people who would have continued with a Statement will have an EHCP (SEND Code of Practice, Para 9.4 and 2.3, Department for Education (DfE) Statutory Guidance, August 2014).
Just say no!
Reports now establish that local authorities are currently trying to offload the job of completing sections of the EHCP onto parents and schools. We have a number of emails and telephone calls on the subject.
Section 37(1)(a) of the Children and Families Act 2014 requires the local authorities to prepare the EHCP (and that means all sections). This is the local authorities' non-delegable statutory duty (i.e. the job cannot lawfully be offloaded by local authorities).
If, what the local authority asks you to do amounts to drafting their EHCP for them, say "no". Do your job and fill in your own parts and send the forms back to the local authority, referring them to Section 37(1)(a) as above and tell them to do their own paperwork as required by this section.
A simple, but firm "no" should suffice, with the comment: "That is not what the legislation says. We prefer to follow the letter of the law."
Providing educational advice
In so far as schools are concerned, it is quite proper to expect them to provide educational advice for the purposes of the EHCP. Parents similarly are expected to provide parental advice for the EHCP – and nothing else. There is no change here to the old law and practice.
Schools do not have to collate reports from Health and Social Care for the Transfer Review. That is also the local authority's job, because it is part of preparing the EHCP. The idea is that the school produces the educational advice for a Transitional Review. If paediatric occupational therapy, speech and language therapy and physiotherapy are educational, the reports from your school therapist should be submitted to the local authority as part of the educational advice.
Schools have an important gatekeeping role. Reducing the work of local authority administrators has never been a reason for entering the teaching profession. Reducing the staff time available for hands-on, practical SEN teaching should be resisted.
Any local authority response to your firm "no" based on "our policy" is legally flawed. As long ago as 1968 in the case of Padfield vs Minister of Agriculture, Fisheries and Food AC 997, the Court of Appeal decided "policy" cannot frustrate statute (ignore, override or set aside) and subsequent case law has built on this case, which is now a well-established principle of administrative law.
Local authority policy cannot override the non-delegable statutory duty set out in the Children and Families Act 2014. Gatekeeping by schools, to preserve staff time for hands-on practical SEN teaching helping children to learn, may be necessary. The law is on your side.
The essential sections
Turning to the EHCPs produced, the essential parts of the Plans are Section B (equivalent of Part 2 of the Statement), Section F (equivalent of Part 3), and Section I (equivalent of Part 4). Only sections B, F and I can be appealed to the SEND Tribunal.
It has been suggested that the contents of the EHCP are all about Section E outcomes. These are little more than the objectives in Part 3 of a Statement with SMART targets.
More importantly, all sections of the EHCP must be separately labelled "A-K" (Regulation 12(1) of the Special Educational Needs and Disability Regulations 2014) and must also be specific, detailed and quantified, (Section 37(2) Children and Families Act 2014).
If the sections are not correctly labelled, it is impossible to tell which provision is educational provision and therefore legally enforceable (i.e. the local authority must buy it in from private practice if necessary) or carries a parental right of appeal to the SEND Tribunal.
Specificity
The wording used in the Children and Families Act concerning specificity means that all previous case law remains valid. Despite this, phraseology such as "Regular", "Access to" and "Opportunities" which are not specific and quantified continue to appear.
Claims by local authorities that an incorrect format is their "policy" are misguided. For the reasons stated above, local authority policy cannot lawfully override the Children and Families Act 2014 or the Special Educational Needs and Disability Regulations 2014.
Claims have also been made by local authorities that EHCPs without proper labelling or sections missing are approved by the DfE, but these are equally misguided. The DfE has no legal power to override the Children and Families Act 2014 or the Special Educational Needs and Disability Regulations 2014.
EHCPs are based on what is necessary, for the individual child or young person – that means the system is based on individual rights and individual needs, not the needs of the group or the herd.
Do be very specific about how many hours of specialist teaching, such as autism advisory teacher input or specialist dyslexia teacher input, are in your view required. Also how many hours of teaching assistant or learning support assistant are required and what is the skill mix involved?
Do not limit teaching assistant or learning support assistant hours to the number of hours in the school week. If planning, liaision and training, as well as time for the preparation of materials are required, do say so and quantify it. Specify the skill mix involved. If an experienced and highly trained teaching assistant or learning support assistant is needed, say so. You should base this on your professional judgement of what the child needs – not what the local authority's policies are.
There should be no policies preventing such specificity, bearing in mind the requirement for specificity is in the Children and Families Act 2014, which local authority policies cannot override.
Properly labelled and quantified educational sections of the EHCP will deliver additional resources to schools over and above the £6,000 delegated funding. Failure to be sufficiently specific will undermine the funding schools receive for the EHCP and enable the local authority to assert everything can be provided within the £6,000 delegated funding.
The local authority has a legal obligation to deliver what is in an EHCP, even if it is within the notional £6,000 delegated funding. The local authority cannot lawfully say we are not going to deliver, or tell the school to apply for "top-up funding" and then refuse the application. There are legal mechanisms available to ensure that the local authority does deliver and "pays up", provided Section F is properly quantified.
SEND appeals
The SEND Tribunal can rewrite Sections B, F and I. Parents have the right of appeal to the SEND Tribunal and should be encouraged by schools to use it.
Local authorities' track record in appeals has never been good. According to government SEND Tribunal appeals statistics from September 2012 to August 2013, there were 3,602 appeals. For those not conceded (the local authority gave in) or withdrawn before the hearing (agreement reached), 808 went to a full SEND Tribunal hearing. Of these, 682 – or 84.4 per cent – were decided in favour of the appellant parent.
Solicitors acting for local authorities attribute this to, among other things, a rigid adherence to local authority policies and a failure to understand the relevant legislation. While admittedly these figures relate to the old system of Statements, the same is likely to apply to EHCPs.
- Melinda Nettleton and John Friel are among the UK's top special needs lawyers and are the authors of Special Needs and Legal Entitlement: The Essential Guide to Getting out of the Maze (ISBN-13: 9781784500511).