Best Practice

EHCPs: Common problems and how schools can respond

EHCPs SENCOs Inclusion
Problems during the education, health and care assessment process or within EHCPs themselves can affect pupils and their schools. Specialist education lawyer Nabil Dance considers some common issues and how we might respond as school leaders
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Primary schools encounter a variety of challenges throughout a pupil’s education, such as a child being refused an assessment for an Education, Health, and Care Plan or indeed being refused an EHCP itself.

There can also be deficiencies in particular EHCPs which can have a profound impact on a pupil’s educational progress.

I have experience of advising primary schools and in this article I would like to outline some examples of these scenarios and highlight potential solutions.

 

Problem 1: Vague requirements

Be wary of vague or ambiguous references in an EHCP that undermine the pupil’s special educational provision.

For example, a common problem we have seen with local authorities over the years is being too vague, for example including a requirement such as “regular access to speech and language therapy” or indeed just “access to speech and language therapy”.

The SEND Code of Practice (DfE, 2014) states in paragraphs 9.68 and 9.69: “In all cases, EHCPs must specify the special educational provision required to meet each of the child or young person’s special educational needs. The provision should enable the outcomes to be achieved.

“The (special educational provision required by the child or the young person) must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise, including where this support is secured through a Personal Budget.”

There have been instances of local authorities incorrectly insisting that this duty to specify and quantify special educational provision no longer exists. This is illustrated in recent summaries of appeal cases published by the Independent Provider of Special Education Advice (IPSEA, 2020). The summary states: “This case confirmed that where detail can reasonably be provided in an EHCP, it should be. Even where there is need for flexibility (to meet the child or young person’s needs) in an EHCP, the duty remains on local authorities to specify.”

Where appropriate, professionals can be encouraged by schools and parents to establish in writing that (a) the need for the provision exists, and (b) a certain level of detail or specificity is required – for instance, two sessions of 20 minutes of one-to-one therapy to be delivered by an experienced and qualified speech and language therapist per week.

However, a lack of this particular data cannot be a lawful justification for vague wording in a plan where the local authority is unable to prove that flexibility is required for that provision.

 

Problem 2: Out-of-date information

Do not tolerate out-of-date information in an EHCP. I was once engaged by a maintained special school to review the legality of their pupil’s statements of SEN under the former system.

I was shocked to see that some of the statements referred to needs and provision from appendices produced four academic years ago with data that was clearly out-of-date.

After carefully reviewing those particular pupil files, no recent expert data had been produced by any party. This rendered the annual review process worthless as the local authority evidently had failed to take into account the school’s current views about the pupil’s contemporary needs.

With this particular experience in mind, out-of-date information should not be tolerated if it no longer reflects the pupil’s needs and the special educational provision they require.

This principle remains the same under the EHCP model. The headteacher and governors in this case were under the impression that they were powerless to do anything, which was, and still remains, incorrect in a legal sense.

My reasoning is simply that out-of-date information can no longer be considered accurate – and if it is inaccurate, it does not satisfy the following requirement of the code as stated in paragraph 9.69: “All of the child or young person’s identified special educational needs must be specified.”

Close and strategic coordination with parents, including sharing all relevant information, and providing detailed written input for the EHCP review process, will minimise the extent of any damage where this scenario occurs. 

 

Problem 3: Limited school input

Many senior school managers have expressed concerns to me over the years that the local authority has limited the school’s input during the assessment stage or during the creation of the EHCP.

However, the code clarifies in paragraph 9.61: “In preparing the EHCP the local authority must consider how best to achieve the outcomes sought for the child or young person. The local authority must take into account the evidence received as part of the EHCP needs assessment.”

It continues (paragraph 9.62): “The advice and information gathered during the EHC needs assessment must be attached (in appendices). There should be a list of this advice and information.”

And it also states (paragraph 9.69): “The advice and information gathered during the EHC needs assessment must be set out in appendices to the EHCP. There should be a list of this advice and information.”

Using these guidelines, I would contend that the local authority must consider, list, and attach all written input from the child’s current school.

While the local authority may supply you with, for instance, a small pro-forma document to complete for the school’s input, there is nothing stopping you from submitting further information.

In the event that the local authority does not reference your key points in the draft EHCP, the parents can use your input to formally challenge the local authority’s position throughout the life-cycle of the legal process, which I will elaborate on below. 

Do not allow local authorities to circumnavigate your school’s input.

 

Parental partnership and coordination

I would suggest encouraging parents to obtain independent expert reports (where necessary) that can be used throughout the EHC assessment and plan process, particularly where you believe that this may help to clarify the extent of the pupil’s needs and what special educational provision is required. This extends to the plan review process.

Parents should be made aware that they can appeal to the First-tier Tribunal (SEND) at key stages throughout the local authority’s procedure where a dispute arises, in particular the refusal to: 

  • Carry out an EHC assessment.
  • Reassess the pupil’s needs.
  • Create an EHCP.
  • List the special educational support in the EHCP requested by the parents.
  • Continue maintaining a plan (i.e. revoking it).
  • Name the parent’s preferred school placement in the EHCP.

Parents are often given a period of time, typically two weeks, to make representations to the local authority. These durations represent invaluable opportunities to submit independent expert reports or further material produced by the school.

I have written previously for Headteacher Update outlining advice for schools on preparing for and attending the SEND Tribunal (Dance, 2023a).

I have also written an article which lists various sources of information, support, and advice pertaining to SEN and related areas, which you can pass on to your parents and carers if you wish to do so (Dance, 2023b).

 

Final thoughts

All of these mechanisms and strategies can potentially help families and schools to minimise the potential difficulties that can be experienced throughout the EHC assessment and EHCP procedures. These measures can simultaneously ensure that the pupil receives the support that he or she ultimately requires in school. 

Strategic planning between a pupil’s current school, parents, and independent experts with experience of supporting the pupil is a powerful combination: do not underestimate the true value of your input.

  • Nabil Dance is an educational lawyer who advises parents and schools in England and Wales. You can contact him via nabildance@mail.com. The contents of this article do not constitute legal advice and is provided for informational purposes only. You can Read Nabil’s previous articles for Headteacher Update via www.headteacher-update.com/authors/nabil-dance

 

Headteacher Update Spring Term Edition 2024

  • This article first appeared in Headteacher Update's Spring Term Edition 2024. This edition was sent free of charge to UK primary schools in January. A free-to-access digital edition is also available via www.headteacher-update.com/content/downloads 

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