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Boyes Turner Annual SEN conference 2016
Boyes Turner SEN team hosted their annual conference on 20 October 2016.
Laxmi Patel, Head of Education at Boyes Turner, gave us top tips and guidance on how to complete an Educational Health and Care Plan (EHCP) and provided real examples of outcomes and wording that is inadequate to protect the child’s rights.
Here is a link to a couple of important cases we believe you should be aware of.
- Buckingham v SJ: Buckinghamshire added very important understanding to the meaning of “education” by confirming the broad interpretation of the word. If special educational provision is required to support the child, or young adult, in education or training, then it may be necessary for the LA to issue an EHCP. Whether or not the ‘education’ will result in qualifications is irrelevant.
- Hillingdon v WW: The Children and Families Act 2014 requires young people over 16 years, provided they have mental capacity, to bring an appeal to the Special Educational Needs and Disability (SENDIST) Tribunal themselves. This case provides some clarification on who should bring the appeal when mental capacity is an issue. In Hillingdon, the young person had cerebral palsy which meant that he would have significant difficulties in managing the appeal process. The SENDIST appeal was in his name, but his parents advanced it on his behalf, with his knowledge and agreement. He dictated a witness statement to support the appeal. This was accepted by the tribunal.
- Hertfordshire County Council v MC and KC: An Upper Tribunal decision on when an EHCP is required.
Finally, Dr. Heather Epps Director of Children’s Neuro Physio, gave an expert’s perspective on the new SEN regime and gave professional insight to the challenges of writing SMART (smart, measured, achievable, realistic and time bound) outcomes in an EHCP.
During the event, a lot of questions were raised. Below are a few questions and answers below that were discussed:
Q. How can you write outcomes that are SMART, whilst also fitting the expert’s report into the EHCP format?
A. This is very common difficulty due to the format of the EHCP. Often expert’s reports lose their original sense and meaning as they are broken down in order to be fitted in to different sections of the report. Frequently this creates generic outcomes that have lost the context of the original report. What would be better is to keep the long-term outcomes from the experts’ report and then to break this down into SMART outcomes that are achievable over a term or a year, as an example.
Q. What is the required level of specificity for an EHCP outcome?
A. It is a legal requirement for outcomes to be very specific. Using the SMART approach is a good way of ensuring the outcomes are meaningful for the child, or young person, and are quantifiable.
In particular, outcomes must be measured. For example, specify how many minutes a child requires a certain type of therapy for per week and how that time will be broken down. Also, ensure that outcomes can be quantified so the parents know if their child is receiving the amount of support outlined in the EHCP.
Q. Does a young person, above the age of 16, have to attend their own tribunal hearing if they have brought the appeal in their own name?
A. No. There is no requirement on any person bringing an appeal to attend at a final hearing.
A young person, over the age of 16, with capacity must now be involved in appeals about their own EHCP or needs assessment application. If there is no conflict between the young person and their parents, then the young person can ask their parents to advance the appeal for them. It is important to evidence that the young person is happy for their parents to be “helpers” in the case, for example they could write a witness statement or ‘face time’ the tribunal.
If a young person does not have capacity to bring an appeal, parents may need to seek a mental capacity assessment. If that assessment concludes that the young person does lack capacity, parents can bring the appeal as an “alternative person”.
Q. If a young person does not, and will not, have the capacity to bring an appeal to the tribunal in their own name, could the mental capacity of the young person be specified in the EHCP?
A. The issue of whether the young person has mental capacity is time and issue specific. However, we have seen many EHCPs making reference to mental capacity. It is possible that an educational psychologist would be able to assess the young person’s mental capacity in terms of understanding their own needs, understanding the provisions required to address these needs and if they will have capacity to bring an appeal in their own name. If the young person obviously does not, and will not, have capacity to answer these questions then a statement in the EHCP should be sufficient for the tribunal to explain why parents are bringing the appeal on that young person’s behalf.
I am so happy at the outcome, I don't think we would have had such a comprehensive service from any other law firm, and you took the worry away...I do not regret a single second of the whole process, apart from the bit before you got involved.
James' mother, Boyes Turner client