EHC plans and the postcode lottery

“Speakers at the Westminster Education Forum touched upon an issue that I believe needs to be discussed and understood more fully.

Changes to the special educational needs (SEN) regime brought about by the Children and Families Act 2014 (CFA) are now starting to take hold and patterns are emerging. Some of these could have been predicted but others are new. One that concerns me greatly is the increased number of enquiries I receive relating to refusals to carry out an EHC needs assessment. The process of getting (and maintaining) an Education, Health and Care (EHC) plan can be a long one but parents and young people are increasingly failing at the first hurdle. Could this be a way of reducing the number of EHC plans and the additional duties that comes with them?

Is the new scheme more costly?

The changes to SEN law were brought about at a time of enormous cuts to local authority (LA) budgets for children and young people which is concerning when the new SEN regime realistically introduces additional expenditure because:

  • Young people can now be supported up to 25 years compared with 19 years under the ‘old’ regime – potentially, an additional six years of support; and
  • LAs are required, with few exceptions, to carry out a complete EHC needs assessment when transitioning from a Statement of SEN to an EHC plan.

The Department for Education’s ‘Statistical First Release – Statements of SEN and EHC plans: England 2015’, 21 May 2015, gives an indication of the numbers involved. In January 2015 there were 235,980 children with a Statement of SEN. Each of these Statements must go through a comprehensive transition process by 1 April 2018.

How can LAs balance their books?

One way is to reduce the number of EHC plan’s.

The two-part legal test that LAs must apply when considering requests for an EHC needs assessment is set out in s36(8) CFA. The LA must secure an assessment if:

(a) The child or young person has or may have special educational needs, and

(b) It may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

The first part of the test is potentially a fairly low hurdle that the child or young person has or may have SEN. An element of doubt, surely lends itself to an assessment? LAs are, however, asking parents, young people and schools for evidence upfront, such as educational psychology assessment reports, evidence that the child or young person is at least two years behind their peers and that they have severe and/or complex needs that affect everyday life.

The second part of the test is dependent on whether the required provision is available without a Plan. The definition of special educational provision is education or training that is additional to or different from that generally made for others of the same age in mainstream provision in England (s21 CFA). Note that the legislation states that the comparator must be what is generally provided in schools across England, not a few LAs. I have found that LAs are increasingly providing their own funding that can be accessed by application by the school. LAs state that this can be done ‘without the need for a statutory assessment’. I have seen the application forms – and they are long and detailed. What is the likelihood that busy schools will have the time to do this each term, each year, for each child? What is to say that the LA’s allocation criteria does not change from one year to the next? Most importantly, what can parents and young people do when they want to challenge the decision?

Right to appeal

A key element to the EHC plans is that it is a legally binding document that enshrines a child/young person’s right to provision. Parents and young people have a right of appeal to an external body if they do not agree with any aspect. By LAs applying their own stringent criteria and SEN funding, we are at risk of creating a postcode lottery in respect of EHC plans”.

Laxmi Patel – SEN Solicitor and Head of Education at Boyes Turner

Laxmi guides parents and young people through the statutory assessment process and conducts appeals to the Special Educational Needs and Disability Tribunal. She is a regular speaker and trainer for national charities, schools and parents’ supporter groups on SEN issues and also writes for nationally recognised SEN journals. Laxmi can be contacted on:

Excerpt used with permission from Westminster Education Forum.

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

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