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Unlawful EHCPs (already)
I have recently received a Draft Education Health and Care Plan (EHCP) which is as vague in Section F as we have all come to expect from the ‘old’ Part 3 of a Statement of Special Educational Needs. Multiple references to “access”, “opportunities” and “encourage” appear.
So far so predictable, but this is not the end of it. What this local authority has done is to include an Annex to the EHCP which sets out all of the provision that the child requires. This is in stark contrast to the vague sections actually within the EHCP.
For ease of reference, our factsheet about what an EHCP should contain is here
The Annex is entitled “Outcome planning”. It is in tabular format as follows:
(Click on above image to enlarge)
The footer of this document contains the disclaimer: “Changes to this section do not require the EHC Plan to be reissued”
My view is that this Annex must be unlawful and is positively dangerous in its current form. I say this because:
- The 3rd, 4th and 5th columns in the above table contain special educational needs provision. The statutory guidance has made it clear that the EHCP should have sections within the Plan itself – Section F,G and H respectively – which detail the Education, Health and Care provision support. There is no scope in law for provision to be detailed anywhere other than the prescribed section.
- The Annex is a part of the EHCP which has been invented by the local authority. It is not a creature of statute. It seems to me that detailing all of the actual provision within an Annex, rather than within the statutory section, may make it difficult to enforce the provision. If parents read the Annex they may be reassured that their child will receive sufficient support. However, I am unclear to what extent this ‘provision’ will actually be delivered. It is also very unclear whether the Courts would consider the Annex to be an enforceable part of the Plan.
- It is unclear whether the local authority expects the provision within the Annex to actually be delivered by schools, social care and health commissioning groups. If it does, why this provision is not within Sections F, G and H is unclear. The only possible reason I can provide is that there is less administration involved in amending the Annex rather than the EHCP itself.
- The disclaimer is particularly concerning for two reasons:
- The Annex is the only part of the EHCP which contains any detailed provision. The disclaimer purports to allow the local authority to change the provision without issuing a new EHCP. This could mean that parents are not informed of any change of provision and would enable the local authority to unilaterally make changes without parents being involved.
- If schools within the local authority area are using the Annex as the active ‘Provision’ sections of the EHCP – i.e. a replacement for Sections F,G and H – this could mean that local authorities will be able to change the provision the child is receiving in school without giving parents a right of appeal. Without a new EHCP being issued, no new right of appeal would arise.
The SEND Code of Practice is fairly vague about the content of an EHCP. It does set out the ‘minimum’ content of the EHCP. The Code of Practice at paragraph 9.62 sets out,
“…The sections [of the EHCP] do not have to be in the order [suggested within the Code] and local authorities may use an action plan in tabular format to include different sections and demonstrate how provision will be integrated, as long as the sections are separately labelled”.
As such, the Code does allow for a table setting out how the provision is to be incorporated. What it does not allow local authorities to do is to put all the detail of the EHC provision into a new section of the Plan and to disclaim that section from being appealable and/or enforceable.
I am not opposed to the Annex’s stated purpose of “outcome planning”. It could be a useful tool to track what has been delivered and what progress is being made so that outcomes can be SMART. However, in its current form, and being a replacement for Sections F, G and H of the EHCP, is unlawful.
I have raised this matter with the relevant legal team. I am also hoping that IPSEA will raise this as a more general concern with governing bodies.
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.
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