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Who is responsible for therapy in an Education, Health and Care Plan?
There is still quite a lot of confusion about how therapeutic provision should be provided to a child or young person who has an Education, Health and Care Plan (EHCP).
Yesterday, 6 January 2016, we received a letter from a local authority which stated,
“the [speech and language, occupational and physio] therapists are not employed by the school. These are NHS medical professionals (some in this case are independent workers), not educationalists. As such their key input i.e. what they are going to do, must be written in Section C – Health or Medical”
We posted about this comment on Twitter when we saw it. It was staggering that local authorities are still getting this wrong. Our comment attracted a lot of response. The Twitter thread can be found here.
We would also highlight that Section C is a description of need. It is not a description of provision as the quote above suggests.
We write this post in the hope that this will help to clear up any confusion. We would welcome this to be shared so that parents, support groups and (hopefully) local authorities can get it right and to understand why it is important.
What is the issue?
The issue here is that the local authority has failed to understand the law. However, this local authority is not alone in this error. This is one of many comments of this nature that we have seen in the last few weeks. It is worrying how many local authorities are claiming that therapists are employed by the NHS so their support is medical, not educational.
It is now 15 months since the Children and Families Act 2014 came into force. We have written extensively about the problems and missed expectations. There will always be disagreement about how the law should be interpreted, but such fundamental errors in law are worrying.
What is the law?
An Education, Health and Care Plan (EHCP) is separated into 12 parts. These parts detail the education, health and social care needs and provision necessary to cater for a child or young person’s special educational needs and disabilities.
The ‘education’ element deals with the child or young person’s special educational needs and disabilities (SEND) and the necessary “Special Educational Provision” called for by those SEND.
The description of the child or young person’s SEND go into Section B of an EHCP. The Special Educational Provision required to meet those needs goes into Section F of the EHCP. The local authority is responsible for delivering (including funding) the support in Section F of the EHCP (See s42(2) Children and Families Act 2014 and paragraph 9.76 of the SEND Code of Practice 2015).
“Special Educational Provision” is defined by s21 Children and Families Act 2014 :
- For children under two, it is any form of educational provision
- For children over two, it is education or training that anything that is different, or additional, to that normally available in a mainstream setting.
Section 21 also sets out that any provision from health or social services, which has the effect of educating or training a child or young person is “Special Educational provision”. See also paragraph 9.73 of the SEND Code of Practice 2015.
The Code of Practice at paragraph 9.74 does make clear that decisions about whether a therapy is education or health provision must be taken on an individual basis. That means that general policies from local authorities, as suggested by the above quote, must be wrong in law.
There is also substantial case law. The leading case is R v Lancashire County Council ex parte M  2 FLR 279. This case determined that teaching a child (or young person) to speak is just as much education as teaching them to write. This case, coupled with 9.74 of the SEND Code of Practice 2015 mean that it is almost certain that speech and language therapy is an educational provision.
The same logic applies with both occupational therapy and physiotherapy.
An occupational therapist (OT) will often provide specific programmes for the development of basic functional skills which are necessary in order to be able to access, engage with and benefit from education. A physiotherapist (PT) will provide programmes and equipment for the control of pain, posturing and adaptive equipment to ensure, again, that a child or young person can access, engage with and benefit from education. Depending on the individual needs of the child/young person, both occupational therapy and physiotherapy can be and are often accepted as being educational provision.
So, the law makes clear that speech and language therapy is presumed to be an educational provision. Further, occupational therapy and physiotherapy, because they provide education and/or training, and because they enable other elements of education, can be educational provision.
Why does this matter?
When a provision is recognised as a Special Educational Provision it is placed into Section F of the EHCP. The local authority, not health, is responsible for Section F.
This is important for two reasons:
- If the provision is not made available, you need to know who to take enforcement proceedings against; and
- It is the local authority that is responsible for, and funds, the provision in Section F.
The second point is likely to have the most significant practical effect for parents.
If there is a disagreement about the content of an EHCP, particularly in terms of the school being named, that disagreement may also need consideration of the ‘cost’ of the provision. The Tribunal can only consider the Special Educational Provision – i.e. the provision, and cost of that provision, in Section F. As such, it is important that any and all provision that is Special Educational Provision is in Section F so that it is included in that cost.
We have seen that local authorities try to suggest that, even if the provision is in Section F, it is the NHS that funds the provision. That is wrong.
Even if the therapists are employed by the NHS – and their wages are paid by the NHS – the therapists’ time is ‘bought’ by the local authority from the NHS. The hourly rate that the local authority pays the NHS will vary between Clinical Commissioning Groups and local authorities and will be a matter for contract/service agreements between those agencies. However, it is very important to understand that it is the local authority, not the NHS, that will ultimately ‘pay’ for the provision.
If parents accept the local authority’s position that therapies should be in Section G, rather than Section F, the following issues can arise:
- The provision contained in Section G cannot (currently) be appealed to the SENDIST;
- It will lead to an inaccurate calculation of costs of the provision to the local authority. This could significantly impact on prospects of success to an appeal to SENDIST/negotiations with the local authority; and
- If parents/carers are asking for a Personal Budget, the funding for the therapies needs to be correctly allocates from the correct paying agency.
If any organisation or local authority believes that we are wrong in this, we would welcome feedback so that we can discuss it.
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