An Education, Health and Care Plan (EHCP) entitles the child to receive educational provision set out in the Plan.
It should be remembered that the Local Authority (LA) has a duty to deliver educational support that is set out in the Plan but that it only has a duty to deliver ‘adequate’ support and not ‘Rolls Royce’ provision.
How can parents ensure their child’s EHCP is as ‘adequate’ as possible?
Four key areas of SEN
When the draft Plan is received, it is important that parents understand the sections of the Plan that are binding on the LA. These are the sections that are advisable for parents to focus their attention on, namely Sections B and F of the Plan. Section B sets out in detail all the child’s special educational needs. This means that any learning difficulties that the child has, including diagnoses must be set out in detail. Parents often, understandably, focus on cognition and learning and mistakenly omit other areas that affect learning. When thinking of special educational needs (SEN), parents should focus on the following four areas:
- Cognition and learning;
- Speech and communication;
- Physical and sensory needs;
- Social, emotional and mental health.
Each of these is equally important and it is likely that the child has SEN in one or more areas. It should also be remembered that education includes training that may be required for help with developing independence skills, self-feeding, self-care and learning how to cope with sensory overload in the school environment. A child with a brain injury may tire more easily and may require frequent breaks and some flexibility in the school day to withdraw to a quiet space. It may also mean that their difficulties fluctuate from day to day. If the child has epilepsy, they may be missing parts of their education and will need extra time to catch up and this may mean that they require a Teaching Assistant to assist the child in catching up either through pre-learning or post-learning.
How detailed does the support need to be?
Section F is where all provision or support will be laid out. This must be set out very precisely so that there is no room for doubt as to who is providing it, when and how often it will be provided and reviewed and by whom etc. If a Teaching Assistant (TA) is required, then the number of hours should be stated together with whether support is on a 1:1 basis or whether small group or whether an additional TA is required in the whole class. Any therapy provision should be detailed so that it is understood whether therapies are to be provided by the therapist themselves or whether training will be required for any TAs and school staff for them to deliver programmes. Any programmes should have input from the therapist to observe and review and update periodically. There should also be time set aside for any therapists and other professionals to attend or contribute to Annual Review meetings and work with other professionals in a holistic manner. Lastly any specialist equipment should also be set out in Section F.
Education v Health provision
It is often misunderstood that therapies, because they are commonly provided by statutory health, are deemed to be medical provision rather than education. Provided the therapies are to educate or train the child or young person, then they are to be placed under Section F as educational provision. Sometimes LAs and therapists have difficulty in understanding this. It should be noted that the therapists’ professional bodies provide good guidance on their websites.
Therapists sometimes misunderstand how to quantify the level of therapy required by the child or young person. Sometimes the level of support recommended is dependent on the resources available to the statutory body. However, this is the wrong approach. Provision should be recommended in accordance with what the child or young person requires and what their needs are, i.e. it should be needs led rather than resources led.
When they receive the draft Plan, parents should ensure that they go through all appended reports and if they have not received these from the LA, they should ask for them. They should ensure that their Plan includes all recommended provision and specialist equipment. Parents must respond to the draft Plan within 15 days and the LA will then decide whether or not they will amend the Plan in accordance with requested amendments or finalise it.
If the LA finalises the Plan and parents are still not happy with the content, then they can appeal to the Special Educational Needs and Disability (SEND) Tribunal within two months (plus one month for mediation) of the LA decision letter enclosing the final Plan.
Parents can also submit their own independent expert evidence as part of the assessment process and share this with the LA, however, there is no guarantee that the LA will adopt the recommendations of the independent therapist but an independent report may be useful if it is inevitable that parents are likely to have to appeal.
Produced by Laxmi Patel, head of Boyes Turner’s Education team
This article was written for us by Laxmi Patel who leads Boyes Turner’s leading Education team. An expert in special educational needs, Laxmi works closely with parents, schools, local authorities and case managers to ensure that children and young people with special educational needs and disabilities receive the support they need to achieve their potential in their education.
Boyes Turner is a Reading based full service law firm with a dedicated Education team who help families get the extra help and support they require for their children with special educational needs and disabilities.
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