An Education, Health and Care Plan in all but name

We have been presented with yet another example of local authorities operating unlawful policies in respect of children with special educational needs (SEN).

This morning we posted on Twitter about Global Developmental Delay (GDD) in support of GDD Awareness Day.

In response to our post, a parent of a child with GDD contacted us about a policy being operated by Devon County Council. We name the local authority so that we can also link to the policy page, here. The parent has kindly agreed to us writing this post because of the concerning issues she has raised.

Why is this relevant?

This is relevant to all parents seeking additional support for their child(ren) with special educational needs (SEN). Parents need to make sure that their local authority is not operating a policy similar to this.

The policy, on the face of it, seems to concern how the local authority intends to make use of SEN additional support, which has replaced School Action and School Action Plus.

Why is this policy a concern?

The policy indicates that where children need additional support they may be issued with a “My Plan”. The wording of the policy seems to suggest that the local authority expects a child to go through a “My Plan” before they would be able to access an Education, Health and Care Plan (EHCP).

It seems that the “My Plan” contains the same material as an EHCP, and can even attract additional funding, but is not enforceable. It also seems that it will be prepared without a full assessment of the child.

The website describes the “My Plan” as follows “[it] will set out areas of need and the targeted support required to meet these and achieve the best outcomes”. It strikes us that this is an EHCP in all but name.

In addition we understand that an SEN officer for the local authority has advised that:

• Children in mainstream school will not be issued with an EHCP, but rather a “My Plan”
• All children with SEN will be issued with a “My Plan” before an EHCP, or even an EHC needs assessment, is completed
• Children with a “My Plan” will remain on that support for at least 2-3 years before an EHCP would be considered – what we have described as a ‘qualifying period of difficulty’.

For the sake of clarity, we consider each of these three points to be unlawful.

What is the law?

Children are considered to have SEN if they have a disability or learning difficulty which requires support in accessing education which goes beyond that generally made available. “Generally available” refers to the support on offer to all children (not just those with SEN) in mainstream schools.

Once a child is recognised as having special educational needs they are entitled to additional support.

Not all children with SEN require an EHCP. The EHCP is a replacement for the Statement of Special Educational Needs. As an indicator, roughly 20% of children with SEN previously qualified for a Statement. We expect this to hold true for EHCPs as the legal tests are the same.

As such, it is reasonable for the local authority to operate a policy which caters for children that do not require the additional support of an EHCP. However, the difficulty with this policy, and particularly with what the SEN officer has advised, is that the “My Plan” is being used as a preliminary step, and almost a barrier, to an EHCP. This is wrong in law.

The route to an EHCP is an EHC needs assessment. To secure an EHC needs assessment it only needs to be shown that a child has SEN and might require the additional support of an EHCP. It would seem that if a child has SEN and requires a “My Plan” with additional funding, the test for an EHC needs assessment is satisfied.

At the end of the EHC needs assessment the local authority will decide whether or not an EHCP is required. This involves another legal test which is whether it is necessary for SEN provision to be made via an EHCP. Again, if a child is supported with a “My Plan” , carrying with it additional funding, then it would seem that an EHCP would be necessary.

Final thoughts

Being generous to the local authority, the creation of a “My Plan” could be seen as a helpful method to support children through SEN additional support. However, the advice from the SEN officer, and the wording of their website, suggests that the “My Plan” is being used as a barrier to EHCPs.

We anticipate that this local authority may try to use the argument that the “My Plan” means that an EHCP is not necessary. The important points though are:

• The “My Plan” is written without the benefit of an EHC needs assessment and so cannot render an EHCP unnecessary. A detailed understanding of needs is necessary for children with SEN, so the “My Plan” may be inadequate.
• The “My Plan” is unenforceable.
• The “My Plan” can be reviewed, amended, altered or ceased by the local authority without parents or young person being able to challenge it by appeal. The absence of any right of appeal against the “My Plan” must make an EHCP necessary if that level of support is needed.

In principle, the “My Plan” could be useful. It could help codify SEN additional support. However, it must not be used as a screening process for an EHCP or to create a qualifying period of difficulty.