Inside Government Education, Health and Care Plans (EHCPS) Training - Key Points

I have provided training for Inside Government on ‘Meeting the Legal Requirements of an EHCP’, on several occasions, most recently in January 2022. A number of delegates were from schools and keen to know more about EHCPs.

Below are some of the key points I covered, which can be further explored through training should any schools require this. Please contact us either via senexpertsolicitors@boyesturner.com or on 0118 467 6547 to discuss further.

• Local Authorities (LA) have a legally enforceable duty to deliver Section F provision in an EHCP.

With respect to Covid, there is (currently, as of 9 February 2022) no downgrading in LA’s duties under Section 42 Children and Families Act (2014). We therefore expect all provision to be in place as set out in the relevant EHCP. Any concerns regarding the wording of Section F provision can be addressed at an Annual Review of the EHCP. When provision in Section F goes beyond a school’s resources they will need to defer to the LA to address the shortfall.

• Be clear about what should, and should not, be in each Section of an EHCP.

A     - Views, interests and aspirations of the child, parents and young person (YP)

B     - Description of the child/young person’s (CYP) learning difficulties i.e. their SEN

C     - Health needs that relate to the CYP’s SEN

D    - Social care needs that relate to the CYP’s SEN

E     - Outcomes sought

F     - Provision required to meet educational needs

G    - Health care provision

H1  - Social care provision (under 18 years) (s2 of Chronically Sick and Disabled Persons Act 1970)

H2  - Other Social care provision

I      - Type and name of school/college

J      - Details of Personal Budget (if requested and agreed)

K     - List of advice

This is important because not all Sections are appealable to the independent Special Educational Needs and Disability (SEND) Tribunal. Any needs that impact on a child’s ability to access learning are classed as special educational needs (so under Section B). Any provision that educates or trains a child would be considered special educational provision (Section F). Both Sections B and F are appealable.

• The scope of the SEND Tribunal.

The Tribunal can make legally binding decisions about Sections B, F and I respectively. They can also make non-binding recommendations about Sections C, G and D and H1 and H2 respectively. It is therefore very important that the correct information is in the relevant Section of the EHCP, as this will impact on whether a LA has a legal obligation to deliver provision or not.

• If the EHCP is out of date, then it will not be up to scratch to meet that child or young person’s needs.

Often EHCPs contain historic or irrelevant information about the child or young person. This can result in incorrect or insufficient provision to meet their needs, or Section E outcomes that have already been achieved or need reviewing. Use EHCP Annual Reviews as the time to address any outdated information, and gather new evidence as necessary. The whole EHCP can be considered at an Annual Review, but any proposed changes in updating the Plan that the LA does not agree to can potentially then be raised through an appeal.

Whilst the SEND Tribunal cannot address Sections A and can consider Section E in specific occasions, an appeal can still be used to address any requested changes to either/both Sections with the LA directly. Any points not agreed by the conclusion of the appeal would not be considered by the Tribunal, and would require further address at the subsequent Annual Review.

If you have any questions or concerns about your child or young person’s EHCP then please do contact us on senexpertsolicitors@boyesturner.com or on 0118 467 6547 to discuss further.