No hours, just banding, in an EHCP

Over the weekend, we received this flyer from a concerned parent via Facebook. The parent asked us whether what the local authority was proposing was lawful.

The flyer “SEN Banding Information Sessions” poses the question; “Do you understand the new Funding arrangements to Schools and Colleges for Children and Young people with SEN?” (sic)

The flyer goes on with three further statements;

• Did you know that all new Education Health and Social Care Plans (EHCPs) will now refer to a banding?
• What is happening to the description of teaching assistant hours that were on SEN Statements?
• A representative from Wiltshire Council will be attending the sessions to explain more/answer any questions you might have.

The flyer is perhaps a little unhelpful in that it poses three questions and offers no answers.

The parent that sent it to us was concerned because the flyer clearly seems to suggest that this local authority intends to refer to bands of funding, rather than hours of teaching assistant (TA) support.

It is important to note that the flyer does not specifically state that the local authority will be implementing a policy that EHCPs will make no reference to hours of TA support. However, the parent is concerned about  the implication.

We have already replied to the parent. In brief, we think this is unlikely to be lawful.

If a child or young person has special educational needs requiring substantive additional support, they are likely to need an EHCP. The EHCP sets out the child or young person’s needs and the provision that they must receive. Section F of an EHCP describes the special educational provision. TA support will normally be in Section F.

In respect of Section F of EHCPs, Paragraph 9.69 Special Educational Needs and Disability Code of Practice 2015 states:

Provision must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise, including where this support is secured through a Personal Budget

EHCPs, and the law around them, use very similar language to that of Statements of Special Educational Needs (SSENs). As such, all of the Court decisions about SSENs apply to EHCPs.

In terms of the level of detail required by an EHCP, two key cases are L v Clarke and Somerset and S v Solihull. What these cases say between them is that SSENs (and EHCPs) must contain a high level of detail and that there should be “no doubt” as to the precise support that the child or young person should be receiving.

Assuming that this local authority is intending to replace hours with banding in their EHCPs, this could be problematic. It is doubtful that ‘banding’ will give the level of certainty or specification that the Courts require of an EHCP.

Banding may provide for a range of hours. It may be that the local authority prepares a policy along the following lines:

Band A = 0–5 hours per week

Band B = 5-10 hours per week

Band C = 10–15 hours per week

Band D = 15-20 hours per week

Band E = 15-20 hours per week

Band F = 20-25 hours per week

The above is an example based on policies we have seen. The names of the bands, and the boundaries may vary. The point, however, is that banding is not specific. If the EHCP caters for ‘Band C’, then the child or young person is entitled to between 10 and 15 hours of support. But which is it? The point of an EHCP is to let the reader know exactly what support is required. Any uncertainty is not only unhelpful, it is unlawful.

The other issue is that the EHCP is supposed to give the reader an immediate understanding of the child or young person’s needs and provision. The reader is should be able to go through the EHCP and understand what is needed. Requiring the reader to ‘go away and find’ another policy or document in order for the EHCP to make sense is no use. Particular if, as is our experience, the policies are hard to find.

The other concern is that if the EHCP is based on a policy, what happens if the policy is changed? It may be that the local authority’s policy for 2015 is that Band C caters for up to 15 hours of support. What happens if, in 2016, the policy changes Band C so that it provides for only 2 hours of support?

A change of policy would not give parents or young people a right of appeal to the Tribunal. The EHCP has not been amended. It still names “Band C”, so there is no right of appeal, even though what “Band C” is has changed. That would mean that parents or young people would have to seek amendment further to an Annual Review and/or seek to challenge the policy change by Judicial Review. This only adds to the scrutiny families have to use when liaising with local authorities. It certainly is not helping with transparency.

We would consider that references to banding in an EHCP, without specificity elsewhere in the Plan, is likely to be unlawful. Unless each Band caters for a specific number of hours, then is fails the specification requirement. Even if the Bands do cater for specific hours, the issue of changing policies must raise serious concern.

We would be very interested to hear anything further to this meeting to find out whether this policy is being implemented and, if so, how.