SEN questions and answers from Kidz South

On Thursday 4 June SEN Solicitors attended Kidz South Exhibition. During the day we met with a number of NHS experts, independent experts, case managers and parents. We discussed experiences of special educational needs reforms, common issues and difficulties.

Laxmi Patel hosted a seminar to talk about the special educational needs reforms and the issues we have noticed.

The most common questions during the day, and the seminar, are listed here. Click the link to access our answers.

• Personal Budgets – does the local authority have to provide one? What can it include e.g. equipment, therapies, transport?
• Physiotherapy is being placed in the Health section of the Education, Health and Care Plan (EHCP) – is this right?
• The local authority has issued a final EHCP that parents do not agree with. Parents were away and did not respond in time. Can anything be done other than appealing?
• Local authority has not carried out a full EHC needs assessment – what can parents do?
• Local authority has not issued a final EHCP yet and the child / young person is transitioning to post-16 placement in September 2015. They still do not know the placement that the child/YP will be going to.
• Can parents ask the LA to ask for advice from their own professionals (Consultant, therapists etc) when carrying out the EHC needs assessment?
• Are children in Wales affected by the special educational needs changes?
• The Local Authority is issuing My Plans rather than EHCPs – what’s the difference?

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Q: Personal Budgets – does the local authority have to provide one? What can it include e.g. equipment, therapies, transport?

Personal Budget is essentially the cost of all the provision within the Education, Health and Care Plan (EHCP). It is typically separated between education, health and social care elements.

Parents can ask for a Personal Budget whilst the EHCP is being prepared. The local authority does not have to prepare the Personal Budget in all cases. If it is practically impossible to separate the costs of the provision from monies already delegated to other agencies, the local authority can refuse to make a Personal Budget.

If the local authority does refuse to make a Personal Budget it is possible to challenge that decision by a complaint to the Local Government Ombudsman, or by application for Judicial Review. It is strongly advisable for parents to take legal advice before starting Judicial Review proceedings.

As the Personal Budget includes the costs of all provision, as long as equipment, therapies and / or transport are detailed as a provision within either Sections F, G, H1 or H2 then it can be included within the Personal Budget.

The Personal Budget can only be used for what is catered for within the EHCP. Parents cannot use the Budget to fund support which is not specified within the EHCP. The Personal Budget cannot be used to pay for independent school fees.

Q: Physiotherapy is being placed in the Health section of the Education, Health and Care Plan (EHCP) – is this right?

The Education, Health and Care Plan (EHCP) is separated into the three areas: special education needs and provision; health needs and provision; and social care needs and provision. All needs and provision within the EHCP must stem from the child’s special educational needs and / or disabilities.

Each section of the EHCP should identify the child’s needs and provision must be made to cater for those needs.

Special education provision is defined by the Children and Families Act 2014 as being any education or support that is different from that typically available in school. If a health or social needs provision is given, but has the effect of training or educating the child, it is a special educational provision. We consider that in many cases physiotherapy meets the ordinary meaning of “training” and therefore is a special education provision.

Physiotherapy helps to restore movement and function for someone who is affected by injury, illness and / or disability. Children and young people with disabilities which have significant impact on their mobility will require Physiotherapy. A common example of such a condition is cerebral palsy.

Children with mobility difficulties will clearly have difficulties accessing education because of those difficulties. That makes those difficulties an educational need. They may also result in health and social care needs too. The difficulties should therefore be detailed in the educational need section (Section B) of the EHCP. All needs identified in Section B must have support in educational provision (Section F). Therefore, physiotherapy should be contained in Section F.

The difficulty is the source of funding. Typically, physiotherapy will be paid for by Clinical Commissioning Groups (i.e. health). This is why it will be seen within the Health section of an EHCP. The funding source, however, is not determinative when deciding which section to include the support in.

The reason that this is important is that, currently, only the education needs, provision and placement sections of the EHCP can be appealed to the SEND Tribunal.

Q: The local authority has issued a draft Education, Health and Care Plan (EHCP) whilst parents were away. Parents did not respond in time and are unhappy with the content of the final EHCP. Can anything be done other than appealing?

Before a final EHCP is issued, parents will be sent a draft EHCP. Parents have the opportunity to make comments about this draft within 15 days. If the local authority are informed in advance that parents are going to be away during that time, the timetable should be suspended until parents’ return. However, if no forewarning is given, it may be that the local authority will issue a final EHCP without hearing from parents.

If the local authority is given advance warning that parents will be away, but issue a final EHCP anyway, a complaint to the Local Government Ombudsman should be considered.

Once an EHCP is issued it is a binding legal document. Parents may contact the local authority to explain the situation and ask to negotiate with the local authority as if the EHCP were still in draft. However, it is important that parents are aware that their only formal remedy is an appeal and should not miss deadlines.

If the disagreement is relatively minor, and it is likely that the local authority would have made the changes had parents responded in time, then mediation should be explored.

Whilst negotiation and mediation are possible, as soon as a Final EHCP is issued, the only way to formally challenge the content is via an appeal to the Special Educational Needs and Disability Tribunal.

Q: Local authority has not carried out a full Education, Health and Care (EHC) needs assessment – what can parents do?

Before issuing an Education, Health and Care Plan (EHCP), the local authority must conduct an EHC needs assessment. This is a requirement when the child or young person is new into the system or when they are transferring from a Statement to an EHCP.

An EHC needs assessment is crucial as it informs the local authority of the child/young person’s needs and the provision necessary to cater for those needs. Without a complete EHC needs assessment, the EHCP is likely to be inadequate.

If the EHCP is issued without an EHC needs assessment, parents can complain to the local authority and then the Local Government Ombudsman (“LGO”) about a failure to comply with legal obligations. It may also be possible to apply to the High Court for an Order through Judicial Review proceedings. This would be to require that the local authority make the EHC needs assessment.

An application for Judicial Review can be very costly and, in most cases, it may be cheaper and quicker for parents to instruct their own experts. This is, of course, not a perfect solution because it is the local authority’s obligation to secure the advice.

It would be strongly advisable for parents to take legal advice before starting Judicial Review proceedings.

In theory, if parents have to secure independent advice and assessment, the costs of seeking that advice could be sought back via a complaint to the LGO.

If an EHCP has been issued and parents consider that the local authority did not complete an adequate EHC needs assessment, resulting in an EHCP that is incomplete and needing amendments, advice should be sought about an appeal to the Special Educational Needs and Disability Tribunal.

Q: The local authority has not issued a final EHCP yet and the young person is moving to post-16 education in September. They still do not know where they will be going to.

This year, the deadline to issue an EHCP for young people moving to post-16 education in September 2015 was 31 May 2015. That was, in fact, a Sunday. Some local authorities decided to issue by 29 May, others by 1 June 2015.

In any event, if a young person does not yet have an EHCP and is moving to post-16 placement in September, the local authority has breached guidance.

Practically, it may be that the local authority and parents are agreed on placement but that specific provision may not be completely agreed. If this is the case, it may be open to parents to ask that the local authority confirm that it considers that the placement is suitable and approach the post-16 placement to seek confirmation of a place.

If the young person misses any education as a result of a delayed issue of an EHCP, it may be possible to complain to the Local Government Ombudsman and seek compensation for loss of education.

It would be strongly advisable for parents to take legal advice before starting Judicial Review proceedings.

Q: Can parents ask the LA to ask for advice from their own professionals (Consultant, therapists etc) when carrying out the EHC needs assessment

In theory, yes.

The Special Educational Needs and Disability Regulations 2014 set out who the local authority should seek advice from during the EHC needs assessment.

Regulation 6 sets out that during the EHC needs assessment, the local authority should seek advice from any professional that the parent’s reasonably request. There is no clarification in terms of what “reasonably” means. However, if parents have one, or many, experts that have a working knowledge of the child or young person, it would seem reasonable for them to ask that that professional, rather than one with no knowledge of the case, provides advice.

This will be a case by case question and we would anticipate that in many cases, local authorities will refuse to use experts appointed by parents. This will be especially true for commonly retained experts like educational psychologists. However, if there is a genuine a long-standing relationship, it would seem reasonable to ask.

If the local authority refuses to use the expert that parents suggest, the remedies will be a complaint to the local authority and then Local Government Ombudsman. Parents may also think about an application for Judicial Review but should seek legal advice before embarking on this.

There is nothing to stop parents getting their own reports and submitting them with their own parental advice.

Q: Are children in Wales affected by the special educational needs changes

No – children living in Wales are still supported in line with the Education Act 1996. The Children and Families Act 2014 does not apply to Wales.

However, The Welsh Assembly Government has launched a White Paper (June 2014) proposing changes to special educational needs law. The changes are broadly in line with the Children and Families Act 2014 but the earliest that they could be implemented would be September 2016.

If implemented, the plan would be to introduce an Individual Development Plan (IDP) which would be issued for every child with special educational needs. The IDP will go to 25, much like the EHCP.

The IDP will include health and social care needs and provision, much like the EHCP.

Q: The Local Authority is issuing My Plans rather than Education, Health and Care Plans (EHCPs) – what’s the difference?

We have written about My Plans previously here and here.

In some local authority areas, it seems that the My Plan is being used as a barrier to accessing the Education, Health and Care Plan (EHCP). The two run in tandem, although because the My Plan is not enforceable or appealable, those children supported by a My Plan may be worse off than those with an EHCP.

On 4 June, we spoke with a few parents and professionals who had been issued with a My Plan which was their local authority’s equivalent of an EHCP. This means that the local authority is treating the My Plan as an EHCP, rather than an alternative. Those local authorities are confirming that the My Plan can be appealed and enforced in the same way as an EHCP.

Whilst this might seem semantic, it is important that parents check with their local authority that the My Plan they have received is a statutory document. As long as the local authority confirms that it considers that the My Plan is enforceable and appealable in the same way that an EHCP is then there is little difficulty. Parents should also consider approaching the Special Educational Needs and Disability Tribunal with the My Plan to make enquiries as to whether it would consider appeals regarding the My Plan.

If the local authority does not confirm that the My Plan is enforceable or appealable, parents should refuse to accept the My Plan as an alternative to the EHCP.

As an overall point, it is worth bearing in mind that the law refers to the highest level of support as an Education, Health and Care Plan. It is not called a My Plan. We see no benefit to renaming the EHCP to My Plan. It simply causes confusion as some parents refer to EHCPs, others to My Plans and the SEND Tribunal will have to try to understand the effect of these differently-named documents.

We would advise that if a child qualifies for an EHCP, they should be issued with an EHCP. That is what the law requires.