If your child has been receiving extra support for their special educational needs in school for a while, but doesn't seem to be making progress, the local authority can be asked to carry out an Education, Health and Care (EHC) needs assessment. This may lead to your child getting an EHC Plan.
* From 2014, Statements of SEN are being replaced by Education, Health and Care (EHC) Plans or EHCPs; existing Statements will gradually be transferred to EHC Plans over the next three years.
Parents may worry that they are not doing all they can for their child if they don’t to get an EHCP for them. You may have been told by a well-meaning person that it is something you ‘must’ do, perhaps because your child has a particular diagnosis. So before you read any further we’ll just remind you that most children with SEN are supported without needing an EHCP. Children can get significant amounts of help on SEN Support at school or pre-school. They do not need an EHCP to get help from PRESENS or the LA learning support services or to get special arrangements for taking exams. And in most cases an EHCP does not bring extra funding to the school for that child. On the other hand the process of EHC assessment can shine a light on a child’s needs and bring together expert advice on this. An EHCP will set out their needs and the provision that should meet those needs in a document that has some legal weight. Your child will need an EHCP to go to a special school or facility, or to get a major support package if that is what they need to be included in mainstream. So there are some children for whom an EHCP will be appropriate.
If your child is under five, you may want to try to get an EHCP if they have severe and complex needs, if you think they should go to a special school for reception year, or if they require specialist early intervention that cannot be provided in their current setting.
If your child is over five, you may want to try to get an EHCP if they have been getting help on SEN Support and don’t seem to be making reasonable progress, if they are being excluded or are distressed about school or you feel they need to move to a special school or facility.
When the LA receives the request, you will be given the name of a casework officer in the SEN team who will be responsible for your child’s case. They will be the key point of contact for you. However they do not make the decisions. Decisions are made on the recommendation of an SEN panel that meets weekly. The aim of the panel is to make sure the LA make fair and consistent decisions. Panel members include a manager from the SEN team, a senior educational psychologist, representatives from schools and health, and a parent.
There are strict time limits about assessment and producing EHC Plans. The whole process from request to final plan should take no more than 20 weeks. The first of these time limits is that the LA has up to six weeks to make their decision about whether to go ahead with an assessment.
If you made the request they will contact the school for information. If the school made the request you will get a letter that asks for your views. You need to make sure that the LA are sent enough information at this point to make a sound decision. At this stage they will only be looking at the information sent by you and the school. The legal test here is whether “it may be necessary for special educational provision to be made for the child in accordance with an EHC plan.” So the LA will consider whether all possible support has been given on SEN Support. We explained in SEN – the basics that schools can give up to £6000 worth of SEN help from their own budget. The panel may well turn down a request for assessment if they think the school is not giving this much help, because it could be that the child wouldn’t need an EHCP if the school did all they should.
By the end of the six weeks the LA will send you their decision. If they decide not to assess, you have a right of appeal. We have a section later about appeals to the SEN Tribunal, but before doing this you should talk to your school and your casework officer and get advice from Amaze. Often there is room for negotiation at this point. For example the LA may feel the school have not tried everything because the information the school gave was not clear enough. Or there may be medical evidence that the LA did not know about.
If they do decide to assess, the LA have eight to ten weeks in which to carry out the assessment and either issue a draft plan or tell you they have decided not to issue one. The aim of the assessment is to look at the outcomes that will enable the child to progress in their learning and towards adult life, then work out what education, health and social care provision is needed for the child to achieve these outcomes. To make the assessment the LA must ask for advice and information from: parents (or young people over 16); the school or other education setting; health professionals involved with the child; an educational psychologist; social care in some cases; and anyone else you reasonably request. If you have additional reports about your child, you can attach them as part of your parental advice and information to make sure they are considered. If there are up to date reports about your child, the LA should use these and not ask for new ones.
If the LA decides an EHCP is not needed they must write to you by week 16 after the request, explaining the reasons for their decision and your right of appeal against this decision. They should also provide written feedback about the information gathered during the assessment, including all the reports, as this can be useful for you and the school.
If the LA decides an EHCP is required, they must send you a draft of the plan, together with copies of all the reports they have received from everyone involved. There is no fixed time limit for this but it should be by about week 14 to be sure to get the final plan complete by week 20. Each LA can choose the format for their EHCP but the law sets out the sections which every plan must include.
The proposed plan will not refer to any school by name, as you have the right to request a particular school or type of school. The LA must tell you where to find information about the schools and colleges that are available for the child to attend. We explain more about this below in the section ‘What is the parent’s role in EHC assessments?’
When the proposed plan arrives, you have 15 days to think about it and say if you’re happy with it or not. It is very important that you make use of this opportunity to check the plan carefully. Does it describe your child accurately? Is all the support suggested in the reports mentioned in the plan? Is it specific enough that any school could read it and know what your child needs? Are you happy to agree the Personal Budget in the plan if you asked for one? (See below.) At this point, you have the right to a meeting to discuss the draft plan with an LA officer. Usually, parents only ask for a meeting if they have serious concerns with the plan. If you want to make minor changes you should be able to sort these out over the phone or by email. If you want help understanding and responding to the draft plan, or thinking about what to put as your preferred school, Amaze can offer impartial advice.
By week 20 after the original request, the LA should issue the final EHCP. This will name a school and the amount and arrangements for the Personal Budget if you opted for this. If you disagree with the final plan you have a right of appeal about some sections at this point: the special educational needs, special educational provision and the school placement.it.
The idea of EHC Plans is that the parent and child or young person’s views and aspirations should be at the heart of the plan and shape the outcomes set in the plan. So you and your child should be closely involved all through the assessment.
You have the right to be with your child under 16 at all interviews, medical tests or any other test during the assessment. Sometimes a professional may wish to observe your child in the classroom, or talk to them on their own, but they should tell you that they are doing this. You also have the right to ask the local LA to get a report from anyone that is reasonable. Once the LA has agreed to write a plan, you have the right to ask about a Personal Budget. And you have the right to say which school you would prefer your child to go to, although the LA does not always agree with your choice of school.
To find out more about Personal Budgets and issues about school choice call Amaze for advice or download the Education chapter of our Through the Maze 2014 handbook
- Have a positive attitude!
- Be polite but persistent.
- Involve yourself as much as you can with the professionals dealing with your case. Don’t be afraid of them, they are normal people not to be avoided. Tackle them cheerfully.
- Always get the name/address of the people dealing with the EHCP or writing reports on your child./li>
- Make sure you are sent a copy of each advice or report. Keep a file just for these.
- If you do anything by phone, always take the person’s name, date of call and short notes of what’s said. Keep a notebook handy for this. Make sure you ask for confirmation in writing when you are told something significant on the phone.
- Make use of email if you have it as it saves making repeated calls.
- Get lots of help and advice – ask Amaze about Independent Support. Try other parents too.
- Don’t forget it’s your child; you do some of the choosing; you know your child better than anyone
- Be flexible and realistic. Consider all the options. But be ready to stick to your guns if you need to.
Your child’s EHCP must be reviewed by the LA every 12 months as a minimum. You should get at least two weeks’ notice of the meeting and you can take someone along with you to these meetings. Your child should also be actively involved in the review process in a way that suits them. The meeting is usually held at the school. The other people who should be invited are the school, the LA casework officer and a representative from both health and social care. Other people involved in working with your child can be asked too. Not everyone will come to every meeting but they should all (including you as parent) be asked for their advice and information about the child before the meeting and these reports should be sent to you two weeks before the meeting. It’s important that you have the chance to read all the reports beforehand so that you can think about what you would like to happen at the meeting. If you don’t get them in enough time you can ask to postpone the meeting.
In most cases the school will arrange the annual review meeting and report to the LA afterwards so the LA can complete the annual review process. The meeting must focus on your child’s progress towards meeting the outcomes in the EHC plan. Are any changes needed in the support they get to help them achieve those outcomes? Do the outcomes themselves need updating? Within two weeks of the meeting the school must send a report to the LA. You should get a copy. Check it over to make sure it matches what was said or agreed at the meeting. Within four weeks, the LA must decide on one of three things:
- To continue with the existing EHCP
- To amend or change the EHCP
- To withdraw or ‘cease to maintain’ the EHCP
If the LA decides to change the EHCP, there is a process with time limits that allow for you to comment and appeal the decision if you can’t agree. It is important to realise that an EHCP can only be changed through the annual review process. If they decide to withdraw the EHCP you can appeal if you disagree. Parents can also appeal if the LA decides not to amend the plan after the annual review and you think it should be amended.
Transfer between phases of education
When your child is due to move from one phase of education to the next (e.g. pre-school to school, primary to secondary, secondary to further education) there are special rules. The annual review must happen in enough time to plan ahead for the move. The EHCP must be amended by the 15th February of the year the child is due to move if this is into or between schools. If they are moving on to FE, the deadline is 31st March.
The amended EHCP must name the new school or college. The aim is to allow everyone to plan for a smooth transfer. So for a child coming to the end of primary school, the annual review in Year 5 should talk about what they will need at secondary so you have time to look at the options. Then a review early in Year 6 should pull this together for the LA to complete the amended EHCP by 15th February. This leaves plenty of time for liaison between the primary and secondary school, visits, organising staffing or equipment, etc. It also allows time for an appeal if you are unhappy, and for this to be resolved before September.
Preparing for adulthood in annual reviews
From Year 9 onwards each annual review should also focus on preparing for adulthood and look ahead at what will help the young person move towards things like employment and independent living.
This is such an important stage for parents and young people and we discuss transition planning in more depth on our transition planning page. On that page you can also download chapters about transition planning from our handbook for parents of young people (aged 14+), Through the Next Maze. Or if you’d like your own copy of our handbook, you can request a copy of ‘Through the Next Maze’ here.
Review or re-assessment?
If you feel your child’s EHCP needs changes you will usually be able to address this through an annual review. But occasionally there may be circumstances when parents think their child needs a whole new EHC assessment, perhaps because they and the LA are not seeing the child’s needs in the same way. If you or the school request re-assessment the LA have 15 days to say whether or not they agree. If they refuse you have a right of appeal. If they go ahead the process and timescales are the same as for initial assessments.
We have mentioned a few points at which parents have a right of appeal to the Special Educational Needs and Disability First Tier Tribunal, (sometimes known as SENDIST). This section explains appeals in more detail, but before we start we should say that Brighton & Hove City Council does not have many appeals compared with many other LAs, and if you don’t agree with the LA it is usually worth having at least one more try at resolving things locally. You can always ask for a meeting with your casework officer and the assessment manager. Ask Amaze for support with this. It is part of our role as the local SEND Information, Advice and Support Service. There is also a disagreement resolution process and the option of independent mediation. The parts of an EHCP that relate to your child’s health and social care needs cannot be considered by the tribunal, but you can still use disagreement resolution and/or mediation if you are unhappy with these, and then use the relevant complaints procedures if necessary. Read more about this in the downloadable chapter of our handbook ‘Making systems work for you’.
When you do have a right of appeal, making use of disagreement resolution and mediation does not stop you also making an appeal, but the aim is to resolve some disagreements that might otherwise have ended up at tribunal. So before you can lodge an appeal to the tribunal you have to prove that you have discussed the possibility of mediation with a mediation adviser. But you don’t have to agree to mediation following this discussion. If you think this sounds confusing ask Amaze to explain.
If you and the LA can’t agree, you may decide you have to appeal. The tribunal is an independent body that hears parents’ appeals against LA decisions on statutory assessments and EHCPs. It also deals with some claims of unlawful disability discrimination in education. There are strict timetables for making an appeal and these differ for SEN appeals and disability discrimination claims. It’s important to get advice as early as possible if you are considering appealing.
You can appeal to the SEN first tier tribunal if:
- the LA refuses to assess your child after you or the school have requested this;
- the LA decides an EHCP is not needed after assessing your child;
- you disagree with the EHCP sections that describe your child’s SEN, the special educational provision specified or the school or type of school named;
- you disagree with an amendment to any of these sections;
- the LA refuse to re-assess your child;
- the LA decide not to amend the EHCP after review or re-assessment;
- the LA decides to stop maintaining the EHCP.
In these cases, the tribunal can change the LA’s decision. Going to tribunal is a stressful experience and not to be undertaken lightly. It is the last resort for parents who have been unable to resolve matters with the LA in any other way. Parents who decide to go to appeal need to have energy, be well prepared and have access to the best possible advice and support.
While the tribunal encourages parents to represent themselves at appeals and will take care to treat you fairly, many have found it quite a daunting experience. If you cannot find someone able to help you prepare your appeal, you may decide to think about instructing a solicitor but this can be costly. If you take this route make sure they have a specialism in education law. You may also qualify for free legal assistance so be sure to ask about this, and the fees, before going ahead.
If you feel your child has been discriminated against on the grounds of their disability, you should start by complaining to the head teacher and governing body of the school. If this does not resolve the matter, you can make a claim of unlawful discrimination against a school on behalf of your child to SENDIST. Some claims of unlawful discrimination will go to admissions appeal panels or, for exclusions, to independent appeals panels. Download our ‘Making systems work for you’ chapter from Through the Maze or read more about disability discrimination here. Or visit the government’s website for SENDIST.
If your child was assessed under the old system and has a Statement of SEN this remains in force despite the law changing. All the details in their Statement and the rights attached to it carry on unchanged until their Statement ends, either because they transfer to an Education, Health and Care Plan under the new system or they finish their education.
Rights while you have a Statement of SEN
The LA continues to be responsible for making sure the special educational provision set out in your child’s Statement is delivered. Your child’s Statement must still be reviewed annually as before. The process for reviewing Statements and EHCPs is very similar so schools will approach them in much the same way. Nothing changes in terms of who is invited to give their views or attend. You should still get the papers two weeks beforehand. The meeting should look at your child’s progress over the year and go over the Statement. If your child is in Year 9 or 10 the meeting should include looking ahead at the transition from school to college and beyond that to preparing for adulthood.
After the annual review meeting a report must go to the LA and as a result of any recommendations that are made at the meeting, the LA will decide on one of three things:
- to continue with the existing Statement.
- to amend or change the Statement.
- to withdraw or ‘cease to maintain’ the Statement.
If the LA decides to change the Statement, they will give you a proposed amended Statement version and follow the same procedures and timescales used when producing a new Statement, which means you have the chance to put your views and appeal the decision if you can’t agree. If major changes are needed, you and the LA could agree to transfer to an EHC plan instead. If the LA decides to withdraw the Statement you can appeal if you disagree. Parents can also appeal if the LA decides not to amend the Statement after the annual review and you think it should be amended.
Transferring from a Statement of SEN to an EHC plan
The government has made it clear that they expect more or less the same children to get EHC Plans as got Statements under the old system. The legal test for whether you need an EHCP is the same as it was for a Statement, in effect. This means that nearly all children with a Statement will need to be transferred onto an EHC plan. The exception will be children whose Statements cease. This can be because they have made so much progress they no longer need a Statement or an EHC plan. This is unusual but it does happen. You can appeal if you disagree. The more common reason will be young people who are leaving education in the next couple of years. This will normally be a natural and positive step onwards for them, but if you think their education needs to continue you may be able to request an EHC assessment at this point. Ask Amaze for advice if you are thinking about this.
When you think about the numbers involved it is clear that it would be an impossible task to transfer everyone at once or even in the space of one year, so local authorities have been given a few years to do it gradually. All Statements should have transferred by 2018. The LA habe published a plan about which groups of Statements they will transfer each year and you can download it from this page on their website at www.brighton-hove.gov.uk/content/children-and-education/brighton-hoves-local-offer/supporting-children-and-young-people
The process of transfer should begin with a transition review, a bit like an annual review but it will trigger the start of the EHC assessment. As there is no need for the first six weeks when the LA would decide whether to assess or not, they only have 14 weeks from the date of this meeting to finalise an EHC Plan instead of 20. It is hoped that the assessment will be more straightforward because there will already be plenty of advice and information about the child from the Statement. But if the reports on your child are quite out of date new ones should be collected. And as a parent you will want to be sure that nothing of value in the Statement fails to find its way into the EHCP, so you need to approach the transfer with the same care and attention as when they first got a Statement. You can use Amaze for information, advice and support at any time. You may also be able to have an Independent Supporter.
Some parents have expressed real anxieties about the transfer from Statements to EHC plans but the idea of the SEND changes was to improve on the old system. In practice you should find that you are more involved than you were in the Statement and the new EHC plan will be more comprehensive and focus more on positive outcomes for your child.