Hayley Mason, Senior Solicitor and Business Development Lead at SEN Legal Ltd, on the steps to an effective Education and Health Care Plan (EHC)...
Many parents will have seen Nadhim Zahawi MP – the current Children and Families Minister, talking on BBC Breakfast on 30th March 2018 about how the SEND reforms are a ‘huge success’ and claiming that he hasn’t seen an EHC Plan that is not worth the paper it is written on. Many parents will have also been left scratching their heads as to why Mr Zahawi’s experience is so different to their own – claiming that he is living in a parallel universe.
When pressed on the current difficulties faced by parents of children/young persons with special educational needs (SEN) – in terms of delays, lack of funding and limited special educational provision being provided, Mr Zahawi stated that the government will “continue to look at the statistics to understand why a handful of Local Authorities are having problems.”
It did not take long before vast numbers of parents took to social media to air their concerns – calling for an audit of the data supplied and highlighting the difficulties each of them have faced in their respective Local Authority areas. These personal accounts covered the length and breadth of the UK.
Whilst the government have pledged to invest £6 billion in special educational needs and disabilities by 2018/19, the question remains as to the usefulness of such funding if the government’s basic understanding of the difficulties parents face is so wholly misunderstood.
One of the issues that Mr Nahawi did recognise was that the rate of children with SEN being excluded from mainstream school is disproportionately high. He sought to reassure parents by announcing a set of reviews which will look into why this is. My question therefore is why can’t Mr Nahawi put 2 + 2 together to get 4?
Children with ‘poor’ EHC Plans, which do not specify the child’s specific special educational needs and do not quantify the proper amount of provision that those needs require, often result in the child’s genuine difficulties being wrongly categorised as ‘bad behaviour’ for which they are excluded. This appears to be because mainstream schools do not generally have the resources or the funding to provide above the level of provision specified in the child’s EHC Plan and the level of disruption is easier remedied by way of exclusion (whether that exclusion is lawful or not is a whole other matter).
Every child with SEN is entitled to a properly specified and quantified EHC Plan so that it is visible at first glance of the EHC Plan by any professional, what that child’s specific needs are and how best to support them. The special educational provision detailed should be what the child’s SEN require – not simply what their Local Authority is willing to provide. There is no ‘if we afford it’ clause in any of the legislation.
Mr Nahawi proudly states “I have got EHC Plans on my desk which I would certainly be proud of if that was my child” but is the minister too far removed to know what a ‘good’ EHC Plan looks like?
Far too many parents are led to believe they have a ‘good’ EHC Plan because they are comparing theirs against another child’s, who is often in the same Local Authority – constrained by that particular Local Authority’s policy or funding guidelines. For example, you may think that your child has a ‘good’ EHC Plan if Section F states that your child requires 1:1 support and no other child has 1:1 support stated in their EHC Plan. The real question is what does 1:1 support really mean? Effectively nothing.
Written in this way, 1:1 support could be from the class teacher, teaching assistant, midday supervisor or even a peer. It could be for 2 minutes per week, 2 hours per week or 35 hours per week including structured and unstructured times (i.e. lunch and break times). Without specification and quantification, EHC Plans are open to interpretation by the reader as to the amount of provision to be provided and when considering budget cuts, what is provided is often towards the lower end. The amount of provision provided can vary hugely from one Local Authority to another.
Some real life but ‘poor’ examples of EHC Plans I have seen include:
- No reference to a diagnosis of Autism, despite the child having the diagnosis for many years;
- Special educational provision being included in Sections C, D, G, H1 or H2 rather than Section F which means that the provision is not legally enforceable;
- Historical and outdated information being included, such as references to the child’s nursery setting which they have not attended for ten years plus;
- Wording such as ‘access to,’ ‘opportunities for’ and ‘to provide’; and
- Therapy input only being provided by ‘school staff.’
Mr Nahawi claims that “no one has said to me that the EHC plans aren’t worth the paper they’re written on” – I see many every day in my line of work and would be happy to tell him so myself.
Here at SEN Legal, we specialise in advising parents and securing the best possible outcomes and provision for their children, as defined by the child’s particular special educational needs and not on the basis of what the Local Authority are willing to provide. If you have any doubt about the legality of your child’s EHC Plan, or whether it is legally ‘good’ or not, we offer an EHCP Health Check service for a one-off fee of just £300 (+VAT).
The good news is EHC Plans are relatively easily amended to something much more specific, quantified and useful going forward – you just need to know where to look.
For more information about SEN Legal Ltd, visit www.senlegal.co.uk