Debunking Myths Surrounding Special Educational Needs

Portrait of Emma Davies
Author:
Emma Davies
Senior Associate Lawyer, Education and Community Care
Date:
08/02/2022

There’s a lot of misleading information out there that can lead you astray when trying to navigate the Education, Health and Care Plan (EHCP) process. This can make it even harder for children and young people to get the support they need in education.

We've put together a list of the most common myths we've heard from our clients and the correct answers to guide you through your decisions. For more information, get in touch with our Education Team.

Call us on 0808 239 9764 or request a callback

You need an educational psychology report before making a request for an Education, Health and Care Needs Assessment (EHCNA).

This is not the case. Although an assessment may sometimes take place before the process starts, the whole point of an EHCNA is to do just that, assess. Local Authorities have to obtain advice from an educational psychologist as part of an EHCNA, together with medical, school, parent, child/young person, and social care advice so you do not need this in advance.

Deadlines Don’t Matter

Deadlines in relation to the EHCP process must be followed. For example, the Local Authority must usually issue a decision whether to complete an EHCNA within six weeks of receiving the request. There are only limited exceptions to this, and if time frames are not followed, it may be possible to take formal legal action to progress the matter. If you are told that delays are ok, or you are given excuses as to why decisions are not made on time, seek advice. In particular, covid-19 is no longer a legal reason for delay. Although some requirements were relaxed earlier in the pandemic, this is no longer the case.

You Need a Diagnosis

Again, this is not correct. While diagnoses can sometimes be helpful, Local Authorities should consider the child or young person’s individual needs and how these impact on their education and not just whether they have a diagnosis or not.

Medical Conditions Don’t count

Although some children with medical conditions do not need additional support in school, if the condition impacts directly on their education, it can become a special educational need, and an EHCP may be necessary as a result.

The School Needs to Make a Request for Assessment

Although schools are able to ask for an EHCNA, parents and young people themselves are able to make a request, which can reduce delay in the process.

The Test for an EHCNA is High so you Will not get one

The legal test for assessment is actually low, and essentially means that the Local Authority should agree to complete an EHCNA for a child or young person who may have special educational needs that might require an EHCP. Local Authorities will often refuse to assess on the basis that the child or young person’s needs are such that they do not need an EHCP, but the argument against this is that the Local Authority cannot know whether an EHCP is needed without completing a full assessment.

You are too Young or old for an EHCP

EHCPs can be issued from birth and potentially continue to the age of 25, so do not be put off by this type of comment.

EHCPs do not Need Detail

This is simply not true. The law says that EHCPs must be specific and contain full details of the provision the child or young person will receive. This needs to include what the provision is, who will deliver it, and any relevant qualifications, how often and how long sessions will be and whether they will be delivered on an individual, small group or whole class basis. If the EHCP is not detailed enough, it is unlikely there would be any legal action that could be taken to enforce the contents, if support is not provided. Therefore, you may need to consider making an appeal to the Special Educational Needs and Disability (SEND) Tribunal to ask that the EHCP is amended.

Provision in an EHCP can be Restricted to What the NHS can Provide

An EHCP should contain what each individual needs to support their education. If the NHS are not able to provide what is needed, then this may have to be commissioned by the Local Authority privately. It is important to note that the Local Authority only have to arrange what is in the EHCP.

You Cannot ask for an Independent/Residential Placement in an EHCP

This is absolutely not the case. Parents and young people can ask for any placement they wish, though there are occasions when the Local Authority can refuse to name it in an EHCP. However, this does not mean that you cannot ask, and make an appeal to the SEND Tribunal if you are not happy with the placement in the final EHCP, or its contents. Do not be put off by looking at all options when considering placement.

Costs of Social Care and Therapies do not Have to be Taken Into Account

When considering requests for placements, Local Authorities are allowed to look at costs in certain circumstances. This is usually when a parent asks for an independent or residential placement and the Local Authority decide there is a cheaper, suitable alternative. However, when looking at costs, they have to include everything that would be needed at that placement. For instance, if a young person wants to attend a specialist residential placement, the Local Authority should take into account the social care costs if they went to a day placement but were provided with supported living.

There is Nothing I can do About Social Care

Appeals to the tribunal can now include a request for recommendations to the social care and health sections of an EHCP. The tribunal cannot order amendments, but there may be action that can be taken if a Local Authority refuse to accept the tribunal’s recommendations.

You Cannot get Transport for an Independent School or College

This is certainly not the case for those under 16 and transport will usually depend on whether the school is named as the closest suitable school, in which case transport should usually be arranged. There are occasions when a school is named on parental preference, with agreement that the parents will fund transport. However, families should be wary of being persuaded to do this, and an appeal to the tribunal to ask that the placement is named on the basis of suitability may well need to be made.

What can I do?

In many circumstances it will be appropriate to make an appeal to the Special Educational Needs and Disability Tribunal against the contents of an EHCP, or a decision made as part of the process. However, if a Local Authority is acting unlawfully, other action may be more suitable.

If any of the above apply to you, or you have other concerns about what you are being told, contact our team of specialist Education Lawyers, who have vast experience in advising families and assisting with appeals and actions against Local Authorities.

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