EHCP Working Document Process Explained

Author:
Emma Davies
Associate, Chartered Legal Executive, Education and Community Care
Date:
25/02/2019

The EHCP working document paperwork process is an important part of any appeal to the Special Educational Needs and Disability (SEND) Tribunal against the contents of an Education, Health and Care Plan (EHCP), for parents and young people in England, or statements of Special Educational Needs (SEN), for parents in Wales.

An EHCP working document is used for negotiation between the parents or young person (for over-16s in England) and the Local Authority so that as many agreements can be made before the hearing, or in some instances so that full agreement can be reached.

For initial advice call our Education Solicitors and SEN Lawyers.

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The EHCP Working Document

The EHCP working document is essentially an electronic Microsoft Word version of the original EHCP/statement, on which both the parents or young person and the Local Authority propose amendments.

The SEND Tribunal uses a specific key, so that the contents of the original EHCP/statement, the agreed amendments, and any outstanding issues are clear. The fonts that should be used are:

Normal type

Original EHC plan

Underlined type/ Underlined strikethrough

Amendments agreed by both parties

Bold type

Parents’ proposed amendments

Bold strikethrough

Parents’ proposed deletions

Italic type

Local Authority proposed amendments

Italic strikethrough

Local Authority proposed deletions

The Local Authority must send an initial version of the EHCP working document when sending their initial response to the appeal. Although the Local Authority should propose any amendments at this stage, in practice it rarely happens, and parents or young people (or their representative if they have one) often have to propose the amendments they are seeking first.

When drafting an EHCP working document, it’s important to check that any provision you’re asking to be included is very detailed. You should also ensure that any support already contained in the EHCP is properly specified, and if it isn’t, ask for it to be amended. This is because EHCPs and statements are legal documents and should the support in section F or part 3 not be arranged by the Local Authority, it may be possible to take formal legal action to insist that they do so.

However, it needs to be absolutely clear as to the provision the child or young person will receive, so the vague wording often found in EHCPs and statements isn’t sufficient to take legal action.

The Level of Detail that is Necessary is:

  • Exactly what the support is, for example, direct speech and language therapy
  • How often and how long sessions should last
  • Who will deliver the support, their qualifications and experience
  • Whether the support is on an individual, small group or whole class basis

A common example is 1:1 support in school, which could say:

“Child will receive 25 hours of 1:1 support per week from a teaching assistant who is qualified and experienced in working with children who have Autistic Spectrum Disorder.”

Unfortunately, in our experience as Education Solicitors and SEN Lawyers, EHCPs and statements rarely have the level of detail required, which is why it’s so important to check working documents carefully.

The EHCP working document should be sent to the Local Authority by email and remain in Microsoft Word format so that both parties can make amendments during the appeal process. The Local Authority should consider any proposals and either show that they are agreed by changing the format to underlined, or leave proposals that aren’t agreed in bold type.

The Local Authority may also make suggestions of their own in italics. Unfortunately, not all Local Authorities use the key as set out by the SEND Tribunal, and it may be necessary to ask that they amend the document to match.

It’s important to be sure that any agreements are clear, so that the SEND Tribunal is aware of any outstanding issues, but more importantly so you know what has been agreed, and what the Local Authority don’t agree to add or remove from the EHCP or statement at that stage.

When you receive the EHCP working document from the Local Authority, you need to consider it carefully to ensure that any amendments you propose remain in the document if not agreed. This is because some Local Authorities simply remove provision they don’t agree to, rather than leaving proposals in bold as per the key. You should also consider any proposals by the Local Authority and mark as agreed if you’re happy to do so.

The EHCP working document will then go back and forth until either full agreement is reached, which means that the appeal can be withdrawn by consent and the hearing won’t be necessary, or you come to a point where no further agreement can be made, and the SEND Tribunal will decide what will be included in the EHCP or statement.

How Simpson Millar Can Help You

If you’re about to start an appeal with the SEND Tribunal, or have an appeal that is ongoing, you can contact our Education Solicitors and SEN Lawyers for legal advice on the contents of your child’s EHCP or statement, and how to proceed with the appeal.

We can advise you on the lawfulness of an Education, Health and Care Plan and statements, and can guide you through the whole appeal process.

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