Reviewing The EHCP System – 7 Problems Facing Local Authorities
The Law Of… Fixing A Struggling System
Introduced in 2014, Education, Health and Care Plans (EHCPs) revolutionised how support is given to children and young people with special educational needs and/or disabilities (SEND).
3 years on, the Local Government and Social Care Ombudsman (LGO) is investigating how Local Authorities are coping with the EHCP system and transferring Statements of SEN to EHCPs.
Samantha Hale, Associate in Education Law and Community Care, takes a look at the Ombudsman's report on its first 100 investigations and what this means for families.
EHCPs – A More Holistic Form Of Support
For many children and young people with SEND, EHCPs are life-changing.
Replacing Statements of SEN (SSEN), EHCPs document the educational, health and social care needs that a child or young person up to the age of 25 has and what provisions will be put in place to meet those needs.
Local Authorities have a duty to make sure that children and young people with SSEN and EHCPs are getting the support outlined in their plans, but the LGO's report has shown that this isn't the case.
7 Areas Where Councils Are Struggling
The impact that this is having on families is all too clear.
Complaints and enquiries made to the LGO by families doubled between 2014/2015 – 2015/2016. The report also confirms that in 80% of the complaints investigated the Local Authorities are at fault, which exceeds the average of 53%.
Although the LGO's investigation is ongoing, it's identified 7 areas in which Local Authorities are struggling. This includes:
- Delays in issuing EHCPs and transferring students from Statements of SEN to EHCPs
- Problems with gathering the evidence needed to inform the EHC assessment
- Failing to hold meetings and transfer reviews correctly
- A lack of forward planning when it comes to key phase transfers
- Problems with making decisions about placements and provisions in new EHCPs
- Failing to follow the correct process when it comes to the use of panels in decision-making
- Failing to name a school placement in a final EHCP
Delays In Issuing EHCPs And Transferring SSEN To EHCPs
A common complaint made to the LGO is over delays in issuing EHCPs on time. This has meant that some families have waited for well over a year for a plan.
When EHCPs aren't delivered on time and there are delays in transferring a SSEN to an EHCP, this puts children and young people at risk of:
- Not receiving the appropriate education
- Having fewer choices when it comes to placements
- Facing a slower appeal to the SEND Tribunal, if there's a dispute
If your authority hasn't delivered your child's EHCP on time, there's a danger they could miss out on their education. Our Education Law team can help prevent this from taking its toll on your child – get in touch with us as soon as possible.
Problems With Gathering Evidence Needed For The EHC Assessment
When a new request is made for an EHCP or someone is being transferred to an EHCP, an EHC Needs Assessment (ECHNA) should be carried out by the Local Authority.
According to the SEND code of practice, Local Authorities should discuss what advice is required for a full ECHNA to take place with the parents or young person. But, this doesn't appear to be happening at the right stage or even at all.
The LGO has found that some councils:
- Haven't been getting professional advice within the 6-week time frame
- Are failing to give clear instructions to professionals – this means that any advice they receive doesn't have the right level of detail to create an accurate EHCP
- Are unaware that they are responsible for gathering evidence, and have sometimes wrongly told schools or families to do this
- Are confused about how social care should be included in an EHCP
Failing To Hold Meetings And Transfer Reviews Correctly
Local Authorities have a duty to involve children, young people and parents in the processes of creating an EHCP and transferring a child or young person to an EHCP.
So far, the LGO has discovered that councils haven't been sticking to their obligations. Instead, they have:
- Asked schools to hold annual review meetings and used this as the transfer meeting, in spite of a Local Authority officer being absent
- Informed families at the start of the academic term that their annual review meeting will be used for EHC transfers but then not proceeding with the transfer
- Discovered at the end of the EHC process that a meeting hasn't been held and put pressure on parents to attend one at short notice
- Failed to think about whether the format of the annual review is the best way of allowing a child or young person to participate in the process
No Forward Planning When It Comes To Key Phase Transfers
A lack of forward planning for key phase transfers is yet another area where authorities are struggling.
Key phase transfers happen when a child with SEND moves from primary to secondary school or secondary school to college. Once an authority is aware that a child is reaching one of these stages, it has to ensure there's enough time for it to complete the transfer review and for parents to appeal against the contents if necessary.
Authorities are failing to consistently:
- Use annual review meetings as transfer meetings
- Consider whether more evidence is needed at an early stage in the process
- Allow enough time for the process to be completed before the deadline
Problems With Decision Making About Placements And Provisions In New EHCPs
After an EHCNA, parents or families can make requests for personal budgets and ask for a specific school, college or institution to be named once the draft EHCP is issued.
Discussions around school placements, according to the LGO, are happening too late in the process. This could result in disagreements over placements, appeals against the Local Authority's decision, and families missing out on the chance to consider having a personal budget.
If you're unsure about how to apply for a personal budget or don't think the budget you've been given covers the costs of your child's provision our Education Law experts can advise you on what steps to take.
Failing To Follow The Correct Process When Using Panels In Decision-Making
Panels are being used more and more to help make decisions about SEN placements, but the LGO has found that sometimes panels:
- Don't inform families about who is making the decision in their case (whether it's the SEN officer or the panel)
- Make decisions about placements without discussing them with the families
- Don't explain the reasons behind their decisions
- Reject placements that parents have chosen as their preferred option without considering whether there is actually any unreasonable cost to the public
- Make suggestions on placements that don't take into account the professional advice given in EHCNAs
- Delay considering cases, meaning that EHCPs are given to children and young people late
Failing To Name A School Placement In An EHCP
Worryingly, the LGO has reported seeing cases where Local Authorities haven't named school or college placements in EHCPs.
One of the reasons behind this trend is that authorities are leaving it too late to discuss placements with schools and by the time this does take place, places are often filled.
Some authorities are also issuing final EHCPs with either only a type of placement named or not even naming placements, which can lead to a child being out of education.
Authorities have a duty to secure the placement that is named in an EHCP, and ensure that no children are left out of education.
Samantha comments on the findings of the report:
"Unfortunately the report highlights the issues our Education team sees with Local Authorities' implementation of the EHCP system on a daily basis."
"The report is, however, encouraging for anyone who is considering making a complaint to the Ombudsman. But, this may not be the only option available to challenge the Local Authority and depending on the nature of the complaint there may be grounds to challenge it legally."
"Unfortunately, you cannot pursue a legal challenge if you have made a complaint to the Ombudsman and vice versa. I recommend that anyone who is considering making a complaint speaks to our Education team first, who can advise you on what would be the most appropriate way for you to challenge the Local Authority."
"You can get in touch with our team by calling the number below or filling out our enquiry form."