Episode 6: EHCPs: The Basics

This is the first of two podcasts with Hannah Adams, Associate Solicitor and Head of Special Educational Needs at Shentons Solicitors, who has personal experience of the EHCP process as a Mum and who also helps parents navigate the system as a solicitor. 

In this first podcast, Hannah explains the basics of what an Education, Health & Care Plan (EHCP) is, who is entitled to one, who can apply, what can be included and what you can do if school is not following the plan.

Keep an eye out for the second podcast coming up soon, in which Hannah will discuss the  appeal process for those who either have had their request for an EHCP turned down, or who don't believe the contents of the plan are meeting their child's needs.

Chapters

• 0:00 Intro to Hannah & the role of an SEN Solicitor
• 4:54 What is an EHCP?
• 8:31 What are the legally binding sections of the EHCP?
• 9:16 What age can you apply for an EHCP?
• 12:53 What qualifies a child to be given an EHCP?
• 16:47 Who can make the application for an EHCP?
• 21:44 What are examples of provisions that could be in an EHCP?
• 23:35 Do schools have to follow the EHCP?

Transcript

Andrea: 0:06

Hello everyone and welcome to this episode of Peeps in a podcast. For those of you who haven't listened before, my name's Andrea, I'm an HIE mum of Noah, who's nearly 12. I am delighted to be here today with Hannah Adams. Hannah is Associate Solicitor and head of the special educational needs department at Shentons Solicitors in Winchester. And not only that but she's one of my very good friends. Um, and Hannah and I have known each other for what we've just realized is a frighteningly long time.

Hannah: 0:36

Right, Hannah? Yeah, absolutely. I think what did we work out? Something like 30 years. 30 years.

Andrea: 0:42

So welcome anyway, Hannah, to the podcast. It's really great to be here. And we're here today to talk about EHCPs, aren't we? Before we do that, tell everybody a little bit about how you came into doing this role, working in special educational needs law, and the story, I guess, between what happened to you as a mum and then what that's helped you do professionally.

Hannah: 1:04

Sure. So I had qualified as a solicitor and was working in the area of children's law. And I had my first child who, Became very poorly in utero which was picked up at about 22 weeks and he, went on to have an extended period of time where we were under a fetal medicine team and they were trying to treat him. Unfortunately the treatment never really got, got on top of his difficulty. He had a heart condition, and so he had to be delivered early by emergency c section at 32 weeks. And although that was quite a reasonable gestation for a neonatal prem baby he was a very poorly baby and spent 10 weeks in the end in NICU and in PICU and specialist cardiac pediatric wards. So, and when he was discharged We were told that he didn't have any obvious brain damage on his MRI, but that that didn't mean to say there wasn't damage there. And essentially it was a go away and, and see and watch and wait with his development.

Andrea: 2:14

so you actually had a really similar experience to lots of us, HIE parents in terms of that discharge and the just wait and see situation,

Hannah: 2:23

Absolutely. There were always question marks as to actually, what was. going on for him neurologically his development was delayed, his speech was, in particular, was delayed and what that meant was that I didn't go back to my job, I had a period of time out as a parent carer, his heart condition was very unstable for his first year anyway, so he couldn't go to be left with anybody so, I did eventually go back to work, but I think as Finn was getting to the age of sort of preschool years, he was referred to an inclusive provision, preschool placement. And it was at about that time when I was having lots of concerns about not just his development, but his behavior which could be quite tricky at times. And his speech. development that I was back in touch with somebody I trained with previously who did special educational needs law principally because we were talking about my son, but actually she then said, I think that given your experiences, you would be quite well suited to this area of law. And so that's when I started to kind of retrain, if you like, into special educational needs law, just at the point where our son was starting school and what we discovered very quickly within the first half term was that he was really struggling in that environment, was completely overwhelmed and that put us straight onto the track of applying for what was then a statement of special educational needs is now known as an EHCP. So he received that before he was five and he then repeated his reception year in a mainstream school. Subsequently, he has gone on to move out of mainstream schooling into the specialist school sector when he was eight and he's now coming up for 16. So we've we've had a really long journey as parents through a couple of special educational needs and disability tribunals. To get him the right provision into his EHCP. But also I have continued to work with parents since that time. So that's what I do for a living and I advise and represent parents at all different stages of the process from pre assessment right through to if they're, if they're unfortunate enough to have to go through the tribunal process.

Andrea: 4:42

so we're here today to help anybody who's. in that same position to understand what's available to them in terms of supporting their child in school., I certainly know from all the people that I talked to how much misinformation there is out there about EHCPs, so let's start at the beginning, I guess, and talk about the basics. What actually is an EHCP?

Hannah: 5:09

So, EHCP stands for Education, Health and Care Plan, and it's a legal document which summarises the needs of a child who's got special educational needs or a disability. In terms of their education. their health and their social care needs, if there are any, into one document. And the way that I talk to parents about the EHCP is to see it as a contract between yourselves. And the local authority in respect of the education elements of that plan, because the local authority are bound by law to arrange and deliver the educational provision that's set out in the plan, and to fund the placement that is set out in that plan. So It's really important to get the contents of that document right, and what the law says is that they need to be concise, but sufficiently detailed so that every need is set out in section B of the plan, and for every special educational need that is identified, there must be corresponding special educational provision. set out in section F of the plan. And that provision and the way it is drafted must be specified and quantified. That's really important because it's all really to do with the drafting. And, and the law tells local authorities that it must be drafted in a way that is legally enforceable so that everybody knows. exactly what is to be delivered to that child, the school, the parents and the local authority. But unfortunately, sometimes where things go wrong is that the drafting is very vague. And what that leads to is difficulties for the parents in enforcing that and ensuring the provision is delivered.

Andrea: 7:00

When you say drafting, kind of what you mean is just in terms of the way it gets written, right? The

Hannah: 7:04

way it is written. Yeah, absolutely. The words that are used. The other really important aspect of the EHCP is that if your child has complex medical needs associated with their disability, that those needs are set out in the relevant sections and the health provision required to meet those needs is set out. You don't have the same rights of enforceability in respect of the health and the social care needs, but it is a really important part of the plan, particularly for complex children and young people who have a significant physical disability or health conditions that go with their special educational needs, as is the social care sections. Because That's where everybody is supposed to stop and consider what support does this child and their parent carers need around their disability, and what does that look like, and what should they therefore be receiving from social care. And, That, that's a relatively new aspect of the law. Statements of special educational needs that existed up until 2014 didn't include those aspects. So the whole idea around the EHCP is that we're bringing all of that child or young person's needs together in a holistic way into one document to look at every aspect of their lives and how that's been impacted.

Andrea: 8:32

And I remember when you were first explaining this to me, I think the really key thing is that there, there's a number of different sections that focus on all of those things you've talked about that have got letters A to okay. And there's only two of the sections that are legally enforceable and they are the two education sections. Is that

Hannah: 8:51

right? Three, three sections. Yes. So yes, section B is needs. Section F is special educational provision and section I is the placement. And so those are the three sections which you have a right of appeal against if you are unhappy with the contents of. And we'll get into that a little bit later. The other thing I wanted to say about the EHCPs is that they can be issued for a child who is as young as two, up to a young person who's aged 25, and that was a big difference which changed the landscape from the previous. legal arrangements. So, and I think that's particularly relevant for your listeners because some of these babies will have had huge brain injury and their needs will be quite obvious from quite early on and they will encompass a whole range. So health needs and physical needs arising from a disability. And I think it's unusual for parents to think at that stage. At that age when they've essentially got a baby at home with them about EHCPs and education because it, you are dealing with the aftermath of a huge trauma and meeting the needs of this child which, which are incredibly complex. But actually what the law says is that. Those children can be entitled to a, an EHCP, and it's important to understand that that is possible because If they need additional help in accessing very early years education, but also therapy to meet their needs, then it could be that an EHCP is relevant for them at that age. And so parents need to understand that they can make that request. And those very young children can be considered, can have EHCPs, which would then enable them to access preschool provision the same as any of their peers.

Andrea: 11:04

And I guess at the other end of the spectrum, which, you know, when you've got very young children, it feels almost impossible to imagine that there's going to be a time where they're going to get to 16 and you have to think about that post 16 care, but obviously for you and I'm gradually getting to that as well. You know, I know there's a number of people who maybe haven't known about EHCPs or have been misinformed and haven't got the right provision necessarily in place for their children, but it's, it's. Still not too late in a way, I guess, is it? Fairly late, because now it goes to

Hannah: 11:36

25. It goes up to 25, and that's, you know, for my son the EHCP will have been a huge chunk of his life. He received his first statement just before he was five. He still has it now. It's very relevant now. Just had an annual review for him and we are looking at post 16 educational provision, but also what is almost as important now is the development of independent living skills. So we are now having to look really carefully at what kind of educational provision is going to be needed to teach him those skills in a way that he can access to maximise the possibilities of him being independent and that could look like provision in a specialist setting up until he's 25. I don't know yet. But, but the fact is that the plan allows us to do that as long as we are able to evidence that there is an ongoing need for him to have education to, to teach him skills that he's going to need. Even if those skills look quite different to your average Chronological peer. So yeah,

Andrea: 12:50

so we've got, you know, obviously from two to 25, I think there's also some misunderstanding around, what qualifies you to get an EHCP in, in the first place. So can you talk a little bit about that?

Hannah: 13:02

So what's really important to remember is that all of this is set out in law. So. You know, you may get told slightly different things. People are told hugely different things by local authorities, by educationalists, people in schools. But the important thing to remember is that it's, it's set out in statute.

Andrea: 13:23

One of the typical things that I hear from other parents in a similar situation is that they've been told by school that you will never get an EHCP. That doesn't meet, almost doesn't meet the threshold. Can you explain what the threshold is in terms of the level of need to get an EHCP.

Hannah: 13:40

So there's a legal test which the local authority have to apply, and that is Considering that particular child, whether there's evidence that they have or may have special educational needs that will require provision to be made for them through an EHCP. So that sounds a little bit muddled. So we then need to break it down and we need to look at what does special educational needs. or disability mean? So, essentially, it can mean a learning difficulty or a disability. The learning difficulty would mean that that child has a significant greater difficulty in learning than the majority of others of the same age. Or that they've got a disability which makes it difficult for them to use the facilities normally available for other peers of the same age. And It's important to, to remember that it, the test is that they may have because the whole process of going through statutory assessment is to ask those questions. It's not that you've got to prove at the outset that they do have those special educational needs, but that they may have. So actually, it's quite a low threshold in terms of being able to get to the assessment stage.

Andrea: 14:59

And so essentially, if you have got concerns about the fact that your child may have special educational needs, that's enough for you to start this process.

Hannah: 15:09

Just to be clear, it, it, the, the threshold is two parts. It's whether they may have special educational needs, which will require provision to be made by way of a plan. So in this country, we have kind of two tiers really of special educational provision. All children are entitled to access education, same as. Their peers and if they are finding that difficult because they've got some special educational needs, then the school must make reasonable adjustments to meet those needs, and all schools are given a portion of their budget to meet the needs of children who have special educational needs and they will do so in a universal way, so they will have a universal offer for those children and that will look like small group interventions, perhaps some one to one on a intermittent basis to help with particular targeted interventions for difficulties but when a child needs more than that, And what they need is particularly advice and expertise from outside professionals that aren't on staff in the school. So such as speech and language therapy, occupational therapy, physiotherapy, where they're going to need significant amount of staffing to support them within that setting. That's the point where you can't expect. the mainstream school to be able to deliver those sorts of specialist provisions as part of their SEND budget, and that's when you would be looking at, this is provision that needs to be made by way of an EHCP because it is funded differently by the local authority.

Andrea: 16:48

A lot of people I speak to seem to think that it's only the school that can help them apply for an EHCP. Is that true or is there another way to do it, Hannah, if schools are not willing?

Hannah: 16:59

No, that's not true. A school can request statutory assessment for a child, but so can their parents predominantly. I would advise that parents make the request because they are also then in charge of what information is being shared by them. So when a school makes the request, yes, they should talk to you about it and work together with you. But sometimes that doesn't happen. And actually, you might have really important documents and things that you want to say and information and evidence that you want to share. So if you make that request, you're entirely in control of what's being sent in. And of course the school will be asked to contribute, so it's not as if you're cutting them out. But it's about being, perhaps being proactive about it. And also often the school are coming from a different position. But that's okay, that shouldn't stop you from making that request, because it's about knowing the criteria and supplying the local authority with evidence to prove that your child may have special educational needs, but may require provision to be made by way of an EHCP.

Andrea: 18:01

And I think there's huge value in just showing the school that you are aware of the process, that you are aware of the law, that those are things that you're clued up on, because I do think you get a different response from everybody involved in the process when they realize that you are you know, a little bit aware of your rights and, and what, what your child is entitled to. So I think that is really helpful.

Hannah: 18:22

And the whole statutory process looks like in our ideal world, a 20 week process. So it's really important that families understand this is a really lengthy process to go through. But there is a statutory timescale around it. So if there is delay at various different stages, that can be unlawful. And they need to make sure that when they start the process, they literally put a diary entry in that you've requested your statutory assessment which often these days is done online on the local authority's website or they may have a hub but it can be just a letter written and I always advise to send things by email because then you've got a paper trail and you can prove when it was sent saying I request that the local authority undertake a statutory assessment of my child's special educational needs. Now, The way to optimise your success in that process is to provide evidence then and there as to why you think your child might require provision to be delivered by way of an EHCP and that they may have special educational needs. The local authority will then take six weeks to make, to make a decision about whether or not they undertake that assessment and they may decide that they don't think your child meets that criteria and they refuse to assess. You will have a right of appeal against that decision to the Special Educational Needs and Disability Tribunal. I'll shorten that to SEND Tribunal. Because that's a bit of a mouthful, let's face it. So If they do go on and assess, there will then be a further 10 weeks during which the local authority will gather evidence about the child's needs from a variety of different places. So any treating therapists that are involved should be asked to contribute. The school or educational setting, if that's a preschool, will be asked to contribute and that will form a picture. And at the 16 week point, From when you first requested your statutory assessment, that is when the local authority must make a decision about whether or not they are going to issue your child with an EHCP. If they say they're not, they've assessed and they say no, we don't think provision needs to be made by way of a Education, Health and Care Plan. Again, you will have a right of appeal against that decision to the SEND Tribunal. If they are going to issue a plan, they must provide you with a draft, copy of that and you then have two weeks to consider the draft and take a look at the wording and get, get legal advice. If you, if you're confused about it and you want to know, that's a really good opportunity to seek some advice. Or from a charity and then you can request amendments to the draft plan. And if they are looking for a setting at that point, that's when they will send the draft plan out to different educational settings to consult with them. and then they must issue a final plan. And even if they issue it and you're unhappy with the contents, again, you will have a right of appeal at that point against the educational sections of the plan. So it's a really lengthy process.

Andrea: 21:38

We had a couple of questions that came in through peeps which I think we've answered a few of them. But The first one was, can you give a couple of examples of things that might be in an EHCP? So what, what's the kind of provision that some people might be able to get through an EHCP? I guess,

Hannah: 21:56

The crucial kind of biggies for us when we're acting for families is the specification and quantification of therapies. So, looking at what exactly that looks like for that child, speech and language therapy you know, it can be bandied around In terms of wording in a plan, but actually you need to be able to come away with that plan knowing when your child is going to be seen, how long for, by who, on what frequency and when that is going to be reviewed. That's the sort of detail that we would be looking at putting into a plan for occupational therapy, physiotherapy, speech and language therapy. It's important to remember that those therapies are educational. needs for the, for our young people. So they might be health needs as well, but most of the time they are also going to be classed as special educational needs, which means they need to be in the educational sections of the plan. Class sizes is something else that we would be looking at. You know, perhaps there are particular programs and equipment that that child needs to be able to access in order to record their work. So we would be looking at specifying and quantifying that as long as that is needed for the purposes of their education and training, that should go into the plan. One to one staffing ratios is a, is a big one because particularly for children who are in a mainstream setting, but have got quite a high level of needs. You know, that can be the difference between them being able to function in that environment and not. So, you know, those are sorts of examples, really. Fantastic.

Andrea: 23:35

Another question is do schools have to follow the EHCP? So you can get the EHCP in place. What do schools then have to follow what's said in them? Yes.

Hannah: 23:47

The answer is that yes, they do. It's as long as your provision is in section F of your EHCP and it's educational provision and that is why you're going to want it specified and quantified so it's really clear as to who is supposed to be delivering what and for how long, then the, that provision must be delivered. And if the school are saying to you, we just don't have the funds for that, we can't afford it, It's important to remember that it's the local authority that has that statutory responsibility. So you will go back to your SEND caseworker and say, I've got speech and language in my child's plan. It's not being delivered. You are therefore acting unlawfully and you need to rectify that breach. And you would do that by way of a formal complaint. Following your local authority's complaints procedure. And that's really important because if you discover a breach, something that isn't happening, the local authority are breaking the law. They're breaking the terms of your contract, i. e. your EHCP. And there are specific legal requirements, including timescales around that, in which you can seek to take action to enforce the contents of the EHCP. But again, it's not open ended. Don't sit on it. You've got to move. And the first thing you've got to do is alert the local authority to the breach, ask them to rectify it. If that doesn't happen, you, you know, you follow the complaints process onto the next stage. And if, you know, if things aren't changing, that's when you want to contact a legal advisor, whether that's through IPSE, or whether you pay for someone off advice, whether you can get a spot in a pro bono clinic. It may be that you're eligible for legal aid in this area. They're quite limited financial criteria for that, but you would just Google the CLA gateway. And they will do an assessment and tell you whether you might be eligible to get some, some advice. Because that is straying into another area of law, which we call public law, which is ensuring that statutory bodies are complying with their with the law and what to do if they're not. And that's quite a complex area of law. And that is really when you do need legal advice.

Andrea: 26:00

That's really, really good to know. And I think in the main schools do follow as much as possible. And I think it's really worth, you know, talking about how much pressure we know schools are under in terms of funding. And, and I think that's why it's so important to be thinking about the fact that this is the local authorities. It's the local authority's responsibility to help them. Yeah,

Hannah: 26:19

and actually sometimes it gets muddled with the school, because the school are being told by the local authority, just deal with it, we've given you your budget, you need to find the money. But actually that isn't what the law says, the law says the buck stops with the local authority. So, If the school aren't able to finance your occupational therapy or whatever it is, then, you know, that's when you need to be going back to the local authority and pursuing a complaint and getting legal advice about that. Something that we do, unfortunately, fairly frequently is to threaten local authorities with judicial review if they are acting unlawfully in respect of delivering the contents of a plan. And as I said before, that's a really complex area of the law and you do need legal advice and representation, but you know, IPSEA is there, has got information about that on their website.

Andrea: 27:11

Thank you so much. I think, you know, that's a great place to leave it, really. This has been absolutely incredibly valuable information. I'm sure for those people who are about to or in currently going through this process. So very much for giving us your time today to do this. And thank you for just generally being amazing from me as well.

Hannah: 27:31

Thank you, Thank you so much for having me, it's, you know, it's one of my passions is to kind of get information out there for parents because, you know, I went through, and I do go through this myself all the time. So and I know, I know how it felt. In those early days when I wasn't an SEN lawyer and had all those worries and concerns and didn't know where to turn and didn't know where this information existed. So I feel really passionate about getting that out. And thank you to Peeps for giving me a platform to be able to do that because I just think it's really, really important.

Andrea: 28:02

We will do, other podcasts, in the future, because there's so much more to say. And I already know we've spoken for so long that I'm probably going to have to cut things out, but we, we get to include in this podcast. So if you have questions, if this has raised challenges or worries for you um, Peeps is absolutely there to support you to direct your questions, either to someone like Hannah or, you know, somebody else

Hannah: 28:27

And lots of love to all the families out there who are struggling to navigate through the process because it's, you know, it's a tough one, but we do it for our, our babies and you know, and it's worth it. It's worth it in the end. Keep fighting.