Special educational needs Gettin ting g the Co Content ent of f an ED EDUCATION, ION, HEALTH TH AND CA CARE P PLAN Right ht www.accesslegalsolicitors.co.uk
SEND REFORMS 2014: KEY CHANGES The Children and Families Act 2014 came into force on 1 September 2014 and introduced: New statutory framework, new regulations and new Code of Practice 1. SEN Support replacing School Action and School Action Plus 2. Education, Health and Care Plans replacing Statements of Special 3. Educational Needs EHCPs can cover 0 – 25 years 4. Option of a personal budget for those with an EHCP 5. ‘Outcome’ focused and person centered 6. Requirement for all Local Authorities to publish a ‘Local Offer’ 7. Integration & co-operation between education, health and social care 8. services Duty for Local Authorities to ‘have regard to’ views, wishes and feelings of 9. the child and his/her parents or the young person & need to support child, parents, young person in order to facilitate his/her development and to help him/her achieve best possible educational outcomes (s.19, Part 3)
Education, health and care plans
EHCP • Covers children and young people in education or training up to age 25 • A legal document describing young person’s SEN, provision and educational placement • Jointly commissioned by Education, Health and Social Care • Must be person centred and focused on outcomes
EHCP TIMELINE
Structure and form of an ehcp SECTION ION A Views, interests and aspirations of the SECTION ION B child and his parents Child’s special education needs (SEN) SECTION ION C Child’s healthcare needs which relate to their SEN SECTION ION D Child’s social care need which relate to their SEN SECTION ION E The outcomes sought SECTION ION F by the child The SEN required by the child
Structure and form of an ehcp SECTION ION G Any health care provision reasonably required by the SECTION ION H1 learning difficulties or disabilities which result in the child having SEN Any social care provision which must be made for the child under s2 of the CSDPA 1970 SECTION ION H2 Any other social care provision reasonably required by the learning difficulties which result in the SECTION ION I child having SEN Name of school and/or type of school or institution SECTION ION J Where provision to be secured by direct payment, the SEN and SECTION ION K outcome to be met by the direct payment Advice and information in appendices
Section b - SEN • Needs to give a clear picture of your child’s special educational needs, in sufficient detail for somebody working with them for the first time to get a picture of your child and their needs • SEN Code of Practice says (pages 164-165): • All of the child or young person’s identified special educational needs must be specified • SEN may include needs for health and social care provision that are treated as special educational provision because they educate or train the child or young person
Section f – SEN provision • Special Educational Provision: ➢ Education/training provision additional to or different from that made generally for others of the same age in mainstream settings. This includes health care provision or social care provision which educates or trains a child. ➢ There should be provision for every need identified in Section B (Special Educational Needs) that is specified and quantified ➢ Provision should not be left out on ‘cost’ grounds ➢ Don’t accept vague or flexible wording because its ‘what is needed at the moment’ – EHCPs can be reviewed! ➢ Health Authorities can ’ t veto provision set out here ➢ a helpful test – if the provision was not delivered, would the child still be able to education/ training on a par with their peers without SEN/ disabilities? If no, then the provision should be included.
Section f – wording examples • 'Jennifer would benefit from having access to eye gaze, to be used as deemed appropriate’ • ‘School staff will undertake and access any training as required. ' • Both of these would be 'bad' wording; the provision is vague, not specific or quantified and would NOT BE ENFORCEABLE.
Section f – wording examples • 'Jennifer must have an eye gaze device provided at all times during the school day. It is essential for Jennifer to have a communication partner at all times to access her voice and model the system’. • School staff must be provided with up to date training, including attending Rett UK training days and Smartbox or Tobii training days relevant to the software that Jennifer is using. This training must be undertaken half termly, as a minimum’. • These are 'good' wording' provision is specific and quantified and there is provision for the support that Jennifer will need. All of this provision would be ENFORCEABLE.
Section i – placement • This Section if left blank when you receive a draft, to allow you/your child to express a preference for a particularly placement, It is only be completed when you get a final Plan. • What can be named? • Maintained mainstream or special • Independent mainstream or special • Academies • Sixth Form Colleges • General FE Colleges • Vocational learning and training providers in private sector
ENFORCEMENT OF AN EHCP Enforceable decisions include the following: A. The special educational provision in the EHC Plan – the local authority must secure the special educational provision for the child or young person that is specified in the Plan B. Health care provision – if the Plan specifies health care provision, the responsible commissioning body must arrange the specified health care provision for the child or young person C. Social care provision – There is no duty in the Act to secure or arrange the social care provision that is specified in the Plan. D. Admission to a particular institution - duty to admit (including Academies).
Challenging the ehcp
mediation 1. It is compulsory that parents, at least, consider mediation before bringing most types of appeals to the Special Educational Needs Tribunal, unless their appeal is only against placement (Section I). 2. Mediation attempts to resolve disagreements between parents/young people and the Local Authority. 3. If parents decide not to go through mediation, the mediation provider will issue a certificate confirming they received information and decided not to proceed. 4. Whether parents go through mediation or not, they have to have a certificate (either of completion or information) to lodge an appeal with the Tribunal.
Appeal process • Parent/young person completed appeal form (from Tribunal website) and submits along with all paperwork, in their possession related to the appeal • Within 10 days parent/young person receives registration documentation from Tribunal with a timetable for the appeal. From now on everything emailed to Tribunal must be also emailed to Local Authority (Week 0) • Local Authority must provide their response to the appeal and attendance form (Week 5) • Further evidence deadline for both parties, and parental attendance form (Week 9) • Working document and Tribunal bundle circulation (Week 10) • Tribunal hearing (Week 12) – important to note refusal to assess paper hearing only • Tribunal decision is issued (usually within 10 working days of the hearing)
SEN TRIBUNAL NATIONAL TRIAL • On 3 April 2018 a national trial began to extend the powers of the SEND Tribunal to be able to make non-binding recommendations on the health and social care aspects of EHC plans. • Extended powers are set out in The Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 • Guidance and a toolkit has been published by the Department for Education and can be found at http://www.sendpathfinder.co.uk/send-single-route-of-redress- national-trial. • Although recommendations are non-binding they should not be ignored or rejected without careful consideration. Potential to refer to Ombudsman/Judicial Review if ignored.
WHY DO I NEED SPECIALIST HELP? • Get the EHC Plan in time for placement • Ensure the content of EHC Plan is accurate, lawful and enforceable: ❑ Does it meet the needs of the child/young person? ❑ Is all of the Special Educational Provision recorded in the relevant sections? ❑ Challenge the Local Authority decision regarding placement named in an EHC Plan or how provision is recorded.
Key Contacts VICTORIA FEDERICO Solicitor and Head of Education Law T: 03700 86 8469 M: 07714 751566 E: victoria.federico@accesslegalsolicitors.co.uk GURVINDER SAMRA Solicitor T: 03700 86 41 19 E: gurvinder.samra@accesslegalsolicitors.co.uk
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