Date of Resource: April 2015 Page 1 of Education, Health and Care Plans Learning Aims The learning aims of this legal briefing are to: 1 Consider the process of issuing and consulting on a draft Education Health and Care Plan ( EHC Plan ); 2 Understand the definition of an EHC Plan; 3 Be clear about what separate sections are required in an EHC plan and what they must or should each contain; 4 Explain how to analyse an EHC Plan in detail; 5 Explain the extent to which the different parts of an EHC Plan are enforceable in law. Level: Introductory 1. Introduction This briefing will consider the different situations in which a local authority ( LA ) could issue a draft and then final EHC plan and where the parent of a child with special educational needs ( SEN ) or a young person with SEN will need to understand what it should contain. We will then look at how the Children and Families Act ( the Act ) defines an EHC Plan. References in this learning text to numbered sections refer, unless otherwise stated, to sections of the Act. We will then go on to give a detailed analysis of what an EHC Plan should contain, looking at the Special Educational Needs and Disability Regulations 2014, the SEN and Disability Code of Practice 2015 ( the Code ) and case law. Finally we will examine the extent to which an EHC Plan creates legally binding obligations and upon whom. 2. Law Statute: Section 21 defines the different types of provision which can be in an EHC Plan; Section 37 sets out what should be specified in an EHC Plan; Section 38 contains the duties on an LA in preparing a draft EHC Plan; and Section 42 of the Act contains the duties to secure the special educational provision and health care provision in accordance with an EHC Plan.
Page 2 of Regulation The Special Educational Needs and Disability SEN Regulations 2014 ( the SEN Regs ) contain detailed provisions about the contents of, in SEN Reg. 3. Guidance Chapter 9 of the Code contains the relevant paragraphs dealing with EHC Plans. 4. Issuing an EHC Plan in Draft Form Parents of children with SEN and young people with SEN will be looking at the contents of an EHC Plan in draft form - in three circumstances: When a draft EHC Plan is first sent to them after an EHC Needs Assessment; When a revised draft EHC Plan is sent to them after a statutory reassessment; or When an EHC Plan is sent to them together with proposed amendments after Annual Review or at any other time when a local authority proposes to amend an EHC Plan. Time Scales After an initial EHC Needs Assessment has been carried out and the LA draft an EHC plan for the first time, SEN Reg 13 provides that the parent or young person must be given at least 15 days in which to give views and make representations about the content of a draft plan. SEN Reg 13 also gives parents and young people the right to require a meeting with the LA at which the draft EHC Plan is discussed. (Also mentioned in the Code at paragraph 9.75). The EHC Plan must then be finalised within 20 weeks of the request for an EHC Needs Assessment or of the LA becoming responsible for the child under section 24. In the case of a re-assessment again the parent or young person must be given 15 days in which to give views and make representations. The EHC Plan in its amended form must be finalised within 14 weeks of the LA making the decision to re-assess (SEN Reg 27 (2)). In the case of an amendment to an EHC Plan after Annual review or at any other time (other than a re-assessment) the parent or the young person must be given 15 days to give views and make representations about the contents
Page 3 of and the LA has a period of eight weeks in which to finalise the EHC Plan (SEN Reg 22 (2)). In whichever time scale applies, at the draft EHC Plan stage parents and young people will need advice to be direct, on point and given in a timely manner. They have only 15 days in which to make their representations to the LA. This is expressed in the Act as a minimum period in each case but it seems likely that in most cases this is the period of time the parent or young person will be given to comment on the draft EHC Plan. Under s. 38(5) when a draft EHC Plan is sent to parents or the young person it must not name a school or other institution or specify a type of school or other institution. This is because the contents of the EHC Plan in particular the special education provision must reflect the individual needs of the child or young person as gathered in the evidence during the statutory assessment process and not what resources are available in a particular type or actual school or college. 5. Issue of a finalised EHC Plan A finalised EHC Plan is likely to be under scrutiny: Each year at the time of Annual review to see if amendments are required but particularly at the time of transfer from one phase of education to another; If there is an emergency or interim review if there has been an exclusion of a child or young person with an EHC Plan or for any other reason; When a child or young person is not receiving the provision they should be receiving at their placement and issues arise around the provision in the EHC Plan not being sufficient or not specific enough or not being implemented; When the finalised EHC Plan is issued at any time and the parent or young person wants to appeal the contents; If the LA refuses to amend the EHC Plan after re-assessment or review and the parent or young person then wants to appeal the contents of the existing EHC Plan; When the local authority is seeking to cease to maintain an EHC Plan and the parent or young person takes the opportunity to appeal the contents of the EHC Plan as well as the cease to maintain decision. Again, as much as when a draft plan is under consideration, parents and young people will need focussed and timely advice on what constitutes the legal contents of an EHC Plan.
Page 4 of 6. What is an EHC Plan Section 37 Section 37 (2) For the purposes of this Part, an EHC plan is a plan specifying (a) the child s or young person s special educational needs; (b) the outcomes sought for him or her; (c) the special educational provision required by him or her; (d) any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs; (e) in the case of a child or a young person aged under 18, any social care provision which must be made for him or her by the local authority as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970 (as it applies by virtue of section 28A of that Act); (f) any social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs, to the extent that the provision is not already specified in the plan under paragraph (e). (3) An EHC plan may also specify other health care and social care provision reasonably required by the child or young person. The first words of this section therefore qualify everything which follows, i.e. an EHC Plan is a plan which specifies all of the sections which follow. Case law has established that a duty to specify means that wording must be so specific and so clear as to leave no room for doubt as to what has been decided in necessary in the individual case. 1 This duty therefore applies to all of the sections of the EHC Plan set out in Section 37 (2). Needs The EHC Plan is required by virtue of section 37 (2) (a) to specify the child s special educational needs. However Section 37 does not require the health needs or the social care needs to be specified in the EHC Plan, only the special educational needs. Given that an EHC Needs Assessment is an assessment of child or young person s education, health and care needs this may seem surprising, but this has been extended in the SEN Regs as explained below. Outcomes The Education Act 1996 and the regulations issued under it governed (and during the transition period will continue to govern) the format of statements which have a specific statutory form. Under this regime, a statement is required, in Part 3, to set out the objectives of the special educational 1 (L v Clarke & Somerset CC [1998] ELR 9).
Page 5 of provision. There is no requirement to specify objectives in an EHC Plan. An EHC Plan must specify instead the outcomes (section 37 (2) (b)). These are a key part of an EHC Plan and should derive from the advice obtained during the EHC Needs Assessment. Provision Section 37 (2) (c) requires the special educational provision to be specified. This replicates the requirement from the Education Act 1996 in relation to the specification of special educational provision in Part 3 of a statement. Section 37 (2) (d) requires any health care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs to be specified. This sub-section is different from 37 (2) (c) in an important respect because it refers to the provision reasonably required. This is an important point to grasp; where special educational provision is concerned, if it is required then it must be specified in the Plan; there are no caveats or exceptions whether in relation to resource considerations or otherwise but this is not the case with health care provision. In relation to Health Care Provision there is another important caveat to be aware of which is contained in SEN Reg (2). The health care provision must be agreed by the responsible commissioning body before it can be included in an EHC Plan. Section 37 (2) (e) and (f) deal with social care provision. In the case of child or young person under 18, any social care provision which must be made by virtue of section 2 of the Chronically Sick and Disabled Persons Act 1970 ( CSDPA ) must be included. 2 In addition any other any social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs must be included again the reference is to what is reasonably required. 2 Section 2 CSDPA 1970 imposes a specific duty to provide a wide range welfare services of all kinds for persons with disabilities by reference to the somewhat old fashioned definition of disability contained in section 29 of the National Assistance Act 1948 persons aged eighteen or over who are blind, deaf or dumb, or who suffer from mental disorder of any description and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister. This applies to children as well as to adults by virtue of section 28 of the CSDPA. However the duty under s 2 CSDPA 1970 only arises if the authority is satisfied that it is necessary to provide services. Usually such a decision is made after an assessment has been made under the Children Act 1989. The Code (at paragraph 10.18 says that EHC needs assessments should be combined with social care assessments under section 17 of the Children Act 1989 where appropriate. This is explicit in Working Together to Safeguard Children 2013,which is statutory guidance about the carrying out of assessments under the Children Act 1989
Page 6 of Special Educational Provision, health care provision and social care provision are defined terms in the Act. Special Educational Provision is defined as: Section 21 (1) Special educational provision, for a child aged two or more or a young person, means educational or training provision that is additional to, or different from, that made generally for others of the same age in (a) mainstream schools in England, (b) maintained nursery schools in England, (c) mainstream post-16 institutions in England, or (d) places in England at which relevant early years education is provided. Health Care Provision is defined as follows: Section 21 (3) Health care provision means the provision of health care services as part of the comprehensive health service in England continued under section 1(1) of the National Health Service Act 2006. Social Care Provision is defined as follows: Section 21 (4) Social care provision means the provision made by a local authority in the exercise of its social services functions. These different types of provision are differentiated by the source of the provision. But in relation to health care provision and social care provision this is subject to section 21 (5): Section 21 (5) Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision). This is considered in more detail below under the comments about Section F of an EHC Plan. The EHC Plan may also specify other health care or social care provision reasonably required by the child or young person.
Page 7 of Having reviewed the framework of an EHC Plan from the Act, consideration of how to analyse an EHC Plan in detail is set out below. 7. Analysing an EHC Plan the Detailed Provisions from the Code and the SEN Regs There is no standard form of an EHC Plan but SEN Reg contains detailed requirements of what the local authority must set out in an EHC Plan in separate sections and referred to by designated letters and this is reflected in the Code (see the table at paragraph 9.69). Section A This section must set out the views, interests and aspirations of the child and his or her parents or the young person. Some local authorities may write this section in the first person. If they do it has to be made clear whether the are the words of the child or young person being quoted or that of a parent or professional interpreting their views. It will be the place to include any relevant history. This section should also include a summary of how to communicate with the child or young person and engage them in decision-making. However it will be important when reading the Plan to ensure that wording which constitutes the child s special educational needs or special educational provision is not included in Section A only as it is essentially an introduction which has no legal effect. 3. Section B This is the section where the child s special educational needs should be listed and is a key section of the Plan. This section should reflect all the educational difficulties identified in the parents and professionals reports obtained during the EHC Needs Assessment. Each report gathered through the statutory assessment process should be analysed; it will be necessary to go through all the advice and reports highlighting each difficulty and checking whether Section B has included them. Is the description of each need detailed and accurate? If there is a conflict between reports, has this been resolved? Once the needs have been identified, it helps if to number each in turn so that they can be easily matched with the corresponding provision. Section C The EHC Plan must set out the health care needs which relate to the child or young person s special educational needs. The Code gives routine dental health as an example of routine health care needs, which would not relate to special educational needs. The Code also says that the Clinical Commissioning Group which is responsible for health care provision may choose to specify other health needs which are not related to a child or young person s SEN.
Page 8 of Section D The EHC Plan must set out the social care needs of the child or young person which relate to their special educational needs or disability. These should have already been clearly identified by a social care assessment having been carried out by the social care team during the statutory assessment process (see note 2 on page 5 above). Section E This section must set out the outcomes for the child or young person. The Code explains that there should be a clear distinction between outcomes and provision and defines an outcome as the benefit or difference made to an individual as a result of an intervention. Paragraph 9.66 of the Code says An outcome can be defined as the benefit or difference made to an individual as a result of an intervention. It should be personal and not expressed from a service perspective; it should be something that those involved have control and influence over, and while it does not always have to be formal or accredited, it should be specific, measurable, achievable, realistic and time bound (SMART). It will be necessary for parents and young people to pay attention to this section and there should be an outcome relating to each of the identified needs as well as provision designed to work towards each outcome. This will be important as children get older, in particular in the context of when an EHC Plan can be ceased and in relation to reviews and re-assessments. When making decisions about whether or not to cease an EHC Plan, review or conduct a re-assessment, for a young person over 18, the LA must have regard to whether the educational or training outcomes in the EHC Plan have been achieved. The relevant sections of the Act here are section 44 (5) in relation to review and re-assessment and section 45 (3) in relation to ceasing to maintain an EHC Plan.
Page 9 of Section F This is the section where the special educational provision must be set out. The Code gives more detail in the table at paragraph 9.69 under section F, for example: provision must be detailed and specific and should normally be quantified, for example in terms of the type, hours and frequency of support and levels of expertise; provision must be specified for each and every need specified in section B; This is not just guidance, it reflects the law as developed through case law in relation to statements and the corresponding provision in the Education Act 1996 which had the same wording (i.e. that provision must be specified). Case law on special educational provision: R v Secretary of State for Education and Science Ex Parte E [1992] 1 FLR 377 CA - The local authority has a duty to make special educational provision for each and every special educational need identified in statement. L v Clarke (Chair of Special Educational Needs Tribunal) & Somerset County Council [1998] ELR 9 In very many cases it will not be possible to fulfill the requirement to specify the special educational provision considered appropriate to meet the child s needs, including specification of staffing arrangements and curriculum, unless hours per week are set out. Therapies: Section 21 (5) is an important subsection in this context. This is the section which provides that health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision). Provision of this nature, which is likely to be, but certainly not limited to, therapies, such as speech and language therapy and occupational therapy, needs to be included in Section F. If included in this section a LA has the legal duty to secure this provision even if the local health care or social care provider delivers it in practice. When analysing section F, look back at the list of needs drawn up in relation to Section B and any identified after checking the professionals reports, and check that each of the needs is matched by provision. Is the provision described clearly and with enough detail so that the parent or young person is absolutely sure what provision will be received in each case? Section G This is the section where any health provision reasonably required by the learning difficulties or disabilities which result in the child or young person having special educational needs must be set out. As mentioned above this is subject to the agreement of the responsible commissioning body.
Page 10 of Section H This has two parts. H1, which is the social care provision which must be made under section 2 CSDPA 1970 and H2, which is any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having special educational needs. SEN Reg (3) also applies to this section. Section I This is the section which contains the name of the school or post 16 institution at which the child or young person will be placed or the type of school or other institution. When the LA issues a draft Plan this part must be left blank to give the parent or young person the opportunity to request a particular school or post 16 institution (see our legal briefing on Naming a school or FE Institution in a Plan for the details about the rights parents and young people have in this respect). Part I of the final EHC Plan must set out the type of school which is considered appropriate (e.g. mainstream, special, residential, primary or secondary etc.) and should normally but not always name a particular school. Section J Where any special educational provision is to be secured by a direct payment, the special educational needs and outcomes to be met by the direct payment should be set out here. (See our legal briefing on Direct Payments and Personal budgets for more details on this). Section K The advice and information obtained during the EHC Needs Assessment must be set out in appendices to the Plan known as Section K. When analysing a Plan it is important to look at Section K. Is all of the up to date information contained in this section? Check back to see that all of the information in this section has in fact informed the EHC Plan. Where the child or young person is in or beyond year 9, the special educational provision, health care provision and social care provision to assist the child or young person in preparation for adulthood and independent living must be included in the Plan in the relevant sections (SEN Reg (3)). 8. Enforceability of an EHC Plan/Challenges Section 42 deals with the duties to secure the provision in an EHC Plan and applies to: The special educational provision; (Section F); The health care provision (Section G).
Page 11 of There are no provisions in the Act creating any duty to secure the social care provision in an EHC Plan. If the Plan sets out welfare services which have been agreed to be provided by social services under section 2 of the CSPDA, then there will be a duty to provide these services under that section. This will only apply if a decision has been made by a local authority that such services are necessary and it only applies to children and young people who are under 18. For young people over 18 the Code says that the care element of the Plan will usually be provided by adult services (See paragraph 9.138 of the Code). In relation to health care provision, this will only have made its way into the EHC Plan if the responsible commissioning group has agreed to it; however if it is in the EHC Plan there is a duty under section 42 for the responsible commissioning group to arrange it. However, it should be noted in this context that where there is health care provision in a Plan, a local authority must secure a re-assessment of a child or young person s EHC Plan where it receives a request to do so from the responsible commissioning body for that child or young person (SEN Reg 23). The local authority must secure the specified special educational provision for the child or young person. This straightforward duty is the reason why the part of the Plan dealing with special educational provision is probably the most important. It creates a direct legally enforceable entitlement. The legal entitlement is only possible to enforce, however, if the EHC Plan is written in accordance with the law and provides detailed accurate information about the difficulties of the child or young person and the provision required to address those difficulties. This is why the special educational provision in the Plan needs to be specified and quantified. It is also the reason why the exercise of going through the evidence to make the EHC Plan correctly reflects the child or young person s special educational needs and the special educational provision to meet those needs is so important. Challenges When a final Plan is issued the parent or young person will be given information about mediation arrangements. Participating in mediation itself is voluntary although compulsory consideration of mediation is required in some cases. If mediation takes place it can be about the health, social care or education aspects of the Plan. If however mediation does not succeed (or is not wanted), then the methods of challenge will depend upon which sections of the Plan the parent or young person is not happy with. If there are issues with more than one section of the Plan then potentially the parent or young person will have four routes to a possible remedy: Sections B (special educational needs), F (special educational provision) and I (placement) can be appealed to the Special Educational Needs and Disability Tribunal (subject to the requirement for compulsory consideration of mediation in most cases);
Page of In relation to Sections C (health care needs) and G (health care provision) the method of challenge will be through the local health care provider s internal complaints process; In relation to Sections D (social care needs) and H (social care provision) the method of challenge will be through the local authority s internal social care complaints process; and In relation to section J (direct payments), the method of challenge is to ask the LA to review its decision. There is currently no clear way in which a parent or young person could challenge the contents of Sections A or E. In relation to section E (outcomes) section 19 (d) of the Act requires an LA to have regard to: (d) the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes In the light of this, the views of parents and young people in particular, about outcomes, should be very relevant and if an LA ignores the comments made by a parent or young person about Section E, that would not be in the spirit of section 19 (d) (or section 19 (a) with its reference to wishes, views and feelings ). A decision of an LA not to take on board comments about Section E may be something a parent or young person would want to challenge. Parents or young people might be able to go to judicial review to look at the decision and how it was reached. When the Children and Families Bill was debated in parliament there were discussions about a possible pilot scheme to look at whether a single point of appeal/redress for all aspects of an EHC Plan was feasible but this has not yet been implemented.