The LA agreed to do an EHC needs assessment but now it's complete we’ve been told the LA is going to make a ‘My Plan’ for our daughter. This looks like an EHC plan but the information accompanying it says it is ‘non-statutory’. What does this mean?

Does our daughter have an EHC plan?

When your local authority (LA) completes the EHC needs assessment it must decide whether to make and maintain an EHC plan. If the decision is not to make an EHC plan they must notify you of this, and of your right to appeal this decision to the SEND Tribunal.

Some LAs send this notification with a document which looks like an EHC plan, but isn’t. Sometimes the LA’s notification letter won’t make it clear that it is not an EHC plan, or that a decision has been made not to issue an EHC plan, or that you have a right of appeal. This can be very confusing, and does not follow what the law says about what information LA decision letters must contain.

A ‘non-statutory’ plan might be called something like a ‘My Plan’, a ‘[name of LA] Plan’, a ‘Pupil Resource Agreement’ or an ‘SEN Support Agreement’. It might even be laid out in a similar way to an EHC plan, with sections A to K. Your LA might suggest to you that this document is ‘as good as’ an EHC plan because it attracts the same level of resources as an EHC plan would, or because it’s quicker to access extra resources through this type of arrangement. Your LA might suggest that this is a stepping stone to an EHC plan that has to be tried first (this is not true).

However, it is very important to know these are called ‘non-statutory’ documents because they carry no legal entitlements or duties. This means they do not have to be followed by anyone involved with your child.

EHC plans carry important legal rights and duties under the Children and Families Act 2014. These include rights to:

specified provision which must be delivered and cannot be withdrawn unless the EHC plan is formally amended

choose which school or college your child goes to (subject to certain conditions)

have an annual review, and

appeal to the SEND Tribunal in the event of certain disagreements.

None of these legal rights apply if you have a non-statutory document, such as a My Plan, instead of an EHC plan.

If you’re not sure, ask your LA to clarify in writing whether the document it has sent you is a formal, legally binding EHC plan, or something else.

If the LA has issued you with a non-statutory plan, this means it has made a decision not to issue an EHC plan. It will be important to consider appealing against this decision. The deadline to appeal is two months from the date on your LA’s decision letter or one month from the date of your mediation certificate, whichever date falls later.

When might a ‘non-statutory plan’ be useful?

Non-statutory plans are simply a way to deliver SEN support. You can find out more about SEN support on our pages about how your nursery, school or college should help, and in the Special Educational Needs and Disability Code of Practice 2015 (in chapter five for early years settings, chapter six for schools and chapter 7 for further education settings).

If during the EHC needs assessment, your LA got all of the information and advice the law says it must and has lawfully decided that your child does not need to have special educational provision made for them through an EHC plan, then a non-statutory plan might be a useful way of documenting what was found during your child’s EHC needs assessment. Although non-statutory plans are not legally binding, they may be helpful in making sure that the school or college has a clear understanding of what resources your child needs and what should be done with them.

If you believe that your child does require an EHC plan and you decide to appeal to the SEND Tribunal, the non-statutory plan setting out her needs and provision requirements could actually be helpful to use as part of your appeal, if it helps to indicate that she has needs which require more provision than can be provided out of the school’s own resources.