July 2019

The Department for Education has published the latest statistics in relation to statements of SEN and EHC Plans. The number of EHC plans has continued to increase – with the greatest increases seen in the cohorts of those aged 0-5 and 20-25 (two groups which the Children and Families Act 2014 (“CAFA 2014”) was intended to benefit).  However, the number of new plans issued within the statutory deadline (of 20 weeks) has fallen.  The data has been broken down by local authority and shows that whilst some areas get all their assessments completed within the timescales, some areas are getting fewer than 2 in 100 plans issued within this time frame.

Delays in the EHC needs assessment process is a problem that IPSEA’s volunteers frequently hear about on calls. Delays in issuing new plans means delays in children and young people receiving the special educational provision they require.  You can find out information about the EHC needs assessment process and the statutory deadlines here. We have model letters which can be used to complain when local authorities fail to comply with the statutory deadlines (at week 6 or week 16 or 20) or conduct the assessment properly.

For the first time, the Department for Education has published data on the number of children and young people it describes as “Awaiting provision” meaning: “[…]children and young people who are awaiting the provision specified on their EHC plan. This includes some children and young people who are in an education setting but are awaiting provision in another setting, for example, those currently attending a mainstream school and awaiting provision in a special school. This also include some children and young people who are not currently in an education setting but are awaiting placement”. There were 3,486 children and young people in this predicament. 775 of these were waiting for a place at a different school.  1,203 children of compulsory school age or below were without a placement, waiting for one.

There should be no children or young people with EHC plans “awaiting provision”.  A parent or carer of a child or young person “awaiting provision” might want to take advice.  The links below will take you to the relevant pages of our online resources.

It’s not clear from the statistics what’s going wrong here but some key legal facts need to be understood:

1. The local authority has a duty to name either an appropriate school or institution or an appropriate type of school or institution in Section I (Regulation 12 SEN and Disability Regulations 2014)(information about education otherwise than at a school or institution is available on our website);
2. At the point that a draft (or proposed amended) EHC plan is issued, parents or young people have a right to request that a particular school is named. Where a parent or young person requests that a school or institution which is a maintained school (special or mainstream); an Academy (special or mainstream); a non-maintained special school; an institution registered under s.41CAFA 2014; an institution within the FE sector in England;  or,  a maintained nursery school, the local authority must name that school unless an exception under s.39(4) CAFA 2014 applies (and “the school is full” is not one of those reasons);
3. If a school or institution which is one of the above named types is named in an EHC plan it must admit the child or young person (s.43 CAFA 2014) – failure to do so is a breach of statutory duty;
4. From the date the EHC plan is issued the local authority must secure the special educational provision in the plan (s.42 CAFA 2014) – failure to do so is a breach of statutory duty;
5. Under s.19 Education Act 1996, local authorities must secure suitable, full-time alternative education: “for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them”.

The Department for Education states that 27,600 statements were transferred to EHC plans between 18 January 2018 and 31 March 2018. There is no data to say when these transfers began, but IPSEA has concerns, arising from our casework and training, about whether EHC needs assessments were conducted lawfully (or at all) when statements were being transferred to EHC plans. IPSEA has information on how to seek changes to an existing EHC plan.

100 statements were not transferred by the deadline of 1 April 2018. IPSEA is aware that a number of local authorities have a backlog of these and those families whose children or young people still have a statement of SEN can access our information online or may wish to seek legal advice from a solicitor.

There was also an increase in the number of personal budgets in place for EHC plans. We have information about education personal budgets and direct payments.

Those children and young people who require special educational provision to be secured through an EHC plan are, by definition, the most vulnerable in our education system.  After nearly 5 years in force, local authorities are well aware of their statutory duties under CAFA 2014.  Hopefully, the data published by the Department for Education will provide an impetus to improve those areas where too many children and young people are being let down by a failure to follow the law.