April 2018

The non-statutory EHC plan – a rose by any other name?

One of the key drivers behind the Children and Families Act 2014 (“CAFA 2014”) was to place a child or young person with special educational needs at the heart of a well understood and efficiently operated statutory framework of support. A framework which the child or young person, along with their parents or carers, could easily understand and help to shape to fit that child or young person’s education, health and care needs. A key part of this framework is the Education, Health and Care plan (the “EHC Plan”): a legally enforceable document setting out, amongst other things, the special educational provision which a local authority must, by law, secure for the child or young person. EHC Plans have replaced Statements of Special Educational Needs (“Statements”).

Only a (admittedly growing) minority of children and young people with special educational needs will require provision to be secured by an EHC Plan but CAFA 2014 prescribes the process of obtaining and the content of the EHC Plan in detail. The CAFA 2014 also did away with the ‘Note in Lieu of a Statement’ – a non-enforceable document which was essentially a step down from a Statement. Notes in Lieu were the source of much confusion to parents and carers as they were often drafted to look just like Statements, so it was sometimes unclear whether a child had a Statement or not.

One of the problems frequently facing our volunteers, across the services which IPSEA offers to parents and carers, is where a parent or carer seeks advice about an EHC Plan but it isn’t clear if what they are describing is, in fact, an EHC Plan or… something else.

How does this happen?

It’s partly because CAFA 2014 allows each local authority to develop its own format of EHC Plan. Content must be divided into certain mandated sections, but how these sections are arranged or whether the local authority chooses to add in its own sections is left to them to decide.

It’s also because sometimes local authorities are not as careful about version control as they could be: it’s understandable (if unlawful) for departments under pressure from increasing demands at times of staff reductions to forget to delete “draft” from the final version (or to send the final version at all). Local processes sometimes see “skeleton” draft plans or “pre-draft” draft plans issued as part of the process of finalising an EHC plan. 

Sometimes a final EHC Plan will be issued but without the legally mandated notice which must accompany it under CAFA 2014 (either there is no notice at all or the notice misses key statutory information such as details of the mediation service or of the deadlines for appeal).

In such circumstances, it is easy for parents and carers to lose track of documents or where they are and difficult to establish if a lawful EHC Plan is in existence.

However, it’s also because a new generation of Notes in Lieu are emerging around the country. Sometimes, the way these are formatted and developed makes it very easy for parents, carers and young people to believe they have an EHC Plan. For others, although they know it’s not an EHC Plan, as used to be the case with the Note in Lieu, they are under the impression that the document they have is just as good as (or even better than) an EHC Plan.

What’s the problem?

The My Big Fake Plan

An EHC needs assessment is carried out, information and advice is sought from various professionals, there are meetings with the local authority and the school and a plan, with sections A to K in it, is developed. At the end of the process the decision is to issue this plan.

However, perhaps the parent or young person isn’t happy with the description of needs or the provision set out in the plan. Perhaps, sometime down the line, the school or college stops making the provision in the plan. The parent, carer or young person seeks advice about how to deal with this problem: how to appeal or how to get the provision implemented.

At this point it becomes clear that what they were given was not an EHC Plan but My Big Fake Plan.

This type of non-EHC Plan is characterised by its close resemblance (in form, content and the process that was used to create it) to an EHC Plan. It’s also characterised by the fact that at no point was it made expressly clear to the parent, carer or young person that the local authority was in fact refusing to issue an EHC Plan and instead offering something different. As a result the parent, carer or young person has received no notice of their right of appeal against that refusal in accordance with CAFA 2014.

This is, obviously, a completely unlawful way to proceed but some local authorities have come to the attention of the Department for Education and the media for doing this. Local authorities engaging in this type of behaviour are at risk of litigation and such practice should be drawn to the attention of OFSTED (for the purpose of informing local area SEND inspections) and the Department for Education. IPSEA’s policy team will also act on evidence of this type of practice.

The “Equivalent” EHC Plan

Here, the parent, carer or young person is aware that the plan they have is not an EHC plan and usually it’s clear from the name: it’s a pupil resource agreement (Bromley); a SEN support agreement (Hampshire); or a Provision Map (East Sussex). This isn’t always the case: some are called My Plans (Sheffield).

Information about these types of plan or agreement is usually available on the Local Offer website.

However, there may still be some confusion on the part of parents, carers and young people about the effect of the agreement or plan and its equivalency to an EHC Plan. Sometimes this arises because of misinformation in the Local Offer: for example some suggest that they are as good as EHC plans because they attract the same level of resource as an EHC plan would; or because it’s quicker to access extra resources via this type of arrangement.  Sometimes it’s suggested that these agreements are a stepping stone to an EHC plan and have to be tried first.

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

Agreements of this type can be very helpful in ensuring that resources (and a clear understanding of what is to be done with them) are provided for a child or young person with special educational needs. 

It might be a useful way of documenting what’s been found out during an EHC needs assessment where (having obtained all the information and advice from the persons listed in Regulation 6(1) of the SEN and Disability Regulations 2014 (as amended) (the “SEN Regs”)) the local authority has determined under s.37 CAFA 2014 that it’s not necessary for special educational provision to be secured under an EHC plan.

Where would a ‘non-statutory plan’ not be appropriate?

Problems arise when these types of document are used as a barrier to accessing the statutory processes and rights of CAFA 2014. Local authorities need to be absolutely clear, in the way they use these non-statutory documents, that the non-statutory plans and resources are simply a mechanism for delivering SEN Support as defined in the SEN and Disability Code of Practice 2015. 

Where a child or young person’s special educational needs are not properly known or understood or where there is a question about whether the provision required can or will be delivered by SEN Support (whether via a non-statutory plan or otherwise), then parents, carers and young people need to know how to request an EHC needs assessment and, possibly, obtain an EHC plan. 

If a local authority refuses to issue an EHC plan and proposes a My Plan or a resource agreement instead, notice of a refusal to issue an EHC plan must be issued. It isn’t possible for a local authority to “transfer” or “convert” a statement or EHC plan to a non-statutory plan. In such circumstances, what the local authority would be doing is ceasing to maintain the statement or EHC plan and must notify parents, carers and young people of this in accordance with the statutory requirements of CAFA 2014 and SEN Regs.

And no parent, carer or young person should be under the impression that this type of SEN Support is the same as or equivalent to an EHC plan: it may be exactly what is required to ensure that the child or young person’s special educational needs are met where these are well understood. However, it will not deliver enforceable education, health or social care provision.