We moved home two months ago. Six weeks after we moved we got a letter from the new local authority telling us that they had received a copy of our son’s EHC plan from the old authority and that they would be reviewing it in three months’ time. The letter also said that the local authority had no plans to reassess him. Before we moved, he was getting four hours of specialist teaching and one hour of speech and language therapy in a special school each week. Since we moved he has been getting nothing, despite the fact that we have spoken to the local authority on a number of occasions. Do we have to wait for the review before anything happens? Expand As described in the section about moving to a new LA, the new local authority (“LA”) has a duty to ensure the special educational specified in Section F of his EHC plan is made. The fact that the LA has decided to review the EHC plan in 3 months’ time is irrelevant; they should be making the special education provision now. If it is no longer practicable for your son to attend the school named in Section I of his EHC plan (perhaps because you have moved a considerable distance) then the LA must arrange for him to attend another appropriate school until they review and amend his EHC plan. You should write immediately to the LA to complain – see the section on complaining when the provision in an EHC plan is not being made for more information, and for a model letter you can use to write to the LA. You should adapt the letter to include the information about your move and, if relevant, the fact that the LA must find a school for him until the EHC plan has been reviewed and amended.
Our daughter has started school refusing due to her mental health needs. She has an EHC plan but it doesn’t contain any information about her mental health needs as these have only arisen recently. The school are saying there is nothing they can do as this is a health need and it is nothing to do with them. This week we have received a letter from the local authority threatening us with an Attendance Order and court if we don’t return our daughter to school. We are worried about being prosecuted and fear our daughter will never be able to go back to school. Expand When a child has been refusing to attend school and their behaviour and/or anxiety appears to be worsening both at school and at home, it is important to seek help as soon as possible. There are a number of different issues to deal with. Dealing with the Attendance Order As a first step, you should take your daughter to your GP and explain what has been happening. If the GP (or any medical/mental health professional) feels that she isn‘t currently fit to attend school, ask for a letter to the local authority (“LA”) to be provided, explaining this. Evidence of this type would provide a documented explanation for her non-attendance. The GP should refer her to the Child and Adolescent Mental Health Service (known as CAMHS). The second step is to write to the person or department (which is likely to be the Educational Welfare Service) who threatened you with the Attendance Order, updating them about your daughter’s mental health and explaining that she has special educational needs (“SEN”). Suggest to them that serving an Attendance Order in these circumstances would be premature and inappropriate; and what is needed is co-ordinated action by support agencies to identify and make provision for all of your daughter’s needs. Hopefully, once everyone involved realises that your daughter’s non-attendance is to do with her SEN rather than with you deliberately keeping her away from school, the decision to reassess will be taken quickly and the threat of issuing an Attendance Order will be withdrawn. If the LA continue with the threat of serving an Attendance Order, or actually serve it, you will need to speak to a solicitor who is familiar with education law. You should check if you qualify for legal aid. Getting temporary education put in place Next, you should write to the LA and request they provide alternative education for her whilst she is out of school for mental health reasons. The LA have a legal duty to provide suitable education for children of compulsory school age who are out of school “by reason of illness, exclusion from school or otherwise”, under section 19 Education Act 1996. This education should be full-time unless, for reasons relating to her physical or mental health, it would not be in her best interests for full-time education to be provided. There is statutory guidance for LAs entitled ‘Ensuring a good education for children who cannot attend school because of health needs’. Full-time education is not defined in law, but the guidance states it should equate to what the pupil would normally have in school. It also states that LAs should provide such education as soon as it is clear that the child will be away from school for 15 days or more, whether consecutive or cumulative. They should liaise with appropriate medical professionals to ensure minimal delay in arranging appropriate provision for the child They should not: Have policies based upon the percentage of time a child is able to attend school rather than whether the child is receiving a suitable education during that attendance Have lists of health conditions which dictate whether or not they will arrange education for children or inflexible policies which result in children going without suitable full-time education (or as much education as their health condition allows them to participate in). It is unlawful to withhold or reduce the provision, or type of provision, for a child because of how much it will cost. Therefore, LAs must not have policies that limit a child’s education to a specified number of hours per week due to cost or availability. There is no absolute legal deadline by which LAs must have started to provide education for children with additional health needs. However, the guidance says LAs should arrange provision as soon as it is clear that an absence will last more than 15 days and it should do so at the latest by the sixth day of the absence, aiming to do so by the first day of absence. This should hopefully mean she will not miss out on any more education whilst she is out of school. Amending the EHC plan to get the right support in place Clearly, the support currently in place through your daughter’s EHC plan is not sufficient, as she has been unable to attend school. It may be that she needs more support, or she may need to attend a different school entirely. You should consider asking for a reassessment of your daughter’s SEN. This is because her EHC plan does not include her mental health needs or provision to meet those needs. It will be important for the EHC plan to be updated to include this information. You should tell the LA about the threatened Attendance Order and ask them, in these circumstances, to reach a decision about a re-assessment as a matter of urgency rather than waiting the full 15 days. If you want, you could also ask for an emergency placement to be arranged for your daughter in a special school for the purposes of a reassessment. There is guidance for schools from the Department for Education entitled ‘Mental health and behaviour in schools: departmental guidance for school staff’. This contains guidance on what schools should be doing to identify and support pupils with mental health issues. If the LA refuse your request for a re-assessment, you have the right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”). A note on home education In some cases, parents may be encouraged to make arrangements to educate their child at home and parents often feel pressured into doing this to avoid prosecution for non-attendance. However, elective home education is a serious step. Most significantly, it relieves the LA of the duty to ensure the child receives the special educational provision in Section F of the EHC plan. It may be better to amend the EHC plan to set out different provision and/or name a different school (or ‘education otherwise than at school’) rather than attempting to take on home education without support. See the section on naming a school in an EHC plan for more information. If a child in this situation does not have an EHC plan, it may be worth asking the LA for an EHC needs assessment. What is important is to get everyone involved working together to identify all of your child’s needs and making sure those needs are provided for.
Our local authority is saying now that our daughter is 16 she is only entitled to education over 3 days per week. When we challenged this they said this is the maximum all young people get once they are in post 16 education. We are worried that she’ll spend the rest of the time in her room doing nothing. The local authority say we should get in touch with Social Care and Health to see if they can help. Is it right that she is only entitled to a minimum amount of education? We thought she would be better protected with an education, health and care plan. Expand It is not uncommon for local authorities (“LAs”) to limit the number of hours a young person with an education, health and care (“EHC”) plan receive based on national entitlement applicable to others of the same age. The difference is, when a young person has an EHC plan, the LA must specify the special educational provision which is required and not base this on what a young person of a similar age normally receives in terms of study hours. When young people continue to require education and/or training over 5 days per week, it is important that Section F of the EHC plan specifies this. LAs will often ask young people or parents to seek additional provision to make up for the remaining days through Health or Social Care. However, even if additional provision has been identified through these services, it will need specifying in the EHC plan. If the Health or Social Care provision educates or trains, it is in fact special educational provision and therefore must go into Section F of the EHC plan (see the section on what an EHC plan contains for more information). There is no legal basis for LAs to limit the number of hours a young person with an EHC plan is in education or training based on their age. If this change has arisen because your daughter is due to transfer to college or another post-16 institute, then the LA will need to carry out a review and amend her EHC plan well in an advance of the transfer – see the page on annual reviews when transferring between phases of education for more information. If the LA wants to amend the EHC plan, it will need to send you notice of the changes it wants to make first. It will be important to check what Sections B and F say about her needs and provision requirements. If the LA has already amended the EHC plan and Sections B and F are lacking in specificity, an appeal will need to be made to the SEND Tribunal. The deadline for appealing is two months from the date of the decision or one month from the date of the mediation certificate, whichever date falls the latest. Paragraphs 8.39 and 8.40 of the SEN and Disability Code of Practice contain some helpful guidance on five-day packages of provision for young people: “Where young people have EHC plans, local authorities should consider the need to provide a full package of provision and support across education, health and care that covers five days a week, where that is appropriate to meet the young person’s needs… Five-day packages of provision and support do not have to be at one provider and could involve amounts of time at different providers and in different settings. It may include periods outside education institutions with appropriate support, including time and support for independent study. A package of provision can include non-educational activities such as: volunteering or community participation work experience opportunities that will equip young people with the skills they need to make a successful transition to adulthood, such as independent travel training, and/or skills for living in semi-supported or independent accommodation, and training to enable a young person to develop and maintain friendships and/or support them to access facilities in the local community. It can also include health and care related activities such as physiotherapy. Full-time packages of provision and support set out in the EHC plan should include any time young people need to access support for their health and social care needs.”
I have concerns about my son’s education, health and care plan. The school say there will be an annual review meeting in the next few weeks so I want to know how to best influence the review and get more provision for him. Expand It is important that the EHC plan properly specifies all of your son’s special educational needs (Section B) and the special educational provision (Section F) required to meet those needs. If your son’s current EHC plan lacks detail concerning his needs and provision requirements, the annual review process is a useful tool in trying to influence change to the EHC plan. The first step is to clarify the date of the review meeting. The person arranging the meeting (usually the head teacher) is required to give at least two weeks’ notice of the meeting date, invite specified professionals to the meeting and obtain advice in relation to the child or young person. Any advice obtained as part of the review must be circulated at least two weeks before the review meeting. There is more detail about this on the section on the annual review process. In particular, our annual review checklist contains tips on how to prepare for the meeting and sets out all of the steps that must be followed by the school or college and the LA. An important element here will be the information and advice which should be gathered in advance of the meeting. These can be used to influence change to the EHC plan. If there is a delay in carrying out or concluding the annual review, you can complain to the LA using our model letter. If the LA decide to keep the EHC plan as it is, or to cease to maintain it, you will need to appeal to the SEND Tribunal.
Our daughter has an EHC plan, and has just started year 6. We are worried about which secondary school she will go to. We’ve spoken to her current school and they’ve said we should receive a ‘general preference form’ soon. We’ve had a look at this form online and it says nothing about stating a preference for a special school which is what we believe is what she needs. We thought the process for children with EHC plans was different but the school says it isn’t and we must complete the general preference form in time otherwise there’ll be no places left. Expand Local authorities (“LAs”) have a legal duty to review and amend an education, health and care (“EHC”) plan when a child or young person transfers from one phase of education to another – in this case, from primary to secondary. There is more information about this in the section about annual reviews in advance of a phase transfer. For a transfer from primary to secondary school, the annual review must be completed by 15 February in the year of transfer. You must receive at least two weeks’ notice of the meeting, then within four weeks of the meeting the LA must notify you of their decision to maintain, amend or cease the EHC plan (at phase transfer it will need to be amended to name the new school). They must then send you details of the proposed amendments to the EHC plan without delay, and then finalise the EHC plan within eight weeks of the date they sent you the amendments. In order for the EHC plan to be amended and finalised by 15 February, discussions about transfer need to begin early in the autumn term of the year before transfer to allow plenty of time for the review and amendment process to happen. You can use our model letter to make a complaint if the LA has not begun the phase transfer in time, and request the review meeting is held without delay. As part of the annual review process the LA will send you a notice setting out the changes they intend to make to the EHC plan. You will be able to request the school you want for your daughter. The LA must agree to your request unless one of the exceptions set out in the law applies. If you disagree with the LA’s proposed school, or any other amendments they propose to make to the EHC plan, you can use our model letter to set out your objections. It is important the review is concluded well before the end of year 6, because if the LA do not name the school you want in the final EHC plan, you will need to appeal to the SEND Tribunal. You will want the appeal to be concluded in good time for you to prepare for the September term. It is not uncommon for LAs to ask parents to complete a ‘general preference form’ so their preference(s) can be considered. However, these forms apply to children and young people without EHC plans through separate legislation. Therefore, parents who have children with EHC plans are not required to complete general preference forms. You can find out more about your rights to request a particular school here.
The annual review is due, but we’re involved in an ongoing appeal to the SEND Tribunal about the EHC plan. How does this affect the process? Expand The annual review must take place within 12 months of the last review, or of the date the EHC plan was first issued. This is not affected by an ongoing appeal. As such, the annual review needs to take place. The annual review could be an opportunity to try and resolve some of the issues in dispute. If the LA issues a new amended EHC plan after the annual review, this can be treated as a working document in the current appeal, rather than the parent having to register a new appeal.
If I’ve successfully appealed to the SEND Tribunal and the LA have been ordered to issue an amended EHC plan, does the next review take place a year after the last annual review, or a year after the SEND Tribunal order? Expand The law says the annual review must take place within 12 months of the last review, or of the date the EHC plan was first issued. A new plan being issued following a SEND Tribunal does not re-start the clock. This can sometimes mean the annual review is required to take place shortly after a Tribunal decision. However, if the LA propose to make any changes from what the Tribunal ordered, this must be backed up by new evidence and they cannot remove provision ordered by the Tribunal simply because they disagree with it.