It is the final form of an EHC plan which creates the entitlements of a child or young person with SEN to the provision contained within it. Proposed plans may go through various versions and drafts but it is the final form of the EHC plan which matters and about which the parent/young person has rights of appeal.
Once the LA has consulted with parents or the young person about a draft EHC plan, the LA must finalise the EHC plan. This must happen within a maximum of 20 weeks from the initial request for an EHC needs assessment being made.
A final EHC plan will name both a type of school/college and usually name an actual school/college. Once named in an EHC plan the school/college must admit the child or young person and put the educational provision in the EHC plan into place. This can happen even if the school/college argued at the draft plan stage that the child or young person should not be placed with them.
When a final EHC plan is issued the parent/young person has a right of appeal to the SEND Tribunal about:
All of these elements can be appealed either together or on their own.
Challenges of the social care needs section or social care provision specified in the EHC plan will need to be made using the LA’s internal complaints procedure.
Challenges to the health care needs or provision specified in the EHC plan will need to be made using the complaints procedure the local Clinical Commissioning Group responsible for the health care provision in the plan.
Once an EHC plan has been finalised it is important to know who has the legal duty to ensure the provision it contains is delivered.
A Local Authority has the legal duty to ensure that the special educational provision specified in section F of the EHC plan is delivered. They may well expect the school or college named in the EHC plan to do this for them but ultimately if the school/college does not have the resources to do this – either the finance, specialist equipment or expertise – the LA must provide it. This includes any therapies such as speech and language therapy, occupational therapy or physiotherapy or the services provided by CAMHS (Child Adolescent Mental Health Service) which are needed for education or training purposes. The LA may well arrange that these are delivered by the local health care partner but if they are not able to do so the legal duty remains with the LA to arrange them – possibly from an independent therapist.
Health care provision specified in section G of the EHC plan is the legal duty of the local Clinical Commissioning Group or responsible commissioning health body to provide.
There is no separate legal duty in the Children and Families Act 2014 to deliver social care provision in the plan. In the case of those under 18, social care provision which is being provided under the Chronically Sick & Disabled Persons Act 1970 must be set out in Section H1 and must be provided by the LA under that Act. For a young person over 18, the care element of the plan may be provided by adult services under the Care Act 2014.
No one has responsibility to ensure that the outcomes contained in the EHC plan are achieved.
Our Tribunal Helpline Gives next step advice on SEN appeals and disability discrimination claims to the Special Educational Needs and Disability Tribunal. When you call we will also assess whether you need casework support. Please click here to book an appointment to get one of our advisers to call you back.