Education, Health and Care Plans [often referred to as an ‘EHC Plan’ or simply ‘EHCP’] will replace the Statement of SEN. The EHCP will also replace the Learning Difficulties Assessment [which applies in some post-16 settings]. The EHCP is a legal document, setting out the support that a child needs, in the same kind of way that a Statement does.
Prior to September 2014, children or young people beyond the age of 16 could only have a Statement if they were educated in a school. Under the new SEND Code of Practice, children or young people up to the age of 19 can have an EHCP providing that they remain in education or training [including apprenticeships]. In some cases, this can be extended up to age 25.
Young people who are going to university or become employed will not be eligible for an EHCP.
1.2 Who will get an Education, Health and Care Plan?
The Department for Education has said that any child or young person that currently has a Statement will have an EHCP. Any young person between the ages of 16 and 19 who currently has a Learning Difficulty Assessment may also have an EHCP. The Department for Education has been very clear that no child or young person should have their Statement or Learning Difficulty Assessment replaced by an EHCP simply because the system is changing.
Department officials have stated that the ‘trigger’ for the new EHCP will be education. This means that if a young person has a health or social care need, they will not get an EHCP unless these needs impact on their education.
1.3 How will the assessment work?
Section 9 of the new SEND Code of Practice sets out how the Department thinks that assessments should be carried out. Some of the key points made include:
- The views of children, young people and their families must be sought and they must be involved during the assessment process;
- Disruption to the family should be minimised. This includes avoiding multiple assessments and appointments. There should also be a ‘tell us once’ approach so that families do not have to repeat the same information to different professionals;
- Families should be provided with impartial information, advice and support. In the case of young people over the age of 16, a separate service of impartial information, advice and support should be available to them. Young people should also be provided with an ‘advocate’ by the local authority to make sure that their views are heard and acknowledged;
- The assessment process should be carried out in a ‘timely’ manner and it should not normally take longer than 20 weeks to issue an EHCP.
In Lincolnshire, to access an EHCP needs assessment parents, or the young person, should send their request to the local authority in the form of a letter or email:
- Post: Lincolnshire County Council, SEND Team, 9/11 The Avenue, Lincoln, LN1 1PA.
- Email: SENDenquiries@lincolnshire.gov.uk
To support parents and young people during the assessment process, Lincolnshire provides an Information, Advice and Support Service [IASS], formerly called the Parent Partnership Service.
The IASS works at ‘arm’s length’ to the Local Authority and Health Services, with independently trained staff. ‘Arm’s length’ means; acting impartially without undue influence.
The IASS provides information, advice and support for all children/young people [0-25 years old] with SEND and their families, not just those with an Education Health and Care Plan. Information, advice and support can be offered regarding the law related to SEND Education Health and Social Care law, including local policy and practice, the local offer and personal budgets.
The IASS offers support face-to-face, by telephone or online. It can also provide informal disagreement resolution if a family reaches a time when this more formal process is needed.
- The IASS can be contacted at www.lincolnshireparentpartnership.org.uk or telephone 01522 553351.
An advocate helps parents, children and young people to express their views and, if necessary, can represent and accompany them to meetings in a supportive role. They may write letters on behalf of an adult or young person, or speak on their behalf in situations where they feel unable to speak for themselves.
- In Lincolnshire, for an advocate to support a young person up to 18yrs old, contact the National Youth Advocacy Service [NYAS] via www.nyas.net, email email@example.com, or the freephone helpline 0808 808 1001.
- For an advocate to support to support a young person over 18yrs [and/or parents], contact Voiceability via www.totalvoicelincolnshire.org or telephone 01522 706580.
1.4 What will an Education, Health and Care Plan look like?
Section 9 of the new SEND Code of Practice sets out how the Department expects local authorities to go about writing an Education, Health and Care Plan. Some of the key points made include:
- EHCPs should be focused on the outcomes an individual child is expected to achieve. Any targets must be specific and set out what support is needed to achieve those outcomes;
- EHCPs should be clear, concise and positive. They should also be free from jargon;
- It should reflect the views of the child or young person.
Although the Department does not intend to put forward a set template or format for the new EHCP, it must include separate sections on:
- The views, interests and aspirations of the child or young person and family [section A];
- What the special educational need is [section B];
- Any health needs relating to their SEN [section C];
- Any social care needs relating to their SEN or disability [section D];
- The outcomes sought for that individual child or young person [section E];
- What support is needed for the child or young person’s SEN [section F];
- What support is needed from health or social care services [sections G and H];
- The name and type of school or other placement [section I];
- Personal Budgets [see later for more information on Personal Budgets] [section J];
- Advice and information gathered during the assessment [section K].
The new Code [after paragraph 9.69 on page 164] includes more information about what should go in each of these sections.
A blank EHCP template from the City of York Council can be viewed here. This is currently one of the only examples freely available, and is not necessarily representative of how EHCPs from other local authorities will look – although the content/layout should follow a broadly similar format across the country.
The EHCP can also include wider information about a child’s social care needs. If a child or young person has received a social care assessment under what is known as the Chronically Sick and Disabled Persons Act, then any support identified as needed under this assessment must be included in an EHCP. Other social care assessments can also feed into the EHCP, providing that it relates to the child’s special educational need. Steps should be taken to ensure sensitive information, including about particularly vulnerable children, is not disclosed more widely than it needs to be.
1.5 Who will prepare the Education, Health and Care Plans?
Local authorities are encouraged to adopt a ‘key working’ approach whereby the family has a single point of contact. A key worker’s role is usually to support the family by liaising with the different professionals involved in any assessments of the child and to co-ordinate everything.
In Lincolnshire, a SEND ‘key working’ service is provided by the Early Support Care Co-ordination Service [ESCO]. This service provides a single point of contact for children/young people and parents to help co-ordinate early engagement and support of relevant services across education, health and care. This service is for any child/young person with SEND and their families, with or without having an Education, Health and Care Plan in place. Early Support is a way of working that helps to identify children/young people’s additional needs as early as possible.
- ESCO can be contacted via www.lincolnshire.gov.uk/esco or telephone 01522 782111.
The new SEND Code of Practice also indicates that families may, in addition, receive support from an ‘independent supporter’ from the voluntary or private sector. Independent supporters are intended to help families through the process, and would be someone who does not work for the local authority. The nature of the support provided is likely to vary from family to family. The Department has funded the Council for Disabled Children to ensure families have access to Independent Supporters across England.
Some more information about Independent Supporters is available on the Council for Disabled Children website at: www.councilfordisabledchildren.org.uk/what-we-do/independent-support
1.6 How will an Education, Health and Care Plan be enforced?
Existing statutory rights will remain and, in many respects, you will be able to challenge an EHCP at a SEN and Disability Tribunal in the same way that you might challenge a Statement. You will also be able to challenge a local authority decision not to replace a Statement or Learning Difficulty Assessment with an EHCP. Annual reviews will continue as they do now.
One key change is that parents will be required to consider mediation if they would like to challenge a local authority at a SEN and Disability Tribunal. Once a parent has decided whether or not to undergo mediation, they can take a case to Tribunal but this can only happen after a ‘certificate’ has been issued by a mediation adviser to confirm that mediation was considered. Mediation can consider the health and social care aspects of an EHCP, as well as education.
The mediation or any discussions about it must be conducted with someone ‘independent’ from the local authority. The Department has been clear that any disputes must still be resolved within the same timescales, even where mediation takes place.
Mediation is not necessary if the appeal to Tribunal is about disability discrimination or about a dispute over whether a child should go to a particular school or placement.
Another key change is that, if you move, then the EHCP can be ‘transferred’ and the local authority in your new area will be required to provide the same support as in your previous home area. However, if your Statement requires your child to be placed in a certain school, this can be reviewed, particularly if you now live some distance from the school.
1.7 Will an Education, Health and Care Plan provide legal entitlements to speech and language therapy?
Currently, speech and language therapy can be treated as educational provision even though it is often provided by health services. Judges have agreed that speech and language therapy is vital for children with SEN. This is legally set out in ‘case law’.
The Department for Education has stated that this will continue to be the case. Where a health or social care service has the purpose of educating or training a child or young person, it must be regarded as special educational provision, even if it is not provided by an education service. This should mean that local authorities must legally ensure this is provided if it is set out in an EHCP.
More widely, there are no new direct powers against health services under the current proposals. However, the Department has set out a number of ways in which it expects health and education services to work together and ‘jointly commission’ the services that children with SEN need.
1.8 What will happen to an Education, Health and Care Plan when my child turns 16?
Under the new system, at age 16 your child will become responsible for their EHCP and local authorities are expected to engage directly with your child, unless they believe that your child does not have the ‘mental capacity’ to make informed decisions. The new Code recognises that many young people will still wish to involve their parents in any decisions on their EHCP. The Code also stresses that young people must receive the information, advice and support they need to participate in decisions about their EHCP.
2. Turning a Statement of SEN into an Education, Health and Care Plan
2.1 My child has a Statement of SEN. Will they get an Education, Health and Care Plan?
Most likely, yes. The Department for Education has said that all children who are eligible for a Statement of SEN should also be eligible for an Education, Health and Care Plan. The only cases where existing children and young people might not change over to an EHCP is if:
a] His/her needs have significantly changed.
b] Your child is no longer in education or training before the planned changeover.
No ‘new’ Statements can be issued after the 1st September 2014 [unless your child was already being assessed for one immediately before that date], and all Statements must be changed over to an Education, Health and Care Plan by April 2018.
2.2 My child has a Statement of SEN. When will this change over to an Education, Health and Care Plan?
Local authorities will have some flexibility for how they move children over to the new system. However, the Government has made it clear that they expect children and young people to move over at key ‘transition’ points.
In the below table, we summarise our understanding of what should happen:
|Stage your child is at||What Should Happen|
|Child is transferring from early years setting to school, i.e. going into reception year [including staying in the same institution] from September 2015.||Local authority must transfer your child to the new arrangements [i.e. an EHC Plan] before he/she moves to the school.|
|Child is transferring from infants to juniors from September 2015.||as above.|
|Child is transferring from primary to middle school from September 2015.||as above.|
|Young person is in Year 11 from 01/09/2014 onwards and moving to a post-16 institution or apprenticeship.||Local authority must transfer him/her to the new arrangements.|
|Young person is in Year 11 from 01/09/14 onwards and staying in school.||Local authority will be expected to transfer him/her to the new arrangements.|
|Child is transferring from primary to secondary school in September 2015.||Local authority will be able to consider whether to transfer children in Year 6 but must take into account the families’ wishes.|
|Child is transferring from primary to secondary school from September 2016 onwards.||Local authority must transfer them to the new arrangements before the move to secondary.|
|Child is transferring from middle to secondary school from September 2016 onwards.||As above.|
|Child is in Year 9 in the academic year 2014-2015.||Local authority will be expected to transfer them to new arrangements in Year 9.|
|Child is in Year 9 from September 2015.||Local authority must transfer them to new arrangements in Year 9.|
Local authorities are expected to publish ‘transition plans’ which set out how they will move over children and young people with statements to Education, Health and Care Plans over the next 3½ years. These should be available on your local authority website by 1 September 2014.
The Department for Education has published guidance on how the changeover should happen at: https://www.gov.uk/government/publications/send-managing-changes-to-legislation-from-september-2014
2.3 How will the changeover happen?
Local authorities should carry out a transfer review for each child/young person being moved. This will take the place of an annual review. The young person and parent must be invited to this transfer review.
This will involve an assessment of your child’s needs under the new framework. Local authorities are expected to avoid asking for information that they already have. The transfer review will conclude when you have been issued with a final Education, Health and Care Plan to replace the Statement.
During this period, your rights to appeal [if you are not happy with the EHCP] remain and are similar to those that are in place already in relation to Statements.
2.4 My child was being assessed for a Statement just before the 1st September 2014. Will they now get an Education, Health and Care Plan?
This depends on the local authority. The local authority can now treat this as an assessment for an Education, Health and Care Plan, with your agreement. However, they do not have to and, particularly if the assessment process is at a late stage, they may still issue a Statement instead.
2.5 I don’t want to wait. Can my child get an Education, Health and Care Plan sooner?
You can ask the local authority to carry out a transfer review. Your local authority may agree to move your child to an Education, Health and Care Plan sooner. However, they do not have to. The Government has said that it’s for local authorities to decide when the changeover happens and parents or young people do not have any legal rights to make this happen sooner.
If your child’s needs have changed, then you still have the right to request a re-assessment of their needs. Hopefully, the local authority will agree to carry out a transfer review. However, again they do not have to. Instead, they can choose to carry out a re-assessment with reference to the ‘old’ SEN laws around Statements.
Even if the local authority does not agree to changeover your child to an Education, Health and Care Plan, they will still have to follow the ‘old’ SEN framework. Existing rights and protections will remain in place until your child moves to the new system.
2.6 What happens if my child already had an Education, Health and Care Plan before the 1st September 2014?
Many of these existing ‘pilot’ Education, Health and Care Plans were made before the Government had made a final decision on what they should look like. The Government has therefore said that existing Plans should be checked to make sure that they meet the new laws and requirements. This should happen relatively soon after September 2014 and before August 2015.
3. Turning a Learning Difficulty Assessment [‘LDA’] into an Education, Health and Care Plan
3.1 My young person has a Learning Difficulty Assessment. How will the changeover happen?
In section 2 [above] we outlined how the changeover from statements to Education, Health and Care Plans will work. Much of the same also applies to the changeover from Learning Difficulty Assessments to EHCPs. The main difference is that the changeover period is shorter. All Learning Difficulty Assessments [LDAs] should be transferred by 1st September 2016.