When is a plan not a plan?
Last week I heard that the Local Authority had agreed to write an EHC plan for a child whose family I’m supporting. So far the process has been relatively straightforward, so was this all going to be too good to be true?
Sadly, not all EHC plans are equal. If an EHCP is required, and that is not always the case, generally the child has needs and requires additional provision that is not already in place and is beyond the resources of a mainstream school.
Therefore writing a plan, that describes some of the needs and excludes others, and includes only the provision that is already in place, makes the plan somewhat meaningless.
It’s a bit like being sent a ‘special free ticket’ to an exclusive cinema event, only to turn up and realise that anybody can attend, and your ‘ticket’ isn’t even checked. It’s not worth the paper on which it’s written.
So why might a Local Authority issue a draft plan that isn’t, well, a plan?
In this particular case, the child has needs that generally fall within the remit of the NHS to deliver. The child isn’t yet known to these services, and therefore the Local Authority has claimed it cannot put in interventions for services not currently involved with a child.
It’s difficult to see how the law supports this position.
If we look at the SEN Code of Practice we find the following:
S9.61 covers the principles and requirements that apply to local authorities and those contributing to the preparation of an EHC Plan:
“In preparing the EHC plan the local authority must consider how best to achieve the outcomes sought for the child or young person. The local authority must take into account the evidence received as part of the EHC needs assessment.”
S9.61 means that it cannot ignore some of the evidence provided. Even if the evidence comes from private reports, they are still relevant evidence.
S9.61 is reinforced on P164 in the table “What to include in each section of the EHC Plan:”
Section B “All of the child or young person’s identified special educational needs must be specified.”
S9.68 states
“EHC plans must specify the special educational provision required to meet each of the child or young person’s special educational needs. The provision should enable the outcomes to be achieved.”
And P164 confirms the contents of Section F
“Provision must be specified for each and every need specified in section B. It should be clear how the provision will support achievement of the outcomes.”
In other words, if there is a need, there must be some provision to meet that need in order to achieve the outcomes.
And specifically with regards to services that are provided by NHS or Social Services;
S9.73 “Health or social care provision which educates or trains a child or young person must be treated as special educational provision and included in Section F of the EHC plan.”
S9.76 “In cases where health care provision or social care provision is to be treated as special educational provision, ultimate responsibility for ensuring that the provision is made rests with the local authority (unless the child’s parent has made suitable arrangements) and the child’s parent or the young person will have the right to appeal to the First-tier Tribunal (SEN and Disability) where they disagree with the provision specified.”
In other words, the Local Authority has the ultimate responsibility to make the provision if it is a special educational provision (SEP).
The availability of provision should not be the primary concern when drafting the EHC plan. If the Local Authority is unable to commission the SEP itself, and it is unable to access the services via the NHS, it can put in place a personal budget to deliver the SEP.
