EHC needs assessments & plans
If your child has been receiving extra support for their special educational needs in school for a while, but doesn't seem to be making progress, the local authority can be asked to carry out an Education, Health and Care (EHC) needs assessment. This may lead to your child getting an EHC plan.
Education, Health and Care plans were introduced in 2014, replacing Statements of SEN. The last children and young people to still have a Statement should be transferred to an EHC plan in 2018.
An EHC plan, or EHCP, is a document specifying a child’s special educational needs, outcomes wanted for the child and special educational provision to meet those needs and achieve those outcomes. EHC plans should also include any healthcare and social care needs which relate to the child’s special educational needs and provision to meet these needs too. The local authority has a duty to secure the social care and special educational provision in an EHC plan and the health service (usually the local clinical commissioning group) has a duty to arrange the specified health care provision.
An EHC plan will set out their needs and the provision that should meet those needs in a document that has some legal weight. Your child will need an EHC plan to go to a special school or facility, or to get a major support package if that is what they need to be included in mainstream. So there are some children for whom an EHC plan will be appropriate.
If your child is under five, you may want to try to get an EHC plan if they have severe and complex needs, if you think they should go to a special school for reception year, or if they require specialist early intervention that cannot be provided in their current setting.
If your child is over five, you may want to try to get an EHC plan if they have been getting help through SEN support at school but don’t seem to be making reasonable progress, if they are being excluded or are distressed about school, or you feel they need to move to a special school or facility.
Either the school, you the parent carer, or your child, if they are over 16, can request an assessment. The best requests are made by school and family working together but this may not always be possible.
You can do it by contacting the department at the LA that deals with SEND support – in East Sussex this team is called ISEND, in Brighton and Hove it’s called the SEN team. If you want to be sure this will be recognised as a formal request, put it in writing and refer to Section 36 of the Children and Families Act 2014. Amaze has a template letter you may wish to use.
When the LA receives the request, you will be given the name of a Casework Officer (Brighton & Hove) or Assessment and Planning Officer (East Sussex) in the SEN team/ISEND who will be responsible for your child’s case. They will be the key point of contact for you. However they do not make the decisions. Decisions are made on the recommendation of an SEND panel that meets weekly. The aim of the panel is to make sure the LA make fair and consistent decisions. Panel members may include a manager from the SEN team/ISEND, a senior educational psychologist, representatives from schools, health and social care, and, in Brighton & Hove, a parent.
There are strict time limits about assessment and producing EHC plans. The whole process from request to final plan should take no more than 20 weeks. The first of these time limits is that the LA has up to six weeks to make their decision about whether to go ahead with an assessment.
If you made the request they will contact the school for information. If the school made the request you will get a letter that asks for your views. You need to make sure that the LA are sent enough information at this point to make a sound decision. At this stage they will only be looking at the information sent by you and the school. The legal test here is whether “it may be necessary for special educational provision to be made for the child in accordance with an EHC plan.” So the LA will consider whether all possible SEND support has been provided. We explained in our beginner’s guide to SEND that schools can give up to £6000 worth of SEND help from their own budget. The school will also need to demonstrate that they have been keeping records of the support given, monitoring its impact and meeting with you at least termly to review the school plan. The panel may well turn down a request for assessment if they think the school is not giving this much help, because it could be that the child wouldn’t need an EHC plan if the school did all they should.
By the end of the six weeks the LA will send you their decision. If they decide not to assess, they will give you the reason and you will have a right of appeal. We have a section below about appeals to the SEND tribunal, but before doing this you should talk to your school and your casework officer and get advice from Amaze. Often there is room for negotiation at this point. For example the LA may feel the school have not tried everything because the information the school gave was not clear enough. Or there may be medical evidence that the LA did not know about.
- parents (or young people over 16)
- the school or other education setting
- health professionals involved with the child
- an educational psychologist
- social care in some cases
- anyone else you reasonably request
If you have additional reports about your child, you can attach them as part of your parental advice and information to make sure they are considered, however be aware that the LA is not obliged to accept all the information contained in reports that you have privately commissioned. If there are up to date reports about your child, the LA should use these and not ask for new ones. Your expert knowledge of your child is essential to the process as it will include details that may be unknown to the professionals. Amaze can give guidance about the type of information you may wish to supply at this stage.
During the needs assessment it is important to have regular contact with your SEND Caseworker/Assessment and Planning Officer (APO) so they are clear about the outcomes you want for your child and so that you are involved in decisions that need to be made.
You should be invited to a face to face meeting during this process, sometimes called a co-production or collation meeting, where you will get a chance to discuss your child’s needs with your caseworker/APO, a representative from your child’s school, and sometimes other professionals involved in your child’s care. It is important that the child’s views are represented so you should decide the best way for your child to do so. You may want your child to attend all or part of the meeting if appropriate.
The focus of the meeting is to agree the outcomes you want for your child. Once the outcomes have been agreed the discussion will then be about what provision is needed to achieve them.
If the LA decides an EHC plan is not needed they must write to you by week 16 after the request, explaining the reasons for their decision and your right of appeal against this decision. They should also provide written feedback about the information gathered during the assessment, including all the reports, as this can be useful for you and the school.
If the LA decides an EHC plan is required, they must send you a draft of the plan, together with copies of all the reports they have received from everyone involved. You should receive this by week 16 at the latest. Each LA has chosen the format for their EHC plan but the law sets out the sections which every plan must include. You should ask your SEND caseworker/APO to send you a Word version of the draft as this will make it easier for you to note parts that you need to discuss so that you can email it to the LA.
When the proposed plan arrives, you have only 15 days to think about it and say if you’re happy with it or not. It is very important that you make use of this opportunity to check the plan carefully. Does it describe your child accurately? Are all the outcomes appropriate for your child? Is all the support suggested in the reports mentioned in the plan? Is it specific enough that any school could read it and know what your child needs? Are you happy to agree the personal budget in the plan if you asked for one? (More on this further down.)
At this point, you have the right to request a meeting to discuss the draft plan with an LA officer. Often, parents only ask for a meeting if they have serious concerns with the plan. If you want to make minor changes you should be able to sort these out over the phone or by email. Amaze can offer impartial advice if you want help understanding and responding to the draft plan.
The draft plan will not refer to any school by name, as you have the right to request a particular school or type of school, to be included in the final plan. The LA must tell you where to find information about the schools and colleges that are available for the child to attend. If you name a school then the LA must send them a copy of the EHCP so they can decide if they can meet your child’s needs. If a local school can meet your child’s needs then this may be the one you are allocated. We explain more about this below in the section ‘What is the parent’s role in EHC assessments?’
When you return your comments with the proposed plan the LA will consider them. If the changes are small, and the LA accepts them, they may just be incorporated so that the final plan can be issued. If there are requests for significant changes to be made the LA may issue another proposed plan. You should be given 15 days again to review this amended draft.
By week 18, and once the proposed plan has been agreed, the LA will write the final EHC plan and send it to the school you have named. The school will need to agree that they can meet the needs of your child, based on the information contained in the EHC plan.
By week 20 after the original request, the LA should issue the final EHC plan to you. This will name a school and the amount and arrangements for the personal budget if you opted for this. If you disagree with the final plan you have a right of appeal about some sections at this point: the special educational needs, special educational provision and the school placement. Tribunals have the power to require the LA to make changes to these sections of your child’s EHC plan, and can now also recommend changes to the sections about your child’s health and social care needs and provision. Unlike decisions on the education sections, the LA or CCG is not required to follow these recommendations, but they have to be able to provide a strong justification if they choose not to.
The idea of EHC plans is that the parent and child or young person’s views and aspirations should be at the heart of the plan and shape the outcomes set in the plan. So you and your child should be closely involved all through the assessment.
If your child is under 16 you have the right to be with them at all interviews, medical tests or any other test during the assessment. Sometimes a professional may wish to observe your child in the classroom, or talk to them on their own, but they should tell you that they are doing this.
You also have the right to ask the local LA to get a report from anyone that is reasonable. Once the LA has agreed to write a plan, you have the right to ask about a personal budget. And you have the right to say which school you would prefer your child to go to, although the LA may not always agree with your choice of school.
Find out more about personal budgets from your Local Offer:
- Personal budgets and direct payments – Brighton & Hove Local Offer
- Education Personal Budgets – East Sussex Local Offer
If you have questions about personal budgets or how to choose a school, call Amaze for advice on 01273 772289. For some top tips on getting the most from the EHC plan process, see our EHC plan factsheet [pdf 640kb]. Please note, this factsheet is specific to Brighton & Hove. However, many of the tips may still be useful to families in East Sussex. East Sussex version to follow.
- the school
- the LA casework officer
- a representative from both health and social care if they are involved with the EHC plan.
- other people involved in working with your child can be asked too.
Not everyone will come to every meeting but they should all (including you as a parent) be asked for their written advice and information about the child or young person beforehand, and these reports should be sent to you two weeks before the meeting. It’s important that you have the chance to read all the reports beforehand so that you can think about what you would like to happen at the meeting. If you don’t get them in enough time you can ask to postpone the meeting.
In most cases the school will arrange the annual review meeting and report to the LA afterwards so the LA can complete the annual review process. This is not just a general review – the meeting must focus on your child’s progress towards meeting the outcomes in the EHC plan. Are any changes needed in the support they get to help them achieve those outcomes? Do the outcomes themselves need updating? This is also your opportunity to state what school placement you want for your child. Within two weeks of the meeting the school must send a report to the LA. You should get a copy of the school report so you can check it over to make sure it matches what was said or agreed at the meeting.
Within four weeks, the LA must decide on one of three things:
- To continue with the existing EHC plan
- To amend or change the EHC plan
- To withdraw or ‘cease to maintain’ the EHC plan
If the LA decides to change the EHC plan, there is a process with time limits that allows for you to comment and appeal the decision if you can’t agree. You can also appeal if the LA decides not to amend the plan, or to withdraw the plan, if you disagree with this decision. It is important to realise that an EHC plan can only be changed through the annual review process.
Transfer between phases of education
When your child is due to move from one phase of education to the next (e.g. pre-school to school, primary to secondary, secondary to further education) there are special rules. The annual review must happen in enough time to plan ahead for the move. The EHC plan must be amended by the 15th February of the year the child is due to move if this is into their first school or between schools. If they are moving on to further education, the deadline is 31st March.
The amended EHC plan must name the new school or college. The aim is to allow everyone to plan for a smooth transfer. So for a child coming to the end of primary school, the annual review in Year 5 should talk about what they will need at secondary school so you have time to look at the options. Then a review early in Year 6 should pull this together for the LA to complete the amended EHC plan by 15th February. This leaves plenty of time for liaison between the primary and secondary school, visits, organising staffing or equipment, etc. It also allows time for an appeal if you are unhappy, and for this to be resolved before September.
Preparing for adulthood in annual reviews
From Year 9 onwards each annual review should also focus on preparing for adulthood and look ahead at what will help the young person move towards things like employment and independent living.
This is an important stage for parents and young people and we discuss transition planning in more detail on our section on becoming an adult.
If you feel your child’s EHC plan needs some changes you will usually be able to address this through an annual review. But occasionally there may be circumstances when parents think their child needs a whole new EHC assessment, perhaps because they and the LA are not seeing the child’s needs in the same way. If you or the school request re-assessment the LA have 15 days to say whether or not they agree. If they refuse you have a right of appeal. If they go ahead the process and timescales are the same as for initial assessments.
Before you can lodge an appeal to the tribunal you must prove that you have discussed the possibility of mediation with a mediation adviser. The mediation adviser will issue you with a certificate as proof. However, you don’t have to agree to proceed with mediation following this discussion. This rule is intended to reduce the number of disagreements that go to tribunal that could have been resolved through disagreement resolution and mediation. If you do decide to use these options, it does not affect your right to appeal to tribunal if you aren’t satisfied with the results.
If you and the LA can’t agree, you may decide you have to appeal. The tribunal is an independent body that hears parents’ appeals against LA decisions on statutory assessments and EHC plans. It also deals with some claims of unlawful disability discrimination in education. There are strict timetables for making an appeal and these differ for SEND appeals and disability discrimination claims. It’s important to get advice as early as possible if you are considering appealing.
You can appeal to the SEND first tier tribunal if:
- the LA refuses to assess your child after you or the school have requested this
- the LA decides an EHC plan is not needed after assessing your child
- you disagree with the EHC plan sections that describe your child’s SEN, the special educational provision specified, or the school or type of school named
- you disagree with an amendment to any of these sections
- the LA refuse to re-assess your child
- the LA decide not to amend the EHC plan after review or re-assessment
- the LA decides to stop maintaining the EHC plan
In these cases, the tribunal can change the LA’s decision.
The tribunal can also consider the parts of your child’s plan that relate to their health and social care needs and make recommendations. Although these are not legally binding the LA would need to make a very strong case to not implement these recommendations. You can only raise a social care or health appeal if you have also lodged an education appeal.
Going to tribunal is often a stressful experience and not to be undertaken lightly. It is the last resort for parents who have been unable to resolve matters with the LA in any other way. Parents who decide to go to appeal need to have energy, be well prepared and have access to the best possible advice and support.
While the tribunal encourages parents to represent themselves at appeals and will take care to treat you fairly, many have found it quite a daunting experience. If you cannot find someone able to help you prepare your appeal, you may decide to look into instructing a solicitor but be aware, this can be costly. If you take this route make sure they have a specialism in education law. You may qualify for free legal assistance so be sure to ask about this, and the fees, before going ahead.
If you feel your child has been discriminated against on the grounds of their disability, you should start by complaining to the head teacher and governing body of the school. If this does not resolve the matter, you can make a claim of unlawful discrimination against a school on behalf of your child to SENDIST. Some claims of unlawful discrimination will go to admissions appeal panels or, for exclusions, to independent appeal panels.