Can an Education, Health and Care Plan (EHCP) help my child after a brain injury?

16 July 2021

Leanne Tattam, Partner at Birchall Blackburn Law, explains why an EHCP is so important and how incredibly helpful it can be.

Can an Education, Health and Care Plan (EHCP) help my child after a brain injury?

16 July 2021

Leanne Tattam, Partner at Birchall Blackburn Law, explains why an EHCP is so important and how incredibly helpful it can be.

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Can an Education, Health and Care Plan (EHCP) help my child after a brain injury?

If your child has a brain condition, however it has occurred, it is extremely likely they will require more support than can be provided by mainstream school or college resources. Various professionals involved with your child may therefore suggest obtaining an Education, Health and Care Plan (EHCP). This may seem daunting, and you may have fears that your child will somehow be labelled as a result of this but in this article, we aim to show why a EHCP is so important and how incredibly helpful it can be.

What is an Education, Health and Care Plan (EHCP)?

An EHCP is a legal document that identifies your child or young person’s educational, health and care need and sets out in detail the additional support required to meet those needs.

It is a contract between the Local Education Authority, Health and Social Care and you as the child’s parents (or a young person if your child is aged between 16 and 25-years-old) that should provide a clear structure of support for any difficulties your child or young person has. It should identify what must be put in place to help your child or young person and the outcomes looking to be achieved. It should also feature a clear timeframe for those outcomes and be reviewed annually.

Anyone, including a parent, guardian, carer, family friend, teacher, health professional or the young person (aged 16 to 25), can ask for an assessment for the purpose of putting an EHCP in place. As such if the school raise any objections to getting an EHCP put in place you can do so yourself. Determination is key!

Why is an EHCP important?

There are many reasons why an EHCP is a positive and important document, but one of the main benefits is that it is a legally-binding contract. Because of this the Local Authority is legally obliged to ensure all the provisions of an EHCP are carried out and fund them, if necessary. If the Local Authority fails to do so, then you, as the child’s parents, or the young person, have the right to take the matter to Tribunal and / or Judicial Review.

What does a good EHCP look like?

An EHCP is made up of eleven sections (A to K) that cover your child or young person’s education, health and care needs. Below are all the sections contained within an EHCP:

A. The views, interests, and aspirations of your child or young person and your own
B. Describes your child or young person’s special educational needs
C. Sets out your child or young person’s health needs
D. Details your child or young person’s social care needs
E. States the outcomes sought for your child or the young person
F. Describes the special educational provisions required by your child or the young person, which your Local Authority has a duty to provide
G. Outlines any health care provisions reasonably required for the learning difficulties and disabilities that result in your child or young person having special educational needs, which your area’s Clinical Commissioning Groups has a duty to provide
H. Lists any social care provision
I. Names the educational placement your child should attend
J. Arrangements for personal budget
K. Highlights any advice and information

The key sections when it comes to educational needs are B, E, F and I. Provisions within Section F are there to meet your child or the young person’s needs as set out in Section B. Section F’s provisions are also required to meet and achieve the outcomes detailed in Section E. Section I will name the school or other educational setting for your child or young person to attend.

Let us look at each one in turn.

Section B

This section should list all your child or young person’s special educational needs. It should be detailed, specific and quantifiable.

The section should simply set out, with as much detail as possible, what your child or young person’s special education needs are. For example, for children with neurological conditions affecting their brain this could be tiredness, lacking attention or concentration, problems processing what they have been told or retaining it (i.e. memory issues), problems interacting with others, communication problems, limited capacity to analyse and plan, issues with coordination, difficulty controlling emotions, and medication needs.

The section should not include statements about what your child or young person requires to address their special educational needs (for example, this child needs a speech therapist or additional time during exams). This should be covered within Section F.

The more detailed and well-informed Section B is, the better the provisions your child or young person should receive. It may therefore be beneficial, if at all possible, to have someone from your child’s school attend the discharge planning meeting before your child leaves hospital, if they are already old enough and have started school at the time they develop their brain condition. This way they will hear from the healthcare professionals first-hand what difficulties your child may now have.

Section E

This section should list the outcomes desired for your child or the young person. An ‘outcome’ is the benefit or change made because of the additional support for their needs. The section is important because it provides the goals and benchmarks by which a school, educational professional, parent or the young person can measure whether progress has been made or that an outcome has been achieved.

The section should only list the outcomes and not the method for achieving the outcomes (for example, to be able to communicate their wants and needs effectively, rather than listing how that will be achieved through speech therapy and psychological intervention).

The outcomes should be:

  • Clear, specific and detailed
  • Tangible and measurable
  • Achievable
  • Realistic
  • Given a deadline and / or timetable so that they are time specific

You will often hear these referred to as SMART goals or outcomes.

It is important that the outcomes are not all focused on one area of concern. The purpose of an EHCP is to give your child or the young person a rounded education and training that prepares them for adulthood, what they want to do in the future (e.g. further education, employment, independent living), and to live a good life. An EHCP that purely focusses, for example, on mobilising independently but does not help your child develop their speech and communication skills is probably not that helpful to them later in life.

There is no limit on the number of outcomes that can be included in the section and in some ways the more there are the more there is to review and track progress, which therefore makes it easier to see areas that may need more input.

The section should be revised and updated to meet your child or young person’s needs throughout the life of the EHCP. A review must take place at the end of the academic year, at key stages and before starting a new phase in education (e.g. secondary school or college). All key professionals involved with your child including health professionals and educational service providers should be consulted in the review process.

Section F

This section must cover all the special educational provision required by the child or young person. It should describe what it will take to meet all the needs set out in Section B, to achieve all outcomes set out in Section E, and to ensure your child or the young person reaches their full potential.

By way of illustration let us say you identify in Section B that your child has severe dysarthria making their speech difficult to understand and as a result of their brain condition have difficulty expressing their emotions. An outcome identified in Section E is for them to be able to communicate their wants and needs effectively. The method of getting there must be included here in section F, which may be to have speech and language therapy along with neuropsychology timetabled into their school day.

  • For each of your child or young person’s needs that are listed in Section B, there should be a special education provision put within this section.
  • The provisions set out in this section must be detailed, specific and quantifiable.
  • Each provision should clearly state how it will support the desired outcome within Section E.
  • It must clearly state who, what, where, when and for how long. This means detailing the type of support, the expert needed to deliver that support, the experience and training that the expert must have, the number of hours per day needed and how frequently (e.g. as per above, provide the name of the speech therapist, what their experience is, how many hours of therapy your child needs per week, etc).
  • The section should not use woolly or wish-washy language and should clearly state what the child or young person ‘requires’ and ‘receives’ as provisions.
  • The section needs to state minimum values. For example, the child should receive ‘at least’ or ‘a minimum’ of 2 hours of speech therapy per day / week. It should not use language like ‘up to’ 2 hours per day / week.
  • A special educational provision is anything that supports your child or young person’s education or training and includes therapies provided by your local health authority or social care.
  • It can include any systems that teaches coping strategies (e.g. cognitive behavioural therapy, occupational therapy, physiotherapy, speech therapy and mindfulness) by training the child or young person to react in a way that will aid their education.
  • Equipment can be listed as an educational provision (e.g. wheelchair) but it should also include who will provide training for the use of that equipment and who will maintain, service and update the equipment.
  • The plan can list strategies such as modifications or exclusions from the National Curriculum, request a certain peer group, class size or modifications to the school or other educational environment. Clearly if your child is having, for example, 5 hours of physiotherapy, 2 hours of neuropsychology and 2 hours of speech therapy each week, they can not also go to all the classes that their peers would do.
  • The provisions should not be left open or kept vague to allow for interpretation, modification, or adjustment by those providing the service. If things change necessitating an amend in the level of provision, then a review should be held sooner than each year.

If a provision is included within Section F, then it must be provided, and the Local Authority has the legal responsibility to ensuring that it is. If for any reason the provision is not implemented, then parents or the young person has the option to appeal at Tribunal.

Section I

Within 16 weeks of the original requests for an ECHP assessment, the Local Authority must issue a draft plan, but the school will not be named within Section I. As parents of your child you, or the young person themselves, must review the plan and make representations, which will include naming your preferred school or educational setting. It may well be that your child is returning to their previous school, for example following sustaining an acquired brain injury and the school is perfectly able to adapt to meet your child’s needs, in which case this may be straight forward. However, it may also be the case that you are aware of a school much better able to meet your child’s needs even out of your catchment area. If that is the case this is the space to identify that school and explain why it would be better for them.

If the Local Authority does not agree with your preferred educational setting, then it must name the school or other educational setting that it believes is suitable for your child or the young person.

Appealing decisions

Putting together an EHCP is time consuming, complicated and will usually require challenges through the Special Educational Needs and Disability Tribunal. The Local Authority must send out information about the right to appeal with its decision notices.

The Tribunal is meant to offer parents or the young person a forum that does not require the need for legal support. However, it is important to note that in practice a Local Authority will often instruct its legal department and barristers to represent it during the tribunal process.

Legal aid is available, but access to funding is based on a review of parental means, which leaves most parents ineligible. However, free advice and guidance is available, and we strongly recommend that you speak to as many people as possible for support, insight and help.

There are several key stages within the EHCP process that allows you to appeal any decision made by the Local Authority.

The key stages are:

If the Local Authority refuses to assess or reassess your child or the young person’s needs for an EHCP

Anyone can ask for a child or young person to be assessed or reassessed by the Local Authority for the purposes of an EHCP if they believe it is necessary. If the Local Authority refuses to do so this can be appealed and given the low threshold for an assessment or reassessment to be undertaken, it is well worth appealing. In most cases the decision will be reversed in favour of your child, or the young person, without having to go to a tribunal hearing.

If the Local Authority refuses to issue an EHCP for your child or the young person

The Local Authority must confirm within 16 weeks of the original request for an assessment whether it will issue an EHCP. If the Local Authority refuses to issue an EHCP then you can appeal to the Special Educational Needs and Disability Tribunal.

You have 2 months to submit an appeal from the date that the Local Authority informed you that they are refusing to issue an EHCP, so make a note of the date in your diary so as to not fall outside this time limit.

You will also need to show that you have considered mediation. It does not mean you have to go to mediation, but you must show that you have spoken to a Mediation Adviser as to whether it would be worthwhile for you and your child to do so. They will then issue a mediation certificate.

Having done this it is wise to look at how you are going to be able to show that your child or the young person’s needs cannot be met by the standard provision at their current school and an EHCP is necessary to address their educational needs.

In the first instance you should look over the EHCP assessment already undertaken by the Local Authority. By law, the assessment must contain reports and evidence from parents, young person, school or college, health professionals, educational psychologist, and social care professionals. If your child is in year 9 of school or higher, the report should include advice about preparing for employment, independent living, social and community participation and health. Other professionals can give evidence at your request (e.g. GP or physiotherapist) and those reports should be included in the assessment.

If any of the reports do not provide enough details or are unclear, then write to the professional who wrote the report to ask for more information. Include the letter in your appeal evidence.

If you are already self-funding extra provisions outside of the school or other educational setting (e.g. a physiotherapist, occupational therapist, or case manager), it is important that these are clearly labelled and it is made clear that they are over and above educational needs. You should state what the provisions are there for (e.g. rehabilitation).

You may or may not get support for the appeal from the school or education provider, but it is always important to maintain a good relationship with them. Whatever the situation, write to the head teacher or relevant professional to ask about what additional measures are in place to help your child or the young person, what guarantee there is for the future of the provisions, and what they would do if more pupils joined with special educational needs.

If you disagree with the content of the EHCP

By law the Local Authority must provide what is ‘reasonably required’. There is a lot of scope for disputes when interpreting the phrase ‘reasonably required’, so the Tribunal is often asked to resolve issues and make decisions as to what support is needed and what school or college a child or young person should attend.

You can appeal against:

  • The contents of Section B, F and I within the EHCP which is why we have focussed on those sections above;
  • The decision not to amend an EHCP after an annual review;
  • If the Local Authority ceases to maintain the content of the EHCP

It is not advisable to just appeal against the choice of school or other educational setting in Section I. The Tribunal is there to assess whether the placement can meet the needs and provisions set out in the other Sections, so it is best to address the shortfalls in those sections and present why the school or educational setting cannot meet the education needs and provisions set out in Sections B and F thus making it unsuitable. One example may be that your child requires physiotherapy including hydrotherapy twice a week and not only does the current school not have a hydrotherapy pool, but the school 5 miles away with a hydrotherapy pool will not allow it to be used by anyone other than their own pupils.

The Department for Education and Ministry of Justice is currently running a national trial (until 31 August 2021) that allows the Tribunal to make ‘non-binding recommendations’ regarding health and social care. Presently therefore, parents and young people who are not satisfied with the sections of the ECHP relating to health and social care can appeal to the Tribunal. Although the Tribunal can only make recommendations, it is clear that its proposals should generally be followed.

The time limit to appeal is within 2 months from the decision notice or 1 month from date the mediation certificate was issued after you considered mediation.

Challenging an EHCP through Judicial Review

If parents or the young person is unsatisfied with matters that do not relate to the contents of an EHCP, then they can be challenged by way of judicial review.

Judicial review is usually necessary when there are no other ways the complaint can be resolved. Patents or the young person should first raise the issues with the Local Authority, school or other educational setting. In some cases, it may be more appropriate to complain to the Local Government and Social Care Ombudsman.

In terms of an EHCP, a judicial review can be raised with regard to issues such as:

  • Failure to deliver the provisions set out in the EHCP
  • Failure to meet the deadlines for issuing an EHCP
  • Failure to provide suitable full-time education for a child not in school
  • Issue with travel to school or other educational setting
  • Failure to carry out a social care assessment
  • Local Authority budget cuts generally impacting on special education needs
  • Unlawful Local Authority policies

Judicial review is a way of asking a court to decide whether the decisions of a public body were made in a lawful, fair, and reasonable manner. The court will look at the way the decision was taken and can order a public body, in this case the Local Authority, to remake its decision or compel it to act.

You have 3 months from the date when the contentious act, decision or event occurred to apply for judicial review. However, it is advised that you apply as soon as possible, even if you have an ongoing complaint through a different means.

To succeed in an application for judicial review about special educational needs, parents or the young person must show either:

  • That the Local Authority does not have the legal power to make the decision or to take the action you object to, or
  • That the Local Authority is under a legal duty to act or make a decision in a certain way and is refusing or failing to do so.

For judicial review it is advised to seek advice from a solicitor as soon as possible. Legal aid is assessed in the child’s name for these types of cases and so funding is more likely to be available.

Leanne Tattam is a Partner at Birchall Blackburn Law specialising in Serious & Catastrophic Injury / Clinical Negligence claims, particularly those that result in brain injuries in both children and adults.

The team at Birchall Blackburn Law are passionate about having a real impact in improving people’s lives.

Although we are grateful to receive support from a number of corporate sponsors, we do not endorse any specific organisation. If you are seeking legal advice, we encourage you to contact a number of experienced solicitors for an initial discussion before selecting a firm.

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