Navigating your child’s education can be daunting especially if your child has special educational needs. The purpose of this article is to explain how to apply for an Education, Health and Care Plan (EHCP) and explain what an EHCP actually is and the rights it gives you as a parent or carer.
What is an EHCP?
EHCP’S are for children and young people up to the age of 25 with special educational needs who require additional support while in education. The additional support required must be more than can be met within the normal resources of a mainstream setting.
Importantly, an EHCP is a legally enforceable document that a Local Authority must implement. This is a statutory duty and is found in Section 37 of the Children and Families Act 2014.
Therefore, it gives more protection than a SEN support plan, also known as an Individual Learning Plan (ILP) or Personal Learning Plan (PLP) which are not legally enforceable documents.
Irwin Mitchell’s video below provides an overview of what an EHCP is, details who can request one, and outlines the process for obtaining it.
How do I apply for an education, health and care needs assessment (EHCNA)?
A Local Authority must secure an EHC needs assessment for the child or young person if it is of the opinion that—
a) the child or young person has or may have special educational needs, and
b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.
This is set out in section 36 (8) of the Children and Families Act 2014.
The application is made to your Local Authority; if you are unsure who your Local Authority is, you can check here.
Parents, carers or a young person (if they are over 16) can apply for an EHCNA.
The local authority will decide, from the information provided, whether to assess the child or young person. The local authority must reply to you within six weeks. This timeframe is stipulated in the Special Educational and Disability Regulations 2014 (4) (1)
If the local authority refuses to proceed with an EHCNA the Local Authority must clarify in writing how and why this decision has been made.
You do have the right to challenge this decision in the SEND tier tribunal, which we discuss further in this article. This would be a refusal to assess appeal.
The EHCNA Process
The Local Authority will need to arrange the necessary assessments for a child or young person. This may include an assessment by an educational psychologist, physiotherapist, occupational therapist or speech and language therapist depending upon your child’s special educational needs. The Local Authority must complete the EHCNA process within a maximum of 20 weeks culminating in an Education, Health and Care Plan (EHCP) if they agree to issue one – this is not a ‘best endeavours’ requirement, but an ‘absolute’ duty.
The information and advice that must be obtained by the Local Authority is set out in section 6 of the Special Educational Needs and Disability Regulations 2014.
a) advice and information from the child’s parent or the young person;
b) educational advice and information—
(i) from the head teacher or principal of the school or post-16 or other institution that the child or young person is attending, or
(ii) where this is not available, from a person who the local authority is satisfied has experience of teaching children or young people with special educational needs, or knowledge of the differing provision which may be called for in different cases to meet those needs, or
(iii) if the child or young person is not currently attending a school or post-16 or other institution and advice cannot be obtained under sub-paragraph (ii), from a person responsible for educational provision for the child or young person, and
(iv) if any parent of the child or young person is a serving member of Her Majesty’s armed forces, also from the Secretary of State for Defence;
c) medical advice and information from a health care professional identified by the responsible commissioning body;
d) psychological advice and information from an educational psychologist;
e) advice and information in relation to social care;
f) advice and information from any other person the local authority thinks is appropriate;
g) where the child or young person is in or beyond year 9, advice and information in relation to provision to assist the child or young person in preparation for adulthood and independent living; and
h) advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from.
(2) Where it appears to the authority, in consequence of medical advice or otherwise, that the child or young person in question is either or both—
(a) hearing impaired;
(b) visually impaired,
and any person from whom advice and information is sought as provided in paragraph (1)(b) is not qualified to teach children or young people who are so impaired, then the advice sought shall be advice given after consultation with a person who is so qualified.
The local authority has a statutory duty to ensure the necessary information and advice is obtained. They are also required to consider any evidence that you submit, including any independent expert reports.
At the end of the EHCNA process the local authority can make one of two decisions: to issue an EHCP or refuse to issue an EHCP.
Regulation 10 (1) of the Special Educational and Disability Regulations 2014 stipulates that if following an EHCNA, a local authority decides that it is not necessary for special educational provision to be made for a child or young person in accordance with an EHC plan, the notification given in accordance with section 36(9) of the Children and Families Act 2014 must be given as soon as practicable, and in any event within 16 weeks of the local authority receiving a request for an EHC needs assessment.
If the Local Authority refuse to issue an EHCP you can appeal this decision in the SEND First Tier Tribunal.
If the Local Authority decides an EHCP is necessary, then the LA must issue an EHCP. This is set out in section 37(1) Children and Families Act 2014. Initially a draft EHCP will be issued. When this is issued you will be given at least 15 days to comment on the draft EHCP and request a particular school. You may also request a meeting with the Local Authority to discuss the draft EHCP.
There is no deadline to send the draft EHCP. However, the final EHCP must be issue within 20 weeks, thusthe draft plan should be issued a maximum of 14 weeks from when the EHCNA was received.
You can lodge a formal complaint if you do not receive a final EHCP from the Local Authority within 20 weeks. You may also instruct a solicitor to advise you and, if necessary, support you with sending a letter of action to the local authority on your behalf if the local authority has failed to comply with statutory timescales.
The Contents of an EHCP
The EHCP should be written in a way that makes it clear, to parents, young people, schools, colleges and local authorities (LAs), who is required to do what, when it has to happen and how often.
The contents of the legally enforceable sections of an EHCP should be SMART, meaning the targets are specific, measurable, achievable, realistic and time measured.
Under Regulation 12 of The Special Educational Needs and Disability Regulations 2014, an EHCP must have the following sections:
- Section A: the views, interests and aspirations of the child and his parents or the young person
- Section B: the child or young person’s special educational needs
- Section C: health care needs which relate to their SEN
- Section D: social care needs which relate to their SEN or to a disability
- Section E: the outcomes sought for the child or young person
- Section F: the special educational provision required to meet their SEN
- Section G: any health care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN
- Section H: any social care provision required from social services under the Chronically Sick and Disabled Persons Act 1970, and/or reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN
- Section I: the name of the school or other institution to be attended by the child or young person, and the type of that institution (or just the type if no specific institution is named)
- Section J: details of any direct payment which will be made, and
- Section K: copies of all of the advice and information obtained as part of the EHC needs assessment.
The legally enforceable sections are section B (description of special educational needs), section F (necessary provision to meet special educational needs) and section I (placement). It is possible to ask the SEND Tribunal to make recommendations in relation to section C (healthcare needs that relate to special educational needs) and section D (social care needs that relate to special educational needs). It is also possible to ask the SEND Tribunal to make recommendations to the corresponding provision sections (section G and section H). Section A provides a background description of the child or young person, and section E sets out time measured goals/outcomes.
Send Tribunal Appeal
You have the right to appeal if the Local Authority refuses to assess a child or young person or refuses to issue an EHCP following assessment.
You have the right to appeal against section B and section F of an EHCP and/or the named placement in section I within the SEND Tribunal.
You can also appeal if the Local Authority writes to you to state it is ceasing to maintain your EHCP.
Ceasing an EHCP is lawful in the following circumstances as set out in section 45 of the Children and Families Act 2014:
A local authority may cease to maintain an EHC plan for a child or young person only if—
a) the authority is no longer responsible for the child or young person, or
b) the authority determines that it is no longer necessary for the plan to be maintained.
(2) The circumstances in which it is no longer necessary for an EHC plan to be maintained for a child or young person include where the child or young person no longer requires the special educational provision specified in the plan.
(3) When determining whether a young person aged over 18 no longer requires the special educational provision specified in his or her EHC plan, a local authority must have regard to whether the educational or training outcomes specified in the plan have been achieved.
An EHCP is always only for people up to age 25. It is stipulated in section 46 of the Children and Families Act that “a local authority may continue to maintain an EHC plan for a young person until the end of the academic year during which the young person attains the age of 25”.
How to appeal
There are very strict timescales during which to make an appeal. The appeal must be lodged within 2 months of receiving the final EHCP or within one month of receiving the mediation certificate. You may wish to appeal a decision made. You can appeal as a parent or carer. A young person (over the age of 16) can also appeal in their own right.
Section 55 Children and Families Act 2014 specifies that unless the appeal concerns section I, you will need to consider mediation before lodging the appeal.
A mediation advisor is impartial and can assist both sides in reaching an agreement. Details of how to contact the mediation service in your area should be detailed in the local authority’s decision letter.
At the end of the mediation, you will be given a certificate; you will need this if you wish to appeal via a tribunal.
Please note that will always need a mediation certificate to make an appeal to the SEND Tribunal unless your appeal relates to section I only. The Local Authority must provide contact details for the mediation service when they write to you with the relevant decision.
The SEND first-tier Tribunal
The SEND Tribunal handles appeals against Local Authority decisions regarding special educational needs.
The decisions that can be appealed are set out in section 51 (2) of The Children and Families Act 2014.
Special Education Needs and Disability (SEND) Tribunals are designed to be as family friendly as possible and are generally held online, unless you specifically request an in person hearing.
You may instruct a solicitor to run your appeal on your behalf. Additionally your solicitor may recommend you are represented by a barrister at the final hearing.
You may be advised by your solicitor to obtain further independent expert reports to strengthen your appeal. The SEND First Tier Tribunal is an evidence-based court.
If you are on a low income or receiving certain types of benefits, you may be eligible for legal help. In limited circumstances, a young person may qualify for legal aid in their own right. The legal aid eligibility keycard sets out details of who is likely to qualify. Do note both your capital and income will be taken into account.
I live in Wales
Local authorities in Wales don’t issue EHCPs. In Wales, you can get an Individual Development Plan (IDP).
You can find further information on additional learning needs on the Welsh Government Website here.
I live in Scotland
Local authorities in Scotland don’t issue EHCPs. In Scotland, you can get a Coordinated Support Plan.
You can find further information on Coordinated Support Plans at the Scottish Government’s website here.
I live in Northern Ireland
Local authorities in Northern Ireland don’t issue EHCPs. In Northern Ireland, you can get a Statement of Special Educational Needs.
You can find further information on Statements of Special Educational Needs at the Northern Ireland Government website here.
The Right to Education
It is important to remember all children and young people have a right to education whatever their difficulties.
Education Team at Irwin Mitchell
Irwin Mitchell’s highly experienced education team can provide advice, support and representation in all aspects of education law, at any stage of a dispute.
They can advise you on bringing a challenge where your child has been denied a place. Seeking legal advice and support will give you the best possible chance of success in your appeal. We can scrutinise admissions criteria and advise on the merits of bringing an appeal and therefore the likelihood of an appeal’s success. We can advise on evidence and information to provide in support of your appeal and meet specified deadlines.
See Education Law Solicitors for further information.
Other organisations that can assist:
- Council for Disabled Children
- (IPSEA) Independent Provider of Special Education Advice
- SOS!SEN – The Independent Helpline for Special Education Needs – We offer a free, friendly, independent and confidential telephone helpline for parents and others looking for information and advice on Special Educational Needs (SEN)
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.
