Some children and young people with a visual impairment may need more support than others to achieve their full learning potential in education.

Local Authorities and some educational settings have a legal duty to support children and young people with special educational needs. Below, you can find advice and information about what support might be available to your child and how you can get this.

Our questions and answers should help to better explain Educational Healthcare Plans (EHCPs) and how they are used to support your child.

Frequently Asked Questions

What’s the purpose of an EHCP?

The document is produced and maintained by your Local Authority and should specify the special educational needs and special educational provision required by the child/young person. The EHCP should also specify the educational placement that the child/young person should attend. The Plan also has sections that should detail the health care provision that has been assessed as reasonably required for the child/young person and social care provision which is being made for the child/young person under the Chronically Sick and Disabled Persons Act 1970 and any other social care provision that has been assessed as reasonably required.

The content of the EHCP should be informed by an assessment process called an Education, Health and Care Needs Assessment.

The Local Authority is legally required to ensure that the special educational provision specified in the EHCP is delivered to the child/young person.

The local health care provider is legally required to arrange the health care provision specified in the EHCP.

What’s the difference between a Statement of SEN and an EHCP?

An Education Health & Care Plan replaces Statements of Special Educational Needs in England, as a result of the Children and Families Act 2014. By 1 April 2018, all Statements of SEN should have been replaced with an EHCP following a legally prescribed transition process.

In Wales, Statements of SEN remain in force and are governed by the Education Act 1996 and associated regulations.

EHCPs are made up of a minimum of 12 sections, specifying educational, health and care needs and provision. Statements of SEN are 6 sections specifying educational and non-educational needs and provision.

How do I get my child an EHCP?

The first step in the process is to request an Education, Health and Care Needs Assessment of the child. An EHC Needs Assessment informs a Local Authority’s decision on whether it needs to issue an EHCP for the child or young person.

Once a Local Authority agrees to carry out an EHC Needs Assessment it must seek advice from a number of professionals. Based on the evidence gathered it will then decide whether to issue an EHCP for that child or young person.

Local Authorities must carry out an EHC Needs Assessment first and on the basis of the information gathered from that process, will decide whether to issue an EHCP. An EHCP Needs Assessment request must be made in writing to the Local Authority. The request can be made by a Parent or educational setting. This request needs to be responded to within 6 weeks by the Local Authority.

What happens during an EHC Needs Assessment?

An EHC Needs Assessment is an integrated assessment of the education, health care and social care needs of the child or young person.

A Local Authority must seek advice on a child or young person’s needs, the provision to meet those needs and outcomes expected to be achieved. Advice can be sought from:

  • the child’s parent or the young person
  • educational advice – if the child or young person is visually impaired then the advice must come from a suitably qualified professional
  • a health care professional
  • an educational psychologist
  • social care
  • any other person the local authority thinks is appropriate
  • where the child or young person is in or beyond Year 9, advice in relation to provision to assist the child or young person in preparation for adulthood and independent living
  • advice from any person the child’s parent or young person reasonably requests that the Local Authority seek advice from

The Local Authority does not have to seek new advice from any of the individual professionals listed above where it already exists and has been been provided for any purpose. This exception only applies if the professional providing that advice, the Local Authority and the child’s parent are satisfied that the existing advice is sufficient for the purposes of an EHC Needs Assessment.

What are Personal Budgets and Direct Payments in an EHCP?

These are newly introduced elements of EHCPs. Local Authorities can now be requested to identify a 'personal budget' for a child or young person that an EHCP is maintained for. A personal budget is an amount of money identified by a Local Authority to deliver provision set out in the EHCP where the parent or young person is involved in securing that provision. Information about the availability of personal budgets must be contained in the Local Authority’s local offer.

In certain circumstances, the Local Authority can refuse to identify a personal budget, namely when the special educational provision is being provided as part of an overall budget and the Local Authority say that they can’t disaggregate the personal budget from overall budget. An example is where a Local Authority has a contract with an NHS therapy service to deliver all provision for a region.

Parents or young people can then request that a Local Authority consider making a direct payment to them so that they can arrange the delivery of provision themselves. This will be an actual payment of money instead of the Local Authority arranging for the provision to be delivered.

Where the provision proposed to be replaced by a direct payment takes place in a school or college setting, the consent of the Head Teacher or Principal of the named school or other institution is required.

 

I have been told that once my child reaches age 16, I have no rights regarding their EHCP – is that true?

The Children and Families Act 2014, which is the legal framework for EHCPs, states that once a young person reaches the end of compulsory school age, all rights that were previously held by the parent, pass to the young person, subject to the young person having mental capacity, as per the Mental Capacity Act 2005.

Once a young person is 16, a Local Authority should contact the young person directly, however the involvement of parents in discussing the young person’s future is encouraged by the SEN Code of Practice. The young person can also seek further involvement from their parents and should notify the Local Authority if they want their parents to be included in communications/attend meetings etc.

When it is agreed that a young person does not have capacity to make a decision about appropriate education needs, then parents will automatically make that decision for them unless the Court of Protection has appointed a different person to be their Deputy.

They would have to make the decision which was in the best interests of the young person concerned. The Local Authority would also still have to seek the young person's views as part of any decision-making process. There may be disagreement between the parents, the young person, the school/college being attended and/or the Local Authority, regarding a young person's mental capacity to make a decision. It may then be necessary to seek an assessment to provide a professional opinion of the young person's capacity to make the decision.

A Mental Capacity Assessment might also be helpful to support a parent who wished to take a decision on behalf of a young person and was being challenged by a Local Authority about their right to do so. A parent would be expected to explain the basis of their belief that the young person lacked capacity and an assessment might help them to do so. Such an assessment may not be necessary in all cases however, depending on the other evidence available to support the parent's belief.

What is the Special Educational Needs and Disability (SEND) Tribunal and when is it useful? What are the cost implications of going to Tribunal?

The SEND Tribunal is the legally identified route of redress against Local Authority decisions for specified matters concerning EHCPs. It is an independent national tribunal which hears parents’ and young people’s appeals against Local Authority decisions about the special educational needs of children and young people. Specifically, parents/young person can appeal to the SEND Tribunal against the following Local Authority decisions:

  1. not to secure an EHC Needs Assessment
  2. that it is not necessary for special educational provision to be made in accordance with a Plan
  3. where an EHC Plan is maintained for the child or young person and it is first finalised, or thereafter amended or replaced
    i. specified special educational needs – Section B
    ii. specified special educational provision – Section F
    iii. named school/institution/specified type – Section I
    iv. the fact that no school/institution is named – Section I
  4. not to secure a re-assessment following a request
  5. not to amend/replace a Plan following review/re-assessment
  6. to cease to maintain a Plan.

The SEND Tribunal has the power to make a binding decision on these issues and has extensive powers to do so. The outcome of a SEND Tribunal replaces the decision that the Local Authority made which you are appealing.

The SEND Tribunal service is free to use and you are able to pursue the process unrepresented. However, many parents choose to take legal assistance and commission specialist evidence such as expert reports – these costs are not recoverable from the Tribunal.

What does the law say about entitlement to free transport for a child with an EHCP?

Local Authorities are required to arrange free and suitable home-to-school transport for children of compulsory school age who are ‘eligible’ to their nearest suitable qualifying school.

Eligible children is defined under four categories:

  1. Children with SEN, a disability or a mobility difficulty
  2. Children whose route to school is unsafe
  3. Children who live beyond the statutory walking distance
  4. Children from low income families.

Children with an EHCP will fall under category A.

Compulsory school age begins with the start of term following a child’s fifth birthday and ends on the last Friday in June in the academic year in which s/he turns 16.

A qualifying school is a:

  • maintained (publicly funded) school or nursery
  • non-maintained special school
  • pupil referral unit
  • city technology college
  • an Academy
  • For a child with an EHCP, an independent school can also be a qualifying school if this is the only school named in Section I of the EHCP.

The Home to School Travel and Transport Guidance 2014 provides details on the types of travel arrangements that satisfy the legal duties on Local Authorities.

In respect of ‘adult learners’ (young people over sixth form age, those who are 19 and up; if they started a course of further education before their 19th birthday, they remain of sixth form age until they complete that course), Local Authorities must make such arrangements for the provision of transport, as they consider necessary to facilitate the attendance of adults receiving education at institutions maintained or assisted by the authority and providing further or higher education (or both), or within the further education sector. If an adult learner has an EHCP, then this supports travel arrangements being ‘necessary’: since Local Authorities have a duty to secure the special educational provision specified in an EHCP, getting to the placement is crucial to this.

My child has stopped receiving the speech and language provision set out in their EHCP – what can I do about this?

Speech and language provision should be specified in Section F of the EHCP and by law, Local Authorities are required to secure the special educational provision specified in Section F.

Once you discover the provision is not being provided, you need to raise this with the Local Authority directly and immediately, in writing. It may also be worth meeting with the placement directly to find out why the provision has stopped. If you do not receive a response within 14 days, you need to consider escalating the matter to court action of Judicial Review. Parents and young people are strongly recommended to seek the assistance of a solicitor as soon as possible and before pursuing any action.

I disagree with the school that has been named in my child’s EHCP, as well as the description of needs. I have been advised that I must go through mediation before I can consider appealing. Is that correct?

Mediation in SEN matters is an optional, not mandatory process. In most cases, you need to secure a Mediation Certificate to lodge an appeal with the SEND Tribunal, which can be done either by pursuing mediation (and securing a certificate at the end of the process) or simply contacting the nominated mediation service and requesting a certificate i.e without going through mediation.

Mediation is an informal process which attempts to resolve the issue; it involves a meeting between parents/young person and Local Authority (and any relevant parties) where the dispute(s) are discussed, in light of which, a different decision may be reached.

Is your question not on the list? Let us know what you were looking for here >


 

Can’t find the answer you’re looking for? Try our further resources below:

 

   EHCP – Educational Health Care Needs Assessment     EHCP Content

   EHCP – Getting an EHCP Timeline     SEND Tribunal Appeals

 

Gurvinder Kaur


This information has been compiled by VICTA Trustee Gurvinder Kaur, a Solicitor in the area of Special Educational Needs Law.