In my reduced fee conference packages, one of the frequent enquiries I receive from parents (and pupils/students aged 16-25) is, how to challenge their Education, Health and Care Plan (EHCP), or if they do not get one.
Over a 10-year period the Special Education Needs (SEN), system has worsened as highlighted by the Public Accounts Committee chaired, by Sir Geoffrey Clifton-Brown MP, Chair of the Committee,
His conclusions were;
“Urgent warnings have long been issued to Government on the failing SEND system from every quarter. This is an emergency that has been allowed to run and run. Families in need of help have been forced to spend precious energy fighting for the support they are legally entitled to, and local authorities to bear an unsustainable financial burden.
“The fact that 98% of cases taken to tribunal find in favour of families is staggering, and can only demonstrate that we are forcing people to jump through bureaucratic hoops for no good reason. It is long past time the Government took action matching the gravity of this situation. And yet our inquiry found no sense of urgency amongst officials to do so.
“The immensity of this situation cannot be overstated. As a nation, we are failing countless children. We have been doing so for years. At the same time, we are creating an existential financial risk for some local authorities, caused by that same failing system. This report must serve as a line in the sand for Government. Every day that goes by for families not receiving the right support is another day closer to a lost generation of young people.”
Having worked in Education and particularly in SEN, I was always amazed at the difficulties parents and pupils faced. Getting support in place was often a struggle. The story is the same, all over the country.
Now as a Barrister, who practices in the area of Education Law, I often find many local authorities, either chasing their tale or are far too under resourced.
Often, I have found that the EHCP has not been issued, completed incorrectly, disagreed upon or simply refused to be provided. Pupils or parents are often left fighting a battle which they should not have to in the first place, because they have a right to education despite of their needs.
Whilst there is some guidance online, I have simplified them, for those who are considering appealing but are unsure where to start. Hopefully, this guidance will assist readers in saving legal costs and making sure they only spend legal fees on the important aspects of their case when instructing direct access barristers.
If you believe you or your child require an EHCP, you can request for this from your local authority. My suggestion is, for you to contact the Special Educational Needs and Disabilities Information Advice and Support Services (SENDIASS) Department in your area, who will be able to support you through this process.
There are cases where doctors, health visitors, teachers, parents, family and/friends may also be able to request for one.
As part of the assessment as to whether an EHCP will be made, key evidence will be essential. Therefore, ensure that you provide any educational or professional reports from the school or any educational institution. You may wish to include assessments from the doctors’ and any letters which mention your/the child’s needs. If you have psychologists' reports, they would also be helpful.
Having trained as a Modern Foreign Languages (MFL) teacher, I have found any language / communication difficulties should also be highlighted by engaging the teachers who teach English and other languages. I have found that this can sometimes be overlooked but has been proven to be useful evidence, to understand if other underlying learning difficulties may be present.
Unfortunately, as seen above, this can take a while if you include the entire process. From the point of the application, the local authority will then conduct the assessment and tell you within 16 weeks if a plan is to be drafted.
If it is drafted, you will be sent a copy and have 15 days to input into it.
There is then a further 20 week wait to finalise the EHCP.
This can take the best part of an academic year; therefore, it is crucial to try and start this process as soon as possible but also factor in the time you need to get reports etc from professionals to submit as supporting evidence.
Unfortunately, because of the crisis very few councils are meeting these timelines.
Firstly, complete the form Send 35.
Many parents and students who want to challenge an EHCP get lost in the process. It is essential to stay focussed and highlight the key parts you wish to appeal.
Many people come to me at this stage simply wanting to know how to challenge the plan, and in my opinion, this is a waste of legal costs, as they can begin this process themselves.
Then you complete the form Send 35A
The key aspects of which part of the plan to challenge in line with the evidence is essential. Furthermore, ensure you articulately lay out the arguments. I have often advised on parts of the plan which require some more input and others which may have too much irrelevant information.
It is crucial you obtain a certificate regardless of your participation.
Pay careful attention to the 2 months given once you have had the letter from the local authority.
There is very comprehensive guidance on the forms themselves. In the forms, you will find all the information you need, such as, who can bring the appeal, who can be your advocate / representative and information on how to fill the form out.
It is at this stage that I suggest those wanting to challenge the decision, when legal advice is to be sought. Each ECHP is different and will require specific grounds to be made out before you submit your appeal form.
Once the appeal form is sent to the tribunal, you will be given a procedural timeline. It is imperative to deal with most of this yourself, as it is administrative. Bar when you get the bundle and need legal advice.
If you need a reduced fee conference package on any of the matters discussed above, please contact me at haresh.sood@tbgbarrister.co.uk.
Edited by: Satya Yadav.