Education, Health and Care Plans 4 years on: are we there yet?

I am a solicitor in the Child Brain Injury team at Bolt Burdon Kemp.  We help children who have suffered brain injuries, as a result of an accident or medical negligence, claim compensation.  As part of the claims process, we obtain medical reports to investigate the child’s current and future needs.  In addition to providing legal advice and representation, we also work with specialist brain injury case managers to set up care and therapy packages.  We do this at the earliest possible stage to ensure our client’s complex needs, post injury, are met.  These packages are funded through regular payments of compensation.

When a child suffers a brain injury, this can affect their development and ability to learn.  As such in the vast majority, if not all cases, that child will have special educational needs (‘SEN’).  As part of our service, we provide our clients’ parents with advice, support and representation to ensure their special educational needs are met following their brain injury.

In this blog I will discuss what parents can do to ensure their child’s SEN are met. I will discuss:

• How local authorities have been dealing with their duties towards children with SEN,
• The problems this has caused, and
• What this means for children with SEN

I hope that it will encourage parents who have concerns regarding their child’s educational needs to speak up and to seek the right help to ensure their child gets the best education possible.

Who is responsible for a child’s educational needs?

Local authorities have a responsibility to identify all the children and young people in their area with SEN or with disabilities and to investigate their needs, including their special educational needs.

If a parent or school staff member feels a child might need special educational support, they can make a request to their local authority for an Education, Health and Care (‘EHC’) needs assessment.

EHC assessments

When a request is made to the local authority, they must first decide if they think an EHC assessment is needed in the first place _[1].  The local authority must consult with the child’s parent regarding their child’s needs before making their decision on whether to conduct an assessment.

If the local authority decides that an EHC needs assessment is not needed, they must inform the child’s parent of the reasons for their decision.  If the local authority does decide to conduct an EHC needs assessment, they should notify the child’s parent and involve them in the assessment process.

Once an EHC needs assessment has been completed, if the local authority has identified that the child has educational and/or health and care needs, they must then produce an EHC plan for the child.  Parents should have the opportunity to review and request amendments to the plan before it is finalised.

In summary:

• The local authority first has a duty to decide if an EHC needs assessment is required;
• If it is required, the local authority must then assess the child’s educational, health and care needs;
• If the local authority identifies that a child has any of these needs, they must ensure these needs are met

What can parents do?

Parents have the power to challenge various aspects of this process. A parent can challenge:

• A local authority’s refusal to assess their child’s needs;
• A local authority’s refusal to provide an EHC plan;
• The contents of the EHC Plan (including what transport is provided to and from school)

As of April 2018, parents will also be able to challenge the health and care elements of EHC plans at a tribunal.  However the tribunal will only have power to make recommendations.  These will not be binding on local authorities.  It begs the question whether this is the best way for these cases to be dealt with; I expect the answer is no.

Problems with the current system

There is concern that parents will only be able to challenge the health and care elements of EHC plans through judicial review, which would take place before the High Court and not the education tribunal.  Many parents can barely afford to bring one case, let alone two.  It is difficult to see how this will work in practice.  I expect once health and care appeals begin to be made at the tribunal, the position will become clearer.

On the point of costs, local authorities also have the advantage of being able to afford very experienced barristers, whereas parents for financial reasons often have no choice but to represent themselves.  Legal Aid is available in certain situations and there can be other ways to fund education appeals.  I think it is always worth having a free initial consultation with a specialist lawyer to explore your options.

There is a concern that some local authorities are not yet fully complying with the legal duties demanded by the legislation on EHC plans.

What does this mean for children with SEN?

This can have a hugely detrimental impact on disabled children’s access to education and the quality of their education.  One area of concern is the provision of support for children with SEN in mainstream schools and on the promotion of integration amongst children with and without SEN, which can enhance each child’s learning and social experience. 

Why are there problems with the current system?

The schools are not solely to blame.  They are often operating with limited resources, as are local authorities. Recently local authorities have warned that there will be a £2 billion funding gap for children’s services by 2020_[2].  So as schools are looking to local authorities for support, local authorities are in turn doing the same to the government.

Lack of funding, however, is not an acceptable excuse for your child not getting the right support.  Even within financially restricted means, local authorities can and should do better. It is felt by some that local authorities have not taken the EHC process seriously enough and that, due to time and cost pressures, they have outsourced the EHC assessment process to private companies who are not appropriately placed to conduct the work.  This has led in some cases to poor quality assessments and plans being made.

Challenges for parents

The very nature of legal proceedings means that one side is against the other – here, parents versus local authorities.  If a local authority has already refused certain provision for a child, it is unlikely they will want to provide much more without being challenged on this.  As such, in some instances, local authorities have been seen to adopt tactics to make it quite difficult for parents not to agree with their proposals.

When faced by a very experienced barrister, this can be quite daunting for parents representing themselves.  In some cases, local authorities have made offers of some, but not complete, support sought for a child, in an attempt to reach a quicker and more preferable solution for themselves.  This can leave parents in a vulnerable position, as understandably a speedier resolution can be quite appealing.  Legal proceedings can be extremely stressful, rendering some parents more amenable to having their child’s needs negotiated down.

One can see why this might be tempting; but local authorities should be meeting all the needs of a child and not avoid their duties.  It is a shame that some families come away from the process with less than what they and their child need and deserve.

Where are we now?

Despite the challenge faced by parents in this process, since EHC plans were introduced in 2014, several thousand appeals have been brought before the education tribunal and 80% have been won by the parent.  This does not take into account the many cases settled before reaching tribunal stage.

It is felt that, once more local authorities begin to fully meet the demands imposed on them by the EHC legislation, fewer appeals will be brought before the education tribunal.  At present, charitable and not for profit organisations are under huge demand for giving support in this area. IPSEA Independent Parental Special Education Advice) have said that the demand for its services has increased by 56% since EHC plans were introduced in 2014_[3].

The positive side

If done properly, EHC plans can be very positive informative documents which clearly set out a child’s SEN and the provision required to meet their needs.  They can provide a holistic approach for how a child’s needs are met in every aspect of life – and, for a child with disabilities, these needs very much overlap.  For example, many children with disabilities require personal care to be provided at school as well as at home.

Moreover, the plan will continue until a young person is 25 years old, meaning they are not left without support once they leave the education system.  This sadly is known to happen for many young people.

What can be done?

There are many useful and informative online resources which can help guide you through the process such as http://www.ipsea.org.uk/home.  You may also wish to consider joining a parent/carer forum, which can be a source of practical and moral support.

The law around education entitlement for disabled children is complex.  Parents can find the prospect of challenging the local authority daunting legally, financially and emotionally.

If you have any concerns regarding your child’s access to and quality of education, I recommend approaching a specialist solicitor to explore your options.

How can we help?

As part of our work in the child brain injury team, we see many cases where local authorities have failed to identify and/or meet our clients’ special educational needs.  We have brought many successful challenges for our clients, who have suffered brain injuries during childhood, relating to EHC Plans, for example:

• challenging the identification of the child’s needs,
• the provision offered to meet those needs, and
• school placements

When we challenge the EHC plan on behalf of our clients, we can include the cost in the child’s compensation claim. We also accept private instructions to act for children who do not have compensation claims.

School is extremely important not only for a child’s intellectual development but also their social development and enjoyment.  Once successfully challenged, we see what a positive impact a good EHC plan can have on a child’s life, and their family’s life.

Footnotes

_[1] Section 36(3) Children and Families Act 2014

_[2] https://www.localgov.co.uk/Childrens-services-face-2bn-funding-gap-by-2020/43046

_[3] https://www.lawgazette.co.uk/features/special-education-needs-learning-to-fight/5064933.article