Getting an Education Health Care Plan: an expedition like no other

June 22, 2020
Claudia Hillemand - Senior Associate in the Child Brain Injury team

Posted by: Claudia Hillemand


I represent a 4 year old girl with cerebral palsy who is due to start primary school in September 2020.  For the purpose of this blog I will call my client Sophie.

Sophie has a clinical negligence claim arising from events at her birth that caused her to suffer a hypoxic brain injury; she has cerebral palsy affecting all 4 limbs.

I represent Sophie in her case against the Trust and over the last 18 months I have helped her parents in their fight to get Sophie an Education Health Care Plan (‘a Plan’).

Sophie is a tenacious little girl who has always demonstrated a determination and zeal to keep up with her peers and exceed the expectations of those around her.  It has however always been clear to those who know Sophie well that she will require significant support to cope with the myriad challenges she will face in a mainstream primary school.

Getting a Plan for Sophie that accurately reflects her special educational needs has been a long journey, involving two appeals to the SENDist (‘the tribunal’), numerous professional reports, many hours of work and for Sophie’s parents a lot of worry.

As I think back on the 18 month journey of securing an adequate Plan for Sophie, I can’t help but feel a mix of emotions; satisfaction at the eventual outcome, frustration at the approach of the Local Authority (‘LA’) and a strong sense of injustice for all the families who are grappling with this broken system with limited legal, financial and emotional support.

My hope is that this outline of the journey Sophie’s parents have made, a journey I think a lot of families have been on, will contribute to the discussion on the need to reform our special education needs system and highlight the growing urgency of the situation.

The First Appeal – Getting a Plan

Sophie’s parents knew she would need help in school; and they promptly arranged for an assessment for a Plan to take place over a year before she was due to start Reception.

Despite obtaining clear evidence of Sophie’s special educational needs the Local Authority maintained her needs could be met from the school’s SEN budget and refused her a Plan.  The decision shocked all of us, not least it transpires, one LA therapist who was so surprised she sought confirmation that her report detailing the help Sophie would need in school had in fact been received by the SEN panel.  There was no question, the report had been received.

I accepted instructions from Sophie’s father to appeal the refusal to give Sophie a Plan.

To prove Sophie’s special educational needs to the tribunal we obtained reports from a private speech and language therapist, physiotherapist, occupational therapist and educational psychologist.  We involved an education consultant to assist with the process and took a witness statement from her nursery teacher.

All of the professionals agreed that Sophie had special educational needs, that she required provision to meet those needs and that she could not access the curriculum without a Plan.

The LA maintained their refusal to give Sophie a Plan until just a few weeks before the final hearing when they agreed to give her a Plan.

Whilst the belated LA’s change of heart was welcomed, the preparation and cost of the appeal, both financial and emotional, had not been insignificant.  Most importantly however, Sophie’s parents, who were understandably worried about her not having adequate support in school, had decided to delay her entry by a year until they could be sure that a Plan would be issued and adequately reflect what their daughter needed.

Waiting for the first draft…

The LA agreed to provide a first draft Plan within two weeks.  Two weeks came and went and no Plan was received.  When the Plan was eventually received it was immediately clear that it almost entirely failed to take into account the up-to-date private reports that had been obtained for the first appeal, and instead contained outdated information which was of very little use to Sophie, or her school, in establishing what she needed to access the curriculum.

As a team we made representations to the LA pointing out the swathes of information that had been ignored and in September 2019 they agreed to prepare a second draft.  Three months passed and a second draft was finally received shortly before Christmas.

In line with the SEN Code Sophie’s parents had 15 days to provide comments on the draft Plan before it was finalised.  The team hurried to collate their responses in the busy pre-Christmas period, only to be told that the LA planned to issue the Plan without waiting for comments.

We objected but were told we could always appeal the Plan if we were not happy.  Something we had hoped to avoid if possible.

Seven days later, having waited over five months for a Plan, Sophie’s parents were denied the right to comment and the inadequate draft was issued as the final version of the Plan.

Mediation

Eager to avoid the stress of a second appeal, and taking hope from the fact that Sophie’s school placement was close to being agreed, we thought a mediation where we could all sensibly discuss the changes that were needed to sections B and F of the Plan, as evidenced by the professional reports, would be a time and money saver.

Unfortunately, the LA took a different approach and they refused to engage in mediation if legal representation was present.  The reasons for this were not clear.

The Second Appeal – Fixing the Plan

A second appeal was lodged with the SENDist this time appealing sections B and F of Sophie’s plan; the particular areas of concern were the need for 1:1 support, therapeutic provision and her delayed start.

Once again, private reports were sought from a speech and language therapist, physiotherapist, occupational therapist and an educational psychologist.

The LA did not arrange for updating assessments from any NHS professionals.

A few weeks before the appeal was due to be heard the LA representative asked me to agree to an adjournment.  I agreed to consider the request if the LA would use the extra time to attend a settlement meeting.  The LA refused.

An adjournment without any prospect of settlement was not in Sophie’s best interest – and after so long her parents needed certainty about the support she would have in school.  I refused the LA’s request and the tribunal agreed.  The hearing was going ahead.

Sophie’s parents called her physiotherapist, occupational therapist and educational psychologist to give evidence.  The LA did not call any witnesses.  The hearing lasted a full day.

The tribunal agreed that Sophie needed full time hours 1:1 support and accepted almost all of Sophie’s parent’s proposed changes to sections B and F of her Plan.

Sophie is due to start school in September with the support she needs.

A period of reflection

I have thought carefully about this case and the journey to getting Sophie the Plan she needs.

Whilst I feel hugely satisfied with the outcome I am left with a long list of questions, some of which I set out below:

  • Why did the LA refuse Sophie a Plan in the first place?
  • Why did they wait until a few weeks before the first appeal hearing to agree to give her a Plan?
  • Why did they ignore the private reports available to them when drafting the first Plan?
  • Why did they refuse to attend a mediation or settlement meeting to narrow the issues?
  • Why did they not get any up-to-date evidence for the second appeal?
  • With no evidence of their own, why did they push the second appeal case to a final hearing?
  • Did the journey really have to be this long?

The short answer to most of my questions is “I don’t know for sure”.

The longer answer is that LA’s are buckling from lack of resources, the system is falling apart at the seams and then perhaps inevitably an ethos of inertia invades and is allowed to persist because in the SENDist, there are rarely any adverse legal costs consequences for LA’s taking last minute action and pushing cases they know they will not win to tribunal hearings, sometimes in the hope that exhausted, often unrepresented, parents will give up.

If, as a parent, you are successful with an appeal at tribunal, each party simply bears their own costs.  This is quite different to most litigation, where as a general rule, the losing party pay.

So what next?

I am so happy for Sophie and her parents; she is going to start school in September with a robust Plan setting out the support she needs.  She will begin her education on the strongest possible footing and this funny, persevering young girl is now well equipped to meet her potential.  For now at least her education appeal journey is over.

But I can’t help but think about other children with special educational needs:

  • What about the parents who don’t have the ability, strength, time or energy to face the fight?
  • What about the children who do not have a claim or the parents who cannot afford private reports or legal representation?
  • What becomes of those children; – the children who have no choice but to rely on the system and accept the outcome handed to them?

So many children and parents must find themselves in the same situation as Sophie’s family in late 2018 having been refused a Plan.

For Sophie that marked the beginning of a long journey which thankfully had a happy ending.  For a lot of children the initial LA decision to refuse a Plan is the end of the road; and that cannot be right.

The current system is unfair; children with special educational needs are being overlooked and under supported and it cannot continue.

I do not pretend to have the answers, but one way to find the answers together is to contribute to the conversation.

To this end I hope that recounting Sophie’s parent’s epic expedition to obtain a Plan can raise awareness, offer hope, and motivate families of children with special educational needs to reach out to the charities and avail themselves of the resources available to them to challenge Local Authorities where necessary and ensure their child gets the support they need to reach their potential.

One thing we can learn from Sophie’s tale is that it might be a long journey – so don’t be put off!  Buckle up and be patient.  It is worth it when you get there.

Claudia Hillemand is a partner in the Child Brain Injury team at Bolt Burdon Kemp.  If you would like to make a claim on behalf of a brain-injured child, contact Claudia free of charge and in confidence on 020 7288 4843 or at claudiahillemand@boltburdonkemp.co.uk.  Alternatively, complete this form and one of the solicitors in the Child Brain Injury team will contact you.  Find out more about the Child Brain Injury team.

Posted by: Claudia Hillemand

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