EHCPS – guidance on securing the best possible outcome

Education, Health and Care Plans (“EHCP”) are issued to children and young people (0-25 years) in England who have special educational needs and who meet the legal test set out in Section 37(1) of The Children and Families Act 2014, which says:

“(1) Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan-

(a) the local authority must secure that an EHC plan is prepared for the child or young person, and

(b) once an EHC plan has been prepared, it must maintain the plan.”

Where your child / young person has gone through an assessment and your Local Authority has issued a final EHCP, it should contain a description of your child / young person’s needs in Section B, a description of the outcomes your child / young person is aiming to achieve in Section E, the provision required to meet those needs / outcomes in Section F and the setting they are to attend in Section I.

Section B should be an accurate description of your child / young person’s specific difficulties, not just a list of what they can or can’t do. Set out here what their specific barriers to learning are. Be explicit – don’t assume any prior knowledge for the people reading the plan / working with your child / young person. If the EHCP is being reviewed, try to ensure that it reflects the current position. Historical difficulties aren’t important if they’re no longer an issue. If you’re seeking reports from professionals working with your child / young person, make sure they’re written with the school in mind (particularly if you’re looking for an alternative setting), check your child / young person’s needs aren’t in contradiction with what professionals say their needs are.

Section E should set out the outcomes that your child / young person is aiming to achieve, both in the short-term and long-term. You should consider how achievable the outcomes are, alongside how specific they are. Ask yourself, how will you know that they’ve been achieved? What do you want your child / young person to be able to do, that they’re currently unable to do? Try not to be specific to a particular environment or approach within the outcomes as the school / college may need to change the approach for example, if the approaches being used aren’t helping your child / young person to progress.

Section F should describe what’s required to fulfil the outcomes in Section E, to meet the needs in Section B. Make sure that provision is specific and quantifiable. This is particularly important so that the school know what they have to deliver. Having said that, do try to be realistic in terms of provision.

The school needs to be able to deliver the curriculum to its students and if an EHCP is too heavy with interventions, it’s likely to be very difficult for the school to deliver the curriculum to your child / young person. This may mean that schools refuse to offer a place to your child / young person in the consultation phase, because they simply wouldn’t be able to meet need. When thinking of the provision to be included, think about the impact it’ll have i.e. what works in a primary school setting, may not work in a secondary school setting / college setting and vice versa, will your child / young person be part of the school community or will they be isolated with all of the provision required?

Section I should describe the type of setting and specify the name of the setting your child / young person will attend. If you’re seeking a specialist setting for your child / young person, you should contact the placement about visiting, applying etc. as the process can be different, particularly with independent specialist settings. Their assessments can be very detailed and helpful as evidence in a Tribunal appeal if your Local Authority doesn’t agree to name your preferred setting. If seeking a different placement for your child / young person to the one they’re currently attending, you should be aware of your right under section 38(3) of the Children and Families Act 2014 to request an independent special school / college setting, known as a Section 41 setting. Click here for more information.

Your Local Authority will be required to name your preferred setting in Section I unless it’s unsuitable taking into account your child / young person’s:

• Age
• Ability
• Aptitude
• SEN, or
• Attendance of your child / young person would be incompatible with the provision of efficient education for others, or
• With the efficient use of resources.

If you’re seeking an independent setting which isn’t Section 41 approved, you’d need to provide an offer of a place to attend, and to evidence that no other settings can meet your child / young person’s need (Section 39(4) of The Children and Families Act 2014).  You could do this by:

• Asking your Local Authority to consult with your preferred setting(s)
• Reviewing the Local Offer from your Local Authority. Review what other possible local options there are and consider suitability – can you rule them out?  Why wouldn’t they be suitable?
• Gathering as much evidence as you can – independent professional reports ideally, but also anything from your child / young person’s current setting to evidence their needs, other professionals working with your child / young person etc.

If you’re seeking a specialist residential setting for your child / young person, you’ll need to show that they require a curriculum that applies skills learned during the school day, outside of those hours i.e. a waking day curriculum. This will depend on the evidence available, particularly from an Educational Psychologist. You should ask yourself, does your child / young person find it difficult to generalise skills across different settings (home, school etc.)? You should also request a Child In Need assessment (Section 17 Children Act 1996) from your Local Authority to assess your child / young person’s social care needs and / or a Continuing Health Care assessment if they have significant health needs. They may be entitled to certain provision as a result of these assessments that would be factored into the cost analysis by the Local Authority when considering different settings that could potentially meet your child / young person’s needs.

Find out how our national team of dedicated SEN solicitors can support you.