By Dr Lee Randall, Educational Psychologist and parent of an SEND child.

This is the first in a series of upcoming blogs on EHCPs and the processes surrounding them.

Why are we seeing more EHCP applications?

For anybody working in education, it is clear that the education system is facing challenges that have not been seen for a generation. Staff recruitment and retention are more difficult than ever, families are facing the most adverse social conditions seen in decades, the impact of COVID is still being felt by many children (particularly those with SEND) and school budgets have, in real terms, never been tighter. Through all of this, children with SEND have not gone anywhere and still need the right support and provision to meet their needs and enable them to thrive. The schools I work in have put in a quite monumental effort over the past few years to provide SEND children with the support they need but there comes a point when they reach the limits of what they can financially and physically provide for children.

It seems to me that the increase in EHCP applications and completions has been due to a combination of the exacerbating effects on the needs of SEND children the aforementioned factors have had, as well as schools seeking EHCPs as a way to access the funds they require to meet the needs of SEND children and/or to enable them to access the provision they require in more specialised settings. This is of course, putting additional pressure on Local Authorities in terms of resources and funding both in terms of administrating the process and finding the funds required to enact the provisions laid out in EHCPs once they are finalised.

Now whilst I have first hand experience of the EHCP process from my work as an educational psychologist, more recently I have experienced this process as a parent when I applied for an EHCP for my son in late 2021 where the challenges and difficulties of the current EHCP system were laid bare to me. Although I will not go into great detail in this blog into what happened in my sons’ case, I can say that had I not secured private assessment and advice from another EP, a speech and language therapist and an occupational therapist, I would not have been confident that the EHCP produced would have been close to adequate in terms of representing my sons needs and required special educational provision.

It is this experience that has prompted me to begin writing this blog series because for many reasons, staffing chief amongst them, it is increasingly clear to me that local authorities (LAs) may not be executing their statutory duties with regards EHCP processes in a consistent manner, as they are required to by law. This can lead to children getting poor quality and inappropriate EHCPs that do not meet their needs or even being denied an EHCP in cases where, by all rights, they should have one. As such it is vital that schools are aware of what the law and processes around EHCPs are, so that they have the best chance of securing appropriate EHCPs for the children who require them. So, for this first blog, I’m going to focus on the application process as this is the starting point for any EHCP.

The Legal Basis of EHCPs

Though there are other pieces of legislation which underpin this act such as the equality act 2010, The Children and Families Act (2014) is the law which forms the basis of everything we do with EHCPs and SEN in schools. The SEN Code of Practice (2015) is the statutory guidance which is based on the law and designed to outline how EHCP processes should run and what the roles and responsibilities of those involved in the process are. There is then also Case Law, which is the cases that have been brought to court (often the high court) which are seen as exemplars of how to apply the law.

These are the legal bases of the EHCP process and are the only things that carry any legal weight with regard to how EHCPs should be conducted. However, local authorities tend to have their own Policies to which they operate EHCP processes. Though these should be based on the law, there are some policies that may not strictly conform to the law and as such, carry no legal weight. It is important therefore that when engaging in the EHCP process on behalf of children and families you are aware of what the law says should happen as there are far too many occasions in which LA staff may be operating according to policies that are not necessarily lawful. We must remember that just because LA does something in a certain way does not mean they are necessarily doing it in the right way or even in a legally defensible way. Below I will outline what the law says about how the application process should operate.

Requesting an Assessment

• A young person, a parent, a school or college can request an assessment from the LA.
• Only an LA can conduct an assessment.
• The LA must have a clear and accessible mechanism through which requests are made and assessed.
• The LA must make a decision regarding whether an EHC assessment will take place within 6 weeks of the application being made.
• It is only through this mechanism that an EHC can be issued.

Getting a ‘Yes’ or ‘No’ to Assessment

• The LA MUST assess a child for an EHCP (i.e. give a ‘yes to assessment within 6 weeks) if there is evidence that:
• The Child or Young Person has or may have SEND and
• It may be necessary for specialist educational provision to be made for the child in accordance with an EHCP.
• That is pretty much it!
• As such, there should be very few cases where an EHCP is requested and an assessment should not be carried out. Basically, if the child has SEND and there is any question that the school may need to access additional resources beyond their typical SEND offer to meet the child’s needs, then the LA must assess the child. It is important to note that at this point, it is not necessary to prove that the child definitely needs an EHCP; there only needs to be the possibility that they may need an EHCP.

Getting a ‘Yes’ or ‘No’ to EHCP

• At ‘Yes to Assessment’ stage, LA must gather information and advice from the child, family and professionals. When information is requested, it must be provided within 6 weeks.
• Once evidence is collected and drawn together, the LA must consider whether it is necessary to issue an EHCP by asking the following question.
• Will the child or young person receive the Special Educational Provision (SEP) they require without an EHC plan?
• If Yes – then their current school can meet their needs within their current SEND offer and as such, an EHCP is not needed.
• If No – then their current school is unable to meet their needs within their current SEND offer and as such an EHCP is needed.
• This is very much dependent on professional advice and the specific judgements being made about the child and is less cut and dry than the decision at the yes/no to assessment stage. As such, our focus should be on 2 key areas:
  • Identifying the SEP required by the child or young person
  • Identifying whether the SEP can be provided by the school or other setting without an EHCP
• Essentially, if we are able to demonstrate that the child’s needs cannot be met within the typical SEND offer of the school, then that child should be getting a ‘Yes to EHCP’ decision.
• A ‘No to EHCP decision’ or a ‘Yes to EHCP’ with a draft EHCP must be issued within 16 weeks of the initial request for assessment.
• Parents have 15 days to make comments or request amendments to draft and request a school placement.
• Parents can appeal against a no to EHCP decision within this 15 day timescale.
• Final EHCP must be issued within 20 weeks of the initial request for assessment.

And that’s the basics of applying for an EHCP! If you have found this blog useful then do look out for upcoming blogs on other issues around EHCPs including annual review processes, what to do when contesting EHCP decisions, issues around mainstream & special school placements or EHCP tribunal processes.

Acknowledgements

Both in negotiating my own journey through the EHCP process as a parent and in the work I do around EHCPs as an EP (including writing this blog!) I am forever indebted to the fabulous people at IPSEA (Independent Provider of Special Education Advice). For more information on EHCPs and the incredible work done by the organisation, visit https://www.ipsea.org.uk/