EHCP Introduction

Legal references on this page apply to England.

Introduction to Education Health and Care Plans

EHCPs and Home Education

If you want an EHCP in order to get support and funding while you are home educating because you say it is not elective home education but a forced choice, you could very well be disappointed as the local authority will almost certainly say that parents have opted out by home educating. Read what parents say here Some home educating parents want EHCPs because they hope it will bring the option of Personal Budgets and Direct Payments. These are extremely rare. More

The SEND Code envisages two different types of "home education" where a child or young person has an EHCP. One option is where parents - not necessarily by choice, but because they don't meet the criteria for support - opt out and take responsibility for making provision themselves. [10.32 SEND Code of Practice]. The other option, sometimes known as EOTAS, is set out in 10.31. This is where the local authority takes responsibility. It is only when the LA decides that education at home or EOTAS is the right provision that it will be obliged to fund tutors etc. This is extremely rare and in law it requires that the LA (or SEND tribunal) find it inappropriate for provision to be made in a school. My page on home education, Personal Budgets and Direct Payments is here

In elective home education parents don't have to make the provision set out in the EHCP as long as the education is suitable to the child's age ability aptitude and SEN. Case law in DM and KC v Essex 2003 demonstrates that parents cannot be obliged against their wishes to implement the specific educational programme set out in the statement (and latterly the EHCP). The SEN Code says at paragraph 10.35 "Local authorities should not assume that because the provision being made by parents is different from that which was being made or would have been made in school that the provision is necessarily unsuitable."

The first step to getting an EHCP is to have an EHC needs assessment. Although most EHCP paperwork is done by schools, parents can make the application themselves. Schools are expected to find the first £6,000 out of their budget before being able to ask for more if they can demonstrate a need. Therefore heads may say that pupils with SEN cost the school money rather than bringing extra revenue and may be reluctant to put in for a needs assessment. If the local authority refuses to carry out the EHC needs assessment, you can wait and try again with fresh evidence, or appeal to tribunal. If the local authority refuses to carry out the EHC needs assessment, you can wait and try again with fresh evidence, or appeal to tribunal. Once the LA has agreed - or been directed - to carry out the needs assessment, it may decide that the assessment shows there is no need for an EHCP. Again, you can appeal this decision at tribunal. If the LA carries out an EHC needs assessment and concedes it is necessary to prepare an EHCP, the parent may still disagree with the contents of the final Plan and go to tribunal over this as well. The whole process can take several years.

If your child is home educated and you want them to have an EHCP you may find that the authority suggests enrolling the child in school and seeing how it goes first. You don't have to agree to this. It is helpful to collect evidence to demonstrate that your child has significantly greater learning difficulties than other children of the same age and would require much greater support than other children if he/she attended school or alternatively has a disability which prevents them from accessing their education in an ordinary school. NB if the child were a pupil in school the school would expect to show that they had already made various adjustments and implemented various strategies and that these had not worked. This is known as the "graduated approach" or "Assess Plan Do Review" cycle. In my view this is a school-based strategy which relates to changes in school core funding and should not be imposed wholesale on home educators as a way to delay making an EHC needs assessment, although your case will undoubtedly be strengthened by any evidence of what has already not worked.

If you want an EHCP so your child can go to a particular school, then the council will have to agree the required category of placement [mainstream or special school] and then will have to name the school in Section I of the EHCP. Parents have a right to express a preference over which school is named but if the preferred school is further away than a comparable school (resulting more expensive SEN travel) or over the border in another local authority area, or is an independent fee-paying school, then this is going to be hugely more difficult. It helps if mainstream school has been tried and failed and/or if the council admits that there isn't a suitable local school, otherwise the default position may be try it first and see. Parents may well have to go to tribunal over placement. More on appeals here

Having an EHCP is not a barrier to taking your child out of school and beginning home education. The parent's duty is to cause the child to receive efficient full-time education suitable to age, ability, aptitude and any special educational needs he/she has, either by regular attendance at school or otherwise. Section 7 of the Education Act 1996 applies to all children whether or not they have an EHCP. Where a child or young person is a registered pupil and the parent decides to home educate, the parent must notify the school in writing that the child or young person is receiving education otherwise than at school and the school must then remove the pupil's name from the admission register. If the school is a special school, the local authority must give consent for the child's name to be removed, but this should not be a lengthy or complex process. There is no provision in law for a trial period of home education.

The local authority may want to bring forward the annual review before child can be home educated. In other cases the council may say that there has to be a meeting or that the "request" or "application" must be considered by a panel. None of this is required by law. Furthermore, there is no law which says parents have to prove that home education is "better" than school, since home education is an opt-out rather than an alternative placement.

Despite the EHCP including "health" and "care" many parents find that these services are not well-integrated into the EHCP process. Parents can request a disabled child assessment or Child In Need assessment, although this may be downgraded to Early Help and/or may be focused almost exclusively on whether the child is at risk from the parent. The Disabled Children Legal Handbook by Steve Broach and Luke Clements is available as a free download here

The EHCP must not be ceased without a review and any decision to cease can be appealed at tribunal if the family disagrees. On the other hand, if parents wish to begin the process for ceasing the EHCP themselves they can either wait till the next Annual Review or write to the authority and request that the Review be brought forward. The SEND Code says "a local authority may cease to maintain an EHC plan only if it determines that it is no longer necessary for the plan to be maintained, or if it is no longer responsible for the child or young person ..." The argument could be that the local authority isn't making any special educational provision while the child is home educated. However, if the child or young person would need special educational provision in school then they still meet the criteria for an EHCP, so in my view home education in and of itself is not grounds for ceasing.

There are other benefits to having an EHCP even if not currently receiving special educational provision It can be useful when it comes to arranging extra time or other adaptations for exams. It may be necessary for making the transition back into formal education pre or post-16, and can serve as a passport to important benefits or support elsewhere. It should be remembered that the EHCP can go up to age 25 and things may change considerably by the time a young person is 20 and may be wanting to complete their education. Many families see no benefit and find the review process burdensome and intrusive but still want to hang on to the EHCP for insurance. [SOURCE

Related Pages - Special Educational Needs

SEN Introduction home education and special needs
Home Educating With EHCP new page February 2023
SEND Code of Practice two types of home education with an EHCP
SEN Tribunal
EHCP format What goes in each section of the EHCP
Annual Review EHCP
Personal Budget and Direct Payments for education with EHCP (EOTAS)
Deregistration Taking a child out of school, including special school
Parents Survey home education and special needs
Access Arrangements for exams

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