EHCP Introduction

In general when parents take their child out of school there is no support. EHCP [Education Health and Care Plan] funding does not follow the child. Personal Budgets and Direct Payments are extremely rare. Read more here. My introduction to special needs is here.

Two Different Types of Home Education

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]. Read more about home educating with an EHCP 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 SEND Code of Practice 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 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. Read my page on EOTAS here.

First Step to Getting EHCP

The first step to getting an EHCP [Education Health and Care Plan] is to apply for an EHC needs assessment. Although most EHCP paperwork is done by schools, parents can make the application themselves. Schools may not be keen to apply for EHCPs since they have to spend more of their own money first, then they have to fill in extensive paperwork, and thirdly they expect the application not to be successful.

Parents can make the EHC application themselves. It is important to demonstrate that your child 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. Explaining what has been tried with school or nursery can be useful supporting evidence.

The law uses the word “may” in relation to the 2 questions for EHC needs assessments namely 1/ whether the child may have special educational needs and 2/ whether it may be necessary for special educational provision to be made. [Children and Families Act 2014 s36]

The bar is lower for the EHC needs assessment than for the EHCP itself. The test for the actual EHCP is that the child must have special educational needs and that it is necessary for special educational provision to be made. [s37]

Not all children with special needs will require special educational provision because some needs and disabilities can be accommodated in schools without an EHCP and this can be a reason for LAs to refuse a needs assessment or an EHCP.

Special educational provision is defined as “educational or training provision that is additional to, or different from, that made generally for others of the same age in— (a)mainstream schools in England, (b)maintained nursery schools in England, (c)mainstream post-16 institutions in England.” [Children and Families Act s21]

Learning Difficulty or Disability

The law considers two different things in deciding whether special educational provision is required. Either the child “has a significantly greater difficulty in learning than the majority of others of the same age” or the child “has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.” [s20]

A disability which prevents or hinders from making use of facilities generally provided can cover situations where there is no specific learning difficulty but the child has a disability which means they are unable to attend mainstream school ie where they could keep up with lessons if they were in school but they can’t be in school. Read my page on EOTAS here.

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. The LA may decide the assessment shows there is no need for an EHCP. Again, you can appeal this decision at tribunal. My page on tribunals is here.

Social Care and Health

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 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 or in a kindle version here

Final EHCP – Your Options

The final EHCP will include Sections A to K. Section A contains the family’s views and is not legally enforceable. Section F is where the special educational provision should be specified and quantified. Social care provision and health provision which educates or trains a child (such as speech therapy) can be deemed special educational provision and included in Section F. Read more about how the EHCP will look here.

Once an EHCP has been issued, the parent may disagree with the contents of the final Plan or with the school named. However, naming a school on the Plan does NOT mean the child automatically has to attend or keep attending the school -read more here. You can always opt out and home educate at your own expense. You can also appeal to tribunal. My page on tribunals is here

Taking Child With EHCP Out of School

I have information here about taking a child with an EHCP out of mainstream school. The school does NOT have to get permission or approval from the local authority. Read more here. The rules for special schools are different, read more here.

Legal Document

The EHCP is a legal document which imposes statutory duties on the local authority. The LA has a duty to review the EHCP at least annually. Read my page on annual reviews here. The LA also has a duty to secure the provision (unless parents have opted out) which means you can complain to the Ombudsman; read my page on getting the best out of complaints here.

Having an EHCP can be useful for getting Access Arrangements in exams, but you will still need to show the “normal way of working.” There can also be financial reasons to get an EHCP for college at 16, read more here.

Ceasing EHCP

The EHCP must not be ceased without a review and any decision to cease can be appealed at tribunal if the family disagrees. Provision must continue until after the time for appealing to SENDIST has passed (if no appeal) or until the appeal is concluded. [Children and Families Act 2014 s45] At the time of writing in July 2023 appeals are taking around a year.

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 rules for determining whether to cease the EHCP are set out in Regulation 29 of the SEND Regulations 2014.

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.