Northamptonshire Law Society
Special Educational Needs Law and EHCPs by Victoria Federico
Every fellow solicitor has the potential to come into contact with a child or young person with special educational needs, either professionally or personally. Many solicitors specialising in clinicial negligence and personal injury will be well versed in handling matters for children or young people who have additional needs, for example due to an acquired brain injury or cerebral palsy. However, for other solicitors we are told it is coming up increasingly often given the current financial climate and budget constraints within Local Authorities. Northamptonshire is not alone in being an area with an increasing amount of children with additional needs, high pressure on special school places and appeals to the SEN Tribunal. More and more families are not receiving the support their disabled child requires and often ask a trusted legal adviser, in another field, for a suggested solicitor to assist. Therefore, I hope you will find the below interesting and useful for any potential client query or personal matter. Getting the best education for their child is something that every parent worries about. For children with special needs, that is even more important. So what can parents do if they are concerned that their child is not in the right school, or is not getting the specialised help they need? Parents can request an Education, Health and Care Needs Assessment leading to the issue of an Education, Health and Care Plan (‘EHCP’). An EHCP is a legal document that describes a child’s special educational needs, the additional support required and the right school place (among other things) in which those needs should be met. It is a vital document and one that forms the bedrock upon which the best possible education can be built.
EHCPs EHCPs cover the age range from birth up to 25 years and there is a real focus on the views and wishes of the children or young person and their family to be taken into account by Local Authority Special Educational Needs Departments when drawing up EHCPs. An EHCP is a powerful tool, but it is only effective if it specifies and quantifies exactly what support a child needs. As EHCPs are legal documents it is crucially important that the content is right, and all the required support is detailed within them. The majority of EHCPs that we review for clients who have had no 10
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specialist advice are woefully inadequate and unlawful. The impact of this is that the children and young people are not receiving the vital therapies and provision they require, and are often placed in the incorrect school or college. The provision and support that a child or young person requires within school or college must be very clearly detailed, ‘specified and quantified’ in order to be legally enforceable and for the correct level of funding to be provided by the Local Authorities. If special educational provision within an EHCP is withdrawn by a Local Authority, or not provided for any reason then it is possible to judicially review the Local Authority. This is only possible if there is no ambiguity within Section F of the EHCP about the provision that must be arranged and funded. An example of this is for a child who has written into Section F of their EHCP that they “must be provided with physiotherapy, direct from a qualified physiotherapist for a minimum of 30 minutes per day”. EHCPs must be reviewed at least every 12 months. The school, parents/carers, child or young person, Local Authority representative and any relevant other professionals should be invited to attend and contribute to this review. This is a good opportunity to request any amendments to the EHCP, if the content is no longer sufficiently clear or if the child/young person’s needs have changed. The Local Authority makes a decision following the review about whether or not any
Victoria Federico - Solicitor and Head of Education Law, Shoosmiths
amendments to the EHCP will be made. If no amendments are made, but were requested then an appeal to the Special Educational Needs and Disability Tribunal may be pursued. If amendments are to be made then an amended draft EHCP will be issued and comments invited. If parents are not happy with the final amended EHCP then they will also have a right of appeal to the Special Educational Needs and Disability Tribunal.
Appeals to the SEN Tribunal Parents, and young people themselves can challenge the content of an EHCP, and this is done by appealing to the Special Educational Needs and Disability Tribunal. There is a requirement for mediation to, at least, be considered before any appeal is lodged. Appeals are a relatively complex and paperwork heavy process, with many parents and young people opting to receive legally based advice and assistance rather than tackle it on their own. Local Authorities will often instruct solicitors and barristers to represent them in these appeals. The strength of any appeal and the prospects of success are determined by the evidence available and how it is presented to the Tribunal and Local Authority, as respondent to the appeal. Seeking expert advice, ideally before lodging an appeal is
“...If special educational provision within an EHCP is withdrawn by a Local Authority, or not provided for any reason then it is possible to judicially review the Local Authority...”
