Expert Advice

Advice about SEND education

2nd June 2017 | |

My Family, Our Needs has been featuring questions sent in from parents needing help with their disabled child’s education. Thanks to the advice of SEND lawyer Ed Duff, Senior Associate Lawyer at HCB Widdows Mason, we’ve been able to answer them and today we’re featuring one about rights to education in EHCP’s.

Q. Rights to education in EHCPs

My daughter has a draft EHC plan that clearly identifies her needs.  In July 2017, she will no longer have an educational placement.
We are working with social care to consider opportunities available to promote independence etc. What responsibilities does the local authority have to ensure she receives her educational entitlement post-July. given there is an EHC plan?
Your guidance and advice would be very much appreciated.

Bernie Dornan

A.

For as long as an Education, Health and Care Plan (EHCP) is maintained by the local authority, the local authority is responsible for discharging it. That responsibility is not just a general responsibility, but goes to every Section of the EHCP.

In respect of the EHCP, there are several operative elements within it which set out what the local authority should be providing.

Section F of the EHCP sets out what special educational provision the local authority will ensure is made available. Section G sets out the health provision that the clinical commissioning group is responsible for providing and Section H sets out the social care that the local authority is responsible for delivering.

Section I sets out the placement that the young person must be attending. This includes the name and type of the school. A local authority is entitled to name type only, but Section I cannot be entirely blank.

If the local authority is intending to maintain the EHCP then it should, at the very least, set out the type of placement that it would make available for your daughter as from July 2017. There is simply no lawful option to leave Section I empty. However, further, Section F, Section G and Section H can operate in isolation as well as combined with Section I. What that means is that, whilst the local authority may have not named a school, that does not relieve it from needing to make the provisions contained within those other Sections.

As such, what you could do is seek to challenge the content of the EHCP. Your option would either be to raise an appeal with the Special Educational Needs and Disability Tribunal or, if that is out of time, highlight to the local authority that it has prepared an unlawful EHCP and that it must name at least type within Section I, failure to do so may result in an application for Judicial Review.

As such, whilst you may have to face either an appeal or litigation by way of Judicial Review in order to resolve a Section I issue, during the interim period the local authority does still remain responsible for the content of Sections F and H of the EHCP. The clinical commissioning group remains responsible for Section G of the EHCP. That responsibility only ends if the local authority communicates a decision to cease to maintain the EHCP. If such a decision is communicated that gives rise to right of appeal to the Tribunal. If you explore that right of appeal, the very moment you lodge the appeal with the Tribunal, the local authority’s decision to cease to maintain the EHCP is suspended until the Tribunal reaches a final decision. Clearly, if the Tribunal then makes a decision that the EHCP should not be ceased, then the decision is revoked entirely.

If social care is currently considering options in respect of promoting independence that seems entirely sensible, but that relates to the social care elements of the EHCP which are contained within Sections D and Sections H of the EHCP. That does not impact upon either Section I or Section F, which are the operative education elements of the EHCP.

Thank you to each parent or family member who contacted us, we hope we’ve been able to help thanks to our SEND lawyer Ed Duff. Get in touch with Ed and find out more about how he can help parents with their child’s education.

Our next expert is all about sleep, something we know can be a big issue for lots of families. Vicki Dawson, Chief Executive of the Children’s Sleep Charity will be answering your questions in June, so send them in to us now. Email hello@myfamilyourneeds.co.uk or contact us via Twitter @weareMFON

 



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