Education Healthcare Plans (EHCPs)

WellChild and Irwin Mitchell share a vision to help build stronger communities. We have teamed up to create a legal section for the WellChild Information Hub.

This article on Education Healthcare Plans (EHCPs) is the second in a series of legal articles aimed at families with children who have complex medical needs.

What is an EHCP?

EHCPS are for children and young people up to the age of 25 who require additional support while in education.

Importantly, an EHCP is a legally enforceable document that a Local Authority must implement. This is a statutory duty (the laws that a company, a government organisation, or the members of a particular profession must obey) and is found in Section 37 of the Children and Families Act 2014.

Therefore, it gives more protection than a SEN support plan, also known as an Individual Learning Plan (ILP) or Personal Learning Plan (PLP). 

ILPs or PLPs are designed to support a child throughout the academic year and outline the support that will be put in place. They can be written to support any child in England and this is often a step taken by a school before applying for an EHCP. They are not legally enforceable documents.

How do I apply for an EHCP needs assessment?

The application is made to your local authority; if you are unsure who your Local Authority is, you can check here. 

Parents, Carers and the Young person (if they are over 16) can apply for an EHCP.

The local authority will decide, from the information provided, whether to assess the child. The local authority must reply to you within six weeks. This timeframe is stipulated in the Special Educational and Disability Regulations (4) (1).

If the local authority refuses to proceed with an EHCN (educational healthcare needs assessment) it must clarify in writing why this decision has been made.

You do have the right to challenge this decision in a SEND tribunal, which we discuss further in this article.

The EHCN Process

You may be asked to supply evidence if the local authority proceeds with an EHCN assessment.

The evidence required for an EHCP is set out in section 6 of the Special Educational Needs and Disability Regulations 2014.

Click on the yellow box to see what types of evidence may be required.

The local authority has a statutory duty to undertake the assessment; it cannot delegate the duty to a school or other body.

The local authority must inform you within sixteen weeks whether an EHCP will be made. If your child is not granted an EHCP you have the right to appeal this in the SEND tribunal.

Creating an EHCP

The local authority will create a draft of the EHCP from the information they have gathered in the EHCN assessment and send it to you. The format of the EHCP may vary depending on the local authority.

This is set out in section 13 (1) of   The Special Educational Needs and Disability Regulations 2014 (legislation.gov.uk). You have up to 15 days to respond to the contents, including to request the placement you want for your child.

You have the right to request a placement providing it is:

• A maintained school or nursery school
• An academy
• A further education institute
• A non-maintained special school
• An institution approved by the Secretary of State under section 41 of the Children and Families Act 2014

The local authority must consult with the placement of your choice provided it meets the specified criteria. The local authority must name a requested maintained placement unless the school or other institution requested is unsuitable for the age, ability, aptitude, or special educational needs of the child or young person concerned or that the child or young person’s admission would be incompatible with the education of others.

The local authority may decline to name a non-maintained school on the grounds that it would amount to unreasonable public expenditure.

You can lodge a formal complaint if you do not get a response within 20 weeks. You can find template letters to assist with the complaint here. You may also be able to bring legal proceedings on the grounds that the local authority has failed to meet the statutory timescales.

The Contents of an EHCP

The contents of an EHCP should be quantifiable and measurable, meaning the targets are specific, realistic, and easily trackable.

An EHCP is split into sections, click on the yellow box to see each section:

You have the right to appeal against the contents of an EHCP and/or the named placement within the SEND Tribunal.

The Council for Disabled Children have examples of good EHCPs for your reference, which you can find here. 

How to appeal

You may wish to appeal a decision made. You can appeal as a parent or carer. A young person can also appeal in their own right.

Section 55 Children and Families Act 2014  specifies that unless the appeal is only against the institution named in the EHCP, only against the type of school named, or against the fact that no school or institution is named, you will have to speak with a mediation advisor before lodging the appeal.

A mediation advisor is impartial and can assist both sides in reaching an agreement. Details of how to contact the mediation service in your area should be detailed in the local authority’s decision letter.

At the end of the mediation, you will be given a certificate; you will need this if you still wish to appeal via a tribunal.

You can find further information on the appeal process here.

The SEND first-tier Tribunal

The SEND Tribunal handles appeals against local authority decisions regarding special educational needs.

The decisions that can be appealed are set out in section 51 (2) of The Children and Families Act 2014.

Click on the yellow box to see the decisions you can appeal against:

Special Education Needs and Disability (SEND) Tribunals are designed to be as parent-friendly as possible and are usually held online. If the appeal is being held in a venue, it should be within 2 hours of travel from your home and you can take your child if required. To find information about claiming travel expenses for going to the hearing, click here.

You do not have to go to the tribunal, but it is strongly recommended you go, so you can ask questions and present the case yourself. You may also wish to get legal representation who will have experience with the procedures and can provide expertise, but this is not essential and will incur costs.

If you are on a low income or receiving certain types of benefits, you may be eligible for legal help. In limited circumstances, a young person may qualify for legal aid in their own right. The legal aid eligibility keycard sets out details of who qualifies.

The tribunal will also need to make reasonable adjustments to allow you to participate in the hearing, such as hearing loops or disabled access.

You can find information on what happens if you win your appeal here.

You can find information on what happens if you lose your appeal here.

You can find further information about the service that handles appeals against local authority decisions regarding special educational needs here.

I live in Wales

Local authorities in Wales don’t issue EHCPs. In Wales, you can get an Individual Development Plan (IDP).

You can download a booklet for parents and carers of children who have special educational needs on the Welsh Government Website here.

I live in Scotland

Local authorities in Scotland don’t issue EHCPs. In Scotland, you can get a Coordinated Support Plan.

You can find further information on Coordinated Support Plans at the Scottish Government’s website here.

I live in Northern Ireland

Local authorities in Northern Ireland don’t issue EHCPs. In Northern Ireland, you can get a Statement of Special Educational Needs.

You can find further information on Statements of Special Educational Needs at the Northern Ireland Government website here.

The Right to Education

It is important to remember all children and young people have a right to education whatever their difficulties.

Local authorities must ensure education is accessible. It is possible that you do not think a school or college is the right environment for a child or young person.

Lauren Haines, an education solicitor from Irwin Mitchell will discuss elective home education (EHE) and education other than at school (EOTAS) in another article in the series due to be published later this year. Until then you can find further information here.

Education Team at Irwin Mitchell

Irwin Mitchell’s highly experienced education team can provide advice, support and representation in all aspects of education law, at any stage of a dispute.

They can advise you on bringing a challenge where your child has been denied a place. Seeking legal advice and support will give you the best possible chance of success in your appeal. We can scrutinise admissions criteria, and advise on the merits of bringing an appeal and therefore the likelihood of an appeal’s success. We can advise on evidence and information to provide in support of your appeal and meet specified deadlines.

See Education Law Solicitors for further information.

The information in this article was correct at the time of publishing but may be subject to change

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