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Education Law

Expert Education Law advice courtesy of the dedicated team of nationally respected specialist lawyers at HCB.

  • Comprehensive advice on all aspects of education law
  • Proven expertise in special educational needs and higher education law

How to Convert to an EHCP

The Children and Families Act 2014 provides for an Education, Health and Care Plan (“EHCP”) to be made for young people with SEN up to the age of 25.  This will however exclude university education.

There is significant confusion as to the transitional arrangements regarding the change from Statement of Special Educational Needs to EHCP.

To place into context the difficulties in transitioning from one statutory system to another one must consider the people that are already being provided for by a Statement.

The Government reports that in 2012, 29,565 children were assessed for a Statement and 28,635 pupils were issued with a Statement for the first time.  Approximately 250,000 children receive support by way of a Statement, this does not include pupils that are provided for on School Action or School Action Plus.

In June 2014 the Department of Education provided a note to be read alongside the new SEN Code of Practice which provides the proposed transitional arrangements.

Is there a bar on parents making a request for an EHCP assessment if they have a Statement?

The previous consultation document confirmed plans to bar families of children with special educational needs from making a request for an EHCP if their child has a Statement.  This was in order so that local authorities were not overwhelmed with requests for assessment.  The note provided by the Government is now silent on this issue.  This may well be because a conclusion was reached that it was unfair (and may be unlawful) to bar parents from making a request for an assessment.

EHCP transition review

The Government has confirmed that a transfer review will take place.  This will take the same form of an Annual Education Review, however, an EHC needs assessment must be conducted in accordance with the regulations. The review must identify the special educational provision to support the child or young person and provide for outcomes (objectives) to be established for the EHCP.

How will the transition assessment process function?

The new statutory assessment process will require the Authority to obtain evidence on a young person’s SEN before issuing a plan.  It also proposes that a Local Authority cannot seek advice from professionals that have previously provided advice if the expert in question, the Local Authority, or the parents contest the evidence being used.

There is an obligation however for the Local Authority to obtain the evidence required as part of an EHCP assessment before a transition review can take place.  This evidence includes:

  1. Advice and information from the child’s parent or the young person.
  2. Evidence from the headteacher or principal of the school.
  3. Medical advice and information from a healthcare professional.
  4. Psychological advice and information from an educational psychologist.
  5. Advice and information in relation to social care.
  6. Advice from any other person the Local Authority thinks appropriate (i.e. speech and language therapist and occupational therapist).
  7. Advice and information from any person the child’s parent or the young person himself requests the Local Authority seeks advice from.

In relation to older pupils, advice must be obtained in relation to provision required by the young person to assist in preparation for adulthood and independent living

When evidence will not need to be obtained

There are provisions within the new regulations which allow EHCPs to be formulated based on previous advice given by experts.  The regulations do not require the advice to come from a “Local Authority expert”.  The Local Authority and the child’s parents or young person have however to be satisfied that the evidence provided by the expert is sufficient for the purposes of arriving at a satisfactory assessment.

When local authorities must hold a transfer review

The Government has set a four year time period (1st April 2018) to transfer all pupils from a Statement to an EHCP.  Further all pupils must be transferred to an EHCP when they are going through transition.  This includes:

  1. Early year setting to school;
  2. Infant to junior school;
  3. Primary to secondary school;
  4. Secondary school to post-16 institution or apprenticeship.

Who will be expected to transfer from a Statement to an EHCP?

The obligations increase as the years go on.  Between 2015 and 2018 Local Authorities will be expected to transfer the following groups of children and young people each year:

2014 onwards:

  1. All children with Statements in Year 6 (not those merely transferring from one institution to another).
  2. All children and young people in Year 11 (not just those who are moving to Further Education).
  3. Those moving between one Local Authority and another.

2015-2018:

  1. Children with Statements in Year 9.
  2. Children and young people with a Statement leaving custody.
  3. Children and young people issued with non-statutory EHCPs.

Planning for transitional review

The note makes it clear that the starting position would be that children with special needs would transfer to an EHCP.  However any reassessment can lead to the removal of protection for a child.  This could include either the dilution of specialist provision that a child is provided with or the removal of protection altogether.  The key for schools and families is to make sure that all advice is kept updated and that they make requests to the Local Authority for an EHCP when their evidence is at its strongest point i.e. most up to date and compelling.

Parents need to be aware that as well as assessing a child’s needs the Local Authority may well take into account “heightened” local provision for meeting children’s special needs.  As such, proper coordination must occur between school, experts, and the parents before a review is undertaken.

The process of conversion from Statement of Special Educational Needs to Education Health and Care Plan is difficult. Local authorities, schools and parents are all struggling with it. It can be very useful to take special educational needs law advice.

 

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