Education, Health and Care Plans (EHCPs) – update Laxmi Patel 15 November 2017

Content Changes as a result of the Children & Families Act 2014 (CFA) Areas of concern Changes in appeals to the Special Educational Needs and Disability Tribunal (SENDIST) Key case law since the CFA

Changes due to the CFA ‘New’ law – from 2014 ‘Old’ law – until April 2018 Education Act 1996, Part IV and Sch 27 Education (SEN) (England)(Consolidation) Regs 2001 Children & Families Act 2014 (CFA) – Part 3 The SEND Regs 2014 SEN (Personal Budgets) Regs The CFA (Transitional and Saving Provisions) Order (and amendments)

New Code of Practice SEND CoP – 0-25 years (Jan 2015) Chapter 9 sets out info about assessments and plans S77 CFA – Must ‘have regard’ to CoP NB. Local Authority (LA) may have its own local policies but CoP will always carry greater weight and CFA and Regulations will have the last say

The Children and Families Act 2014 aimed to bring about changes The Lamb Inquiry 2009 – a new system with: Focus on better outcomes and delivering support needed to achieve Greater focus on children’s needs Stronger voice for parents & cultural shift in working with families A more accountable system that delivers better services

Key changes One document, EHCP, replaces Statements and Learning Difficulty Assessments (LDA) 0-25 years More involvement from CYP and parents It ‘may’ list provision in all three areas Only education sections can be challenged to the tribunal – but tribunal has/is trialling recommendations for health and social care Local offer Joint planning and commissioning of services Mediation requirement before an appeal Personal budget

Transition from Statement to EHCP All transitions to EHCPS must take place by 1 April 2018 Statement and EHCP systems will operate in parallel until 1 April 2018 Intention is for LAs to transfer over at phase transfers

Local area SEND inspections: one year on – CQC and Ofsted https://tinyurl.com/y9qazpym I52 local area inspections over 5 years looking at effectiveness in 3 main aspects: Identifying SEND Meeting needs Improving outcomes

CQC and Ofsted findings (1) CYP identified as needing SEND support had not benefited from the changes well enough. Exclusions/absences or missing from school much more frequently than other pupils. School leaders used unofficial exclusions too readily to cope with CYP with SEND. Access to therapies was weak in ½ of areas inspected. Access to CAMHS was poor in over 1/3 local areas. Not enough progress in implementing coordinated 0-25 service for CYP with SEND

CQC and Ofsted findings (2) CYP identified well in the early years. > 1/3 areas did not involve CYP or parents sufficiently in planning and reviewing provision. Many area leaders were unaware of the depth of frustration among parents or what their concerns were about. Many parents lacked confidence in ability of mainstream schools to meet their child’s needs. Varied success in securing personal budgets. Local offers not effective in helping to access info in > ½ areas. Statutory assessment process was not working well enough in > 2/3 of areas inspected.

Concerns Family/young person not fully involved Deadlines missed – 20 week assessment/transition from Statement to EHCP Deadline to transition all Statements to EHCPs by 31 March 2018 Assessments not carried out when they should be – at transition Health and social care not engaging with the process

Concerns cont. Lack of joint planning at higher level Cuts to LA budgets – seeing more ‘EHCP alternatives’ – eg ‘Our Plan’ Refusals to assess Refusals to issue a Plan Content of Plan – Education provision still misplaced under Health Few personal budgets agreed Lack of special college placements post-18/19

What’s next? The following are in the pipeline: Advice from Tribunal on key points that experts should address - to be developed with professional bodies. The idea is to draft a series of questions for professional witnesses to answer e.g. the time/frequency they have met the CYP; the formal assessments carried out, results and analysis; specify SEN and SEP; progress CYP has made; specific outcomes expected to be achieved if SEP is put in place. Restriction on size of bundle – more concise reports Health and social care recommendations

Procedural changes to Tribunal bundles coming soon Bundle guidance – capping of number of pages of evidence each party can automatically submit in an appeal. Core Bundle+ Refusal to Assess = 75 pages Refusal to Issue EHCP = 100 pages Appeals for sections B & F = 150 pages Appeals for section I = 100 pages Cease to maintain EHCP = 100 pages

The SEND (First-tier Tribunal Recommendation Power) (Pilot) Regulations 2015 – what’s next? Feb – August 2016 17 Local Authorities took part Outcome – DfE – SEND Disagreement Resolution Arrangements in England, 29/03/2017 http://tinyurl.com/l56rmzc New 2-year trial in early 2018 – all LAs

Initial learning from the pilot Supported positive working between SEN + Social Care – more holistic view of the child/YP Health issues raised were not significant or clinical issues Particularly relevant or: Post school/FE placement issues – education vs. Social Care Residential school placements where there is no educational need

Case Law Devon County Council v OH [2016] – re ‘best possible outcomes’ S v Worcestershire County Council [2017] – Tribunal can make changes to Section E i.e. Outcomes Hillingdon v WW [2016] & Buckinghamshire v SJ [2016] - clarity on mental capacity and who brings the appeal

Case law cont. Buckinghamshire v SJ [2016] – meaning of education LA decided not to issue EHCP because remaining in formal education for longer would not help Ryan to make any significant progress and/or better achieve the transition to adulthood. LA had placed Ryan in an adult care home. UT decision – ‘any further achievements would be small. That does not mean that they would not be valuable for Ryan in his adult life. The Tribunal found as a matter of fact that it would and there was evidence to support that conclusion’.

Case Law cont. Gloucestershire County Council v EH (SEN) [2017] – when is an EHCP necessary? Case concerned an 18 year old young person (YP) unable to attend school due to high anxiety. There was indication that he may pursue an Open University (OU) course. LA declined EHCP because this would be higher education. YP appealed. Found that FTT has to consider situation at time of hearing – YP was no longer pursuing OU. What we can learn – YP does not have to specify the exact provision they may require. It is for the LA to establish that provision can be delivered without an EHCP.

Thank you – any questions? Laxmi Patel 0118 952 7219 advice@senexpertsolicitors.co.uk www.senexpertsolicitors.co.uk https://www.facebook.com/SENSolicitors Twitter @bt_sen1