When your child has an immunodeficiency, and perhaps other complex medical conditions, they may need an education, health and care plan (EHCP) to cover the special needs that are associated with their condition.
What is an EHCP?
An EHCP describes a child or young person’s (up to the age of 25 years) additional educational, health and social care needs and the support that has been agreed and put in place to help meet them. It replaced statements of special educational needs (SEN) and learning difficulties assessments.
An EHCP can only be issued after a child or young person has had an EHC needs assessment. At the end of that process, the local authority must decide whether or not to issue an EHCP.
The Council for Disabled Children helps parents and young people navigate the EHCP process.
An EHCP should explain:
- Special educational provision that should be made for your child
- Healthcare provision that meets your child’s needs
- Social care provision that is being made for your child.
Healthcare provision is defined as ‘the provision of health care services as part of the comprehensive health service in England’. Social care provision is defined as ‘the provision made by a local authority in the exercise of its social services functions’.
It is only special educational provision that is relevant in determining whether a child has special educational needs. A child or young person will only be able to have support under an EHCP if they have special educational needs which require special educational provision. If a child only needs healthcare provision or social care provision, they will not be eligible for an EHC needs assessment or to have an EHCP.
Timings for an EHCP
Weeks 1–4: Requesting an EHCP
If you believe that your child needs an EHCP you need to first ask your local authority to carry out this assessment. This request can be made by yourself, your child’s nursery, school or college, their doctor or their health visitor.
It can reduce delays if your child’s nursery, school or college makes the request from your local authority.
If your local authority agrees that your child would benefit from an assessment, it will need information from:
- An educational psychologist
- A paediatrician
- A social worker
- Any other professional that works with your child.
If the local authority refuses to issue an EHCP you, as the parent, must be informed of its reasons and also that you have the right to appeal to the Special Educational Needs and Disability Tribunal.
Every person that is asked to provide information about your child must reply within six weeks. It is important to keep all appointments relating to the assessment to prevent any delays.
Once the written reports have been provided, a draft EHCP will be put together.
Each local authority can develop its own format for an EHCP, but legally the plan must contain a number of separate sections – a checklist of which you can view here.
At this stage you will be asked to name the type of school/college you want your child to attend, e.g. mainstream or special school or a specific school/college that is to be named in the EHCP.
- Maintained nursery school – mainstream or special
- Maintained school – mainstream or special
- Academy (including Free school, Studio school or University Technical College) – mainstream or special
- An institution within the further education sector in England – mainstream or special
- A non-maintained special school; or
- An independent special school approved by the Secretary of State under section 41.
The local authority will then consult with that school/college about being named in the EHCP. A local authority must do its best to ensure a child attends unless one of the following applies:
- The school or other institution is unsuitable for the age, ability, aptitude or special educational needs of the child or young person
- The attendance of the child or young person would be incompatible with the provision of efficient education for others
- The attendance of the child or young person would be incompatible with the efficient use of resources.
The EHCP draft will be presented to the Special Educational Needs and Disabilities (SEND) panel, who will decide whether to go ahead with it or not.
Your local authority will let you know of this decision, and if the SEND panel does agree to go ahead, you will receive a copy of the proposed plan and given 15 days to respond if you would like any changes made to it.
You should receive the details of the final EHCP and the support that has been arranged to help your child. The local authority has a legal duty to arrange the health care provision specified in the EHCP.
If the SEND panel does not agree to issue an EHCP, your local authority will send you a non-statutory plan and your child’s nursery, school or college will use this to guide the special educational needs support they provide.
Final EHCPs and enforcement
A final EHCP will name a type of school/college and usually name an actual school/college. Once named in an EHCP the school/college must admit the child or young person and put the educational provision in the EHCP into place. This can happen even if the school/college argued at the draft plan stage that the child or young person should not be placed with them.
When a final EHCP is issued, the parent/young person has a right of appeal to the SEND Tribunal about:
- The description of a child or young person’s special educational needs;
- The special educational provision specified in the EHCP; and/or
- The name/type of school or college in the EHCP or the fact that no school/college is named.
Your local authority has the legal duty to ensure that the special educational provision specified is delivered. It may well expect the school or college named in the EHCP to do this but ultimately if the school/college does not have the resources – the finance, specialist equipment or expertise – the local authority must provide it. This includes any therapies, such as speech and language therapy, occupational therapy or physiotherapy, or the services provided by CAMHS (Child Adolescent Mental Health Service) which are needed for education or training purposes. The local authority may well arrange that these are delivered by the local health care partner, but if the partner is not able to do so, the legal duty remains with the local authority to arrange them – possibly from an independent therapist.
To help your EHCP process there are several things you can do:
- Speak to your child’s headteacher or the special educational needs coordinator (SENCo). Find out what level of support they already receive, if any.
Ask to be provided with a record of any educational interventions used and comments about how it has worked and whether your child has reached their target. Gather together any reports or tests your child has ever done.
Maintain a positive relationship with your school’s SENCo and class teacher.
2. While your child has been diagnosed with an immunodeficiency, it is important to focus on their symptoms and any other diagnoses they may have. A firm medical diagnosis can be helpful.
3. Find out your local authority’s SEN policies. A lot of the information is on their website but remember their policies do not trump the law. You can find the government publications here.
4. If your local authority has a document outlining its policies, read these and use them to show why your child isn’t getting the support they should be.
5. If your child’s needs are not visible, getting the help you deserve can be difficult, so you will need to be determined.
6. If you do not feel confident reading and analysing complex documents, then ask a friend for support or approach some of the excellent charities that can help.
Mediation and appealing an EHCP decision
If your request for an EHCP has been refused you can appeal this decision.
Before you appeal you must consider mediation. When your local authority makes its decision about the EHCP for your child, it will send you a letter about how to contact the mediation service.
A mediation adviser will explain how mediation works and bring you and your local authority together to discuss the problem.
If you don’t proceed with the mediation service, you will still need a mediation certificate so you can proceed to appeal.
You can appeal the decision for your child if they are under school-leaving age or on their behalf if they are over school-leaving age. To appeal, download form SEND35.
The tribunal must receive your appeal within 2 months of the date of the local authority’s decision letter or a month from the date of the mediation certificate.
To change your appeal, you will need to fill in form SEND7. To withdraw your appeal, you will need to complete form SEND8. If you lose your appeal, here are three possibilities:
1. You can get the decision ‘set aside’ (cancelled) if you think there’s been a mistake in the process.
2. Ask the tribunal to ‘review’ the decision, e.g. if your circumstances have changed since you got the decision.
3. Ask for permission to appeal to the Upper Tribunal Chamber if you think the tribunal has made a mistake and acted against the law.
Your decision letter will tell you how to get the decision set aside or ask the tribunal to review the decision.
If you win your appeal, your local authority must act immediately.
Below are some links to websites with more information on EHCPs:
Posted August 2022