Thursday, 15 August 2013

Should statements be replaced by EHC plans now?

Question: I have a daughter whose statement is out of date and I would like it updated as her needs have changed. The local authority (LA) are amenable to this as are the school.

The LA has said as a pathfinder authority they are writing all new statements in the form of the new EHC plans (which I understand aren’t to come into law for at least another year). They have said the current law still applies so if I am unhappy with any aspects of their proposed document I still ultimately can appeal to the Tribunal. They have said if I prefer they could still write it in the old statement style.

The question is, is their advice correct and is there any reason for me not to accept this advice?

IPSEA’s answer: Unless the EHC plan follows the format and content laid down in current law for a statement of special educational needs, it will not be a statement, will not be appealable to the Tribunal and will not oblige the LA to arrange the provision (until the law changes). We are not sure what ‘old statement style’ means, but the document will only do what a statement does if it follows the strict pattern of a statement, the model for which is in the current SEN Regulations, with further advice on what it should contain in the SEN Code of Practice, chapter 8.

This means that if your daughter’s statement is replaced by a plan which does not follow this pattern, she will have at least a year with no guarantee of provision, over which you will have no appeal right. It will mean that in effect she is going back to school action plus. So we think there’s good reason for not accepting this ‘advice’, and that the LA themselves may be misinformed as to the law.

The law is not changing until September 2014 at the earliest, which means that people in this pathfinder authority will be in limbo for a year if they accept an EHC plan now. The Regulations which will cover the new plans and the revised Code of Practice are not yet even in consultative drafts, so that LAs do not know yet how to write plans. In effect they are experimenting with an untried and ungoverned system.

It’s questionable whether in law LAs can do this until after the law changes. LAs must maintain statements until children no longer need them, and they cannot simply ask parents to waive their child’s rights. If statements are ceased then parents must be issued with a formal notice of that decision.

IPSEA can advise if other parents are faced with this approach by LAs, and will be glad to do so!

1 comment:

  1. The letter clarifying the legal position of EHC pilots states "As EHC plans are currently not statutory, there is not a direct duty on local authorities to secure the special educational provision within them in the same way as for statements.However, so that parents and young people have the same assurance and certainty as with statements, we would expect pathfinder authorities to treat EHC plans as if such a duty existed and to make that clear
    to parents and young people."

    If there is no direct legal duty on LA's, whose legal duty is it?

    Answer from IPSEA: "Unless you have a statement then there is no legal duty on anyone - school or LA - to make the provision in a EHC plan currently. Only when EHC plans become law (planned for Sept 2014) will they be legally binding meaning that LAs to make the provision. At this moment in time it is not clear whether EHC plans issued as part of current Pathfinder pilots can be converted into EHC plans under any new system. In many cases the statutory assessment process proposed under the new system will not have been followed. Pathfinders have been testing different ways of carrying out statutory assessment of needs. However you cannot issue a EHC plan under the proposed law unless you follow the process laid out requiring certain professionals to have been consulted. We need to wait to see what transition arrangements will be put into place."


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