Question: I have a daughter whose statement is out of date and I would like it updated as her needs have changed.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!
