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Does my child or young person need an Education Health and Care Plan?

If you have been lucky enough to obtain an Education Health and Care Assessment (“EHC Assessment”) for your child but the Local Authority has come to the conclusion that your child’s needs do not require the support of an Education Health and Care Plan (“EHCP”) this isn’t the end of the road for you as a parent. You can appeal their decision through the Special Educational Needs and Disability Tribunal (SENDIST).

When the LA refuses to make an EHCP they must write to you setting out the reasons why they have refused the plan under s36 Part 3 Children and Families Act 2014. They should also make available any assessment reports on which they based their decision. This should normally include an Educational Psychology report at the very least but can also include therapy reports from different experts that have worked with your child. It can contain your own independent expert reports as well if these have been provided to the LA. The LA has a duty to take into account all the evidence provided to it when making its decision whether or not to make an EHCP for a child.

The LA should inform you of their decision whether to make an EHCP in a dated letter that gives you your right of appeal against this decision. You have 2 months from the date of this letter to make you appeal, or 30 days from the mediation certificate, whichever is later.

As the law currently stands you have no requirement to attend mediation with your LA unless you wish to, you merely need to ring your mediation service. Your mediation service should be listed in the LA’s letter to you. When you ring the mediation service, you will be required to give them your details and those of your child, the type of appeal you wish to bring (in this case “I wish to bring an appeal against a refusal to make an EHCP”) and explain you would prefer not to go to mediation. You will then be issued with a Mediation Certificate. 

When you are issued with a letter refusing your EHCP you should read any reports provided to you carefully and balance your decision on whether to appeal based on your knowledge of your child’s needs.

It is worth speaking to your child’s school and asking them if they think the reports accurately reflect your child’s needs. If you believe that your child’s needs are not accurately set out in the assessment reports that the LA have undertaken, or your child has not been provided with enough help to make the progress they are required to make, you can seek your own independent reports if you have not already done so and seek further advice.

If your child does not receive an EHCP, your child’s school will not have received any additional funds from the LA over the usual funding available from a schools budget. They will have received the funding from the LA of £4,000 (per pupil funding) and will be expected to find a further £6,000 out of their SEN delegated budget. This is retrospective funding, not additional funds. These figures are based on the current funding formula. Although this funding formula is not part of the primary legal criteria cost of help for your child will likely be weighed as part of the decision whether to make an EHCP for your child or not. If provision costs more than this amount (£6,000) usually top up funding is required by a school from a Local Authority.

It is worth noting however that case law has also set precedent for EHCP funding to be made even if it were possible for the child’s outcomes to be financially achievable without a Plan. If in reality, a child is not being provided with what they need for some reason; for example they were not taking advantage of the facilities and activities that were offer; then a plan should be made. The precedent case I refer to concerned a Care Home and care provision. However, could equally be applied to a school setting.

If your child has not been granted an EHCP and you feel they will not make the progress they should without a plan it is likely that your Local Authority’s decision is unjust, and they should reconsider their decision. This could be the case for instance, if your child needs one to one help, or a special school placement, as this provision cannot be properly funded without the implementation of EHCP funding from an LA.


If you would like further advice, on whether you should appeal a decision to make an EHCP for your child I can help, so please ring me and book a free consultation.