EHCP Myth Busting

Our practice team is committed to supporting our clients in getting to grips with the EHCP process when it becomes clear that they need to navigate this on behalf of their child or young person. We are here to help clarify and support you through this journey and we hope this myth busting guide will be useful for you.

Myth 1: A child must be 2 years behind their peers academically in order to qualify for an EHCP.

“A child or young person has SEN if they have a learning difficulty or disability which calls for special educational provision.2 The legislation defines this as meaning that they have a:
- - significantly greater difficulty in learning than most others of the same age; or
  - disability which prevents or hinders them from making use of facilities of a kind generally provided for others of the same age in mainstream schools or post-16 institutions.”

“Children will have diverse needs of differing levels of severity and may have more than one type of need, with needs potentially changing over time. The definition of SEN is a broad, relative concept based on an assessment.”

Myth 2: SEN and SLCN needs have increased mainly because of Covid.

Funding was an issue long before Covid happened and although it has exacerbated this, the system was not financially sustainable prior to this so it is no wonder it has not improved since then, given the increase of children with EHCPs has increased by 140% since January 2015.

According to the SEND Code of Practice:

“In March 2022, DfE and DHSC jointly published a green paper summarising its review. This identified three enduring challenges which the 2014 legislation had been intended to address: failure to deliver improved outcomes for children, despite increased funding; declining parental confidence in the system; and a system that was not financially sustainable.”

Myth 3: You need a medical diagnosis to obtain an EHCP.

According to the SEND Code of Practice:

“A child or young person has SEN if they have a learning difficulty or disability which calls for special educational provision to be made for him or her.

A child of compulsory school age or a young person has a learning difficulty or disability if he or she

has a significantly greater difficulty in learning than the majority of others of the same age, or
has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.”

This means that an individual must have a documented special educational need which can fall in any area. Assessment criteria is based on the professional assessment results indicated by the relevant professional. It is important to note that the increase in individuals with EHCPs based on SEN needs has incorporated many different areas of disability and difficulty. In each area, there is an element of SLCN making it the most widespread educational need of all.

Myth 4: An EHCP Needs Assessment must be requested by the child’s educational setting.

Relevant legislation: Section 36 of the Children and Families Act 2014 9.8, The SEND Code of Practice 2015.

“The following people have a specific right to ask a local authority to conduct an education, health and care needs assessment for a child or young person aged between 0 and 25:

the child’s parent
a young person over the age of 16 but under the age of 25, and
a person acting on behalf of a school or post-16 institution (this should ideally be with the knowledge and agreement of the parent or young person where possible).” (The SEND Code of Practice Chapter 9)

The guidelines further state, “In addition, anyone else can bring a child or young person who has (or may have) SEN to the attention of the local authority, particularly where they think an EHC needs assessment may be necessary. This could include, for example, foster carers, health and social care professionals, early years practitioners, youth offending teams or probation services, those responsible for education in custody, school or college staff or a family friend. Bringing a child or young person to the attention of the local authority will be undertaken on an individual basis where there are specific concerns. This should be done with the knowledge and, where possible, agreement of the child’s parent or the young person.” (The SEND Code of Practice Chapter 9)

Myth 5: An EHCP plan must be drafted and finalised within the legal deadline even if not all necessary assessments have taken place yet.

According to the SEND Code of Practice:

“Early years providers, schools and colleges should also take steps to ensure that young people and parents are actively supported in contributing to needs assessments, developing and reviewing Education, Health and Care (EHC) plans. Specifically, local authorities must

ensure the child’s parents or the young person are fully included in the EHC needs assessment process from the start, are fully aware of their opportunities to offer views and information, and are consulted about the content of the plan.”

Chapter 9 of the SEND Code of Practice outlines the EHCP assessment and application process in detail and all organisations involved in the process are required to adhere to the guidelines set out in this document. It includes the following guidance on adhering to timescales:

“Local authorities should ensure that they have planned sufficient time for each step of the process, so that wherever possible, any issues or disagreements can be resolved within the statutory timescales. Where the child’s parent or the young person agrees, it may be possible to carry out steps much more quickly and flexibly. For example, a child’s parent or the young person might be happy to agree changes to an EHC plan following a review while at the review meeting, where all parties are content. Under no circumstances should the child’s parent or the young person be put under pressure to agree things more quickly than they feel comfortable with, and where there is any doubt or the child’s parent or the young person requests more time, local authorities must follow the steps and timescales set out in this guidance.”

Local authorities must endeavour to comply with the time limits and although there are exemptions to this, waiting for assessment reports from contributing professionals is not included in this and therefore these agencies e.g. NHS Trusts commissioned by the Local Authority should be held to account for not adhering to the timeline. However, this does not mean that the Local Authority has the right to push a finalised EHCP through without this vital information as this is in breach of guidelines to include all relevant information as part of the assessment of needs process.

Myth 6: Personal Budgets are not a real thing.

It is in fact unlawful for parents and schools not to be provided with information regarding how the entire EHCP process works including specifically information on personal budgets.

“Local authorities must provide all parents, children and young people with impartial information, advice and support in relation to SEN to enable them to take part effectively in the assessment and planning process. This will include the EHC needs assessment process, EHC plans and Personal Budgets (including the take-up and ongoing management of direct payments). This should include information on key working and independent supporters as appropriate.” (The SEND Code of Practice Chapter 2)

References

National Audit Office Report: Support for children and young people with special educational needs Report – Value for money Date: 24 Oct 2024

https://www.nao.org.uk/wp-content/uploads/2024/10/support-for-children-and-young-people-with-special-educational-needs.pdf (ISBN: 978-1-78604-582-9)

Further information and downloads can be found here: https://www.nao.org.uk/reports/support-for-children-and-young-people-with-special-educational-needs/

Special educational needs and disability code of practice: 0 to 25 years Statutory guidance for organisations which work with and support children and young people who have special educational needs or disabilities January 2015.

Special educational needs and disability code of practice: 0 to 25 years Statutory guidance for organisations which work with and support children and young people who have special educational needs or disabilities January 2015.

https://assets.publishing.service.gov.uk/media/5a7dcb85ed915d2ac884d995/SEND_Code_of_Practice_January_2015.pdf

Structure of the EHCP

As a statutory minimum, EHC plans must include the following sections, which must be separately labelled from each other using the letters below. The sections do not have to be in the order below and local authorities may use an action plan in tabular format to include different sections and demonstrate how provision will be integrated, as long as the sections are separately labelled.

Section A: The views, interests and aspirations of the child and his or her parents or the young person.
Section B: The child or young person’s special educational needs.
Section C: The child or young person’s health needs which are related to their SEN.
Section D: The child or young person’s social care needs which are related to their SEN or to a disability.
Section E: The outcomes sought for the child or the young person. This should include outcomes for adult life. The EHC plan should also identify the arrangements for the setting of shorter term targets by the early years provider, school, college or other education or training provider.
Section F: The special educational provision required by the child or the young person.
Section G: Any health provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN. Where an Individual Health Care Plan is made for them, that plan should be included.
Section H1: Any social care provision which must be made for a child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.
Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN. This will include any adult social care provision being provided to meet a young person’s eligible needs (through a statutory care and support plan) under the Care Act 2014.
Section I: The name and type of the school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person and the type of that institution (or, where the name of a school or other institution is not specified in the EHC plan, the type of school or other institution to be attended by the child or young person).
Section J: Where there is a Personal Budget, the details of how the Personal Budget will support particular outcomes, the provision it will be used for including any flexibility in its usage and the arrangements for any direct payments for education, health and social care. The special educational needs and outcomes that are to be met by any direct payment must be specified.
Section K: The advice and information gathered during the EHC needs assessment must be attached (in appendices). There should be a list of this advice and information.

Speech and Language Therapists and Occupational Therapists provide information based on their expertise which should be included in all cases within Sections E, F, G and sometimes J. This means that speech and language or occupational therapy assessment findings should feed into outcomes, provision which is delivered within school and/or by school as well as provision delivered by health professionals only which spans across both sections F and G.

EHCP Crisis

According to the National Audit Office Report 2024,

“Between 2015 and 2024, demand for EHC plans increased by 140% and SEN support within schools 14%. There are various possible reasons, including needs being better identified or changing over time, but the balance of factors is difficult to quantify. This creates a risk that DfE’s response, including increased funding, is neither targeted most effectively, nor addressing the underlying social, educational or medical causes which may extend beyond the education system. For example, DfE and stakeholders see it as critically important to identify and support needs earlier, but DfE does not have a process or funding to facilitate this.

As set out in legislation, schools, local health service commissioners and providers, and local authorities have responsibilities across the SEN system. Although there are some cross-government arrangements, the system design creates challenges. For example, local authorities are held to account for provision but have limited levers to encourage changes within schools and health services. Health organisations undertake assessments to identify needs and provide healthcare support. Each NHS integrated care board must have a SEN executive lead, but two of 32 competing priorities relate to SEN. Schools can be incentivised to seek EHC plans to access additional high-needs funding, or exclude pupils with SEN, which conflicts with local authorities’ duties to find children school places and ensure value for money.”

One of the recommendations was to, “build a more integrated system by, for example, developing a shared understanding of how identifying and supporting SEN should be prioritised, including within the health system; ensure those with accountability can act, including local authorities requiring providers to accept pupils; and consider where multi-disciplinary teams can make jointly-owned support decisions.” This is what we have been calling for, for years, as health professionals who work within and across education.

The Department of Education is proposing a plan of action including increasing funding targeting many areas of support including the workforce, educational needs funding for individuals and for inclusion as a holistic initiative within mainstream school. In addition, this plan includes the proposed creation of additional special educational settings to provide school placement to the thousands of children who are currently unable to attend a specialist provision due to lack of capacity. However, based on the National Audit Report, not even the proposed funding changes are anticipated to resolve the EHCP crisis and the wider impact on SEN provision nationally. In the meantime, health and educational organisations have a duty of care to continue to highlight needs which means pushing up to demand improved funding.