EHCP

[Nell6623]

My son has an EHCP, written when he was 13. He was at his lowest ebb at this point, overwhelmed with anxiety. He was avoiding classes, walking around the school and being non-compliant. He is now almost 18 and trying to start again at FE College. The description of his behaviours is extreme and off putting.

He did start college last year but it didn’t work out. My feeling is that his EHCP did him no favours. He is applying again and is adamant he does not want to disclose his EHCP. It has not been updated for years & does not reflect the enormous progress he has made. He also says, quite rightly, that he received no extra support at all at college. So, my question is this - are we obliged to say he has an EHCP, particularly as we will not be asking for any additional support?

Have you not had annual reviews? Following these the EHCP can be amended. If the LA refuse to amend or don’t amend as necessary you can appeal.

So you are aware for the future, if DS did not receive the provision detailed, specified and quantified in F it could have been enforced.

You won’t be able to conceal the EHCP. When DC have an EHCP admissions aren’t via the normal admissions process. The EHCP will need to be amended to include the placement.

Hi, thanks for responding. The LA tried to work with the college last year, but they simply wouldn’t engage. It turns out several students with EHCP’s were unable to continue at the college. The LA have agreed the EHCP is unhelpful and we are working with a third agency to review. It’s all a bit up in the air. The EHCP was reviewed but twice impacted by COvId so a bit sketchy.

It sounds like the LA are trying to blame the college, and whilst there may have been failures on their part, ultimately the responsibility for ensuring the provision is provided lies with the LA, not the college.

The relaxation of the rules due to Covid finished in September 2020. Reviews since should have happened normally.

If you haven’t already you should formally request a review (annual review if there hasn’t been one in the last year or early if there has). Following the review within 4 weeks the LA must inform you whether they are going to amend or not. If they are they must send the draft at the same time and finalise within a further 8 weeks. You can then appeal if the amendments are made.

Is there another college offering the course DS wants?

Yes, we are applying for a different college this year. My worry is that the EHCP is not really usable at the moment. The third agency is very good and will work with the LA to review. It’s a question of when it’ll be reviewed. Im really struggling with what to do. DS is adamant that It’s stigmatised him so far, rather than helped. Complicated!

I know what you mean about covid but it seems to me the focus is on getting new applications through (which I understand).

If you haven’t had a review within the last year email the Director of Children’s reminding them of their duty to hold a review at least every 12 months. If that doesn’t work email again threatening judicial review unless they hold a review ASAP. Then, contact SOSSEN for help with a pre-action letter if that fails.

If the LA doesn’t stick to the statutory timescales you can enforce them, via JR if necessary.

If the third agency is SENDIASS be careful. Some are good but too many repeat the LA’s unlawful policies.

Thanks, that’s all really helpful.

If you think the LA should do more then they are I recommend putting in a corporate complaint they then have 12 weeks to resolve your complaint and if you're not content after that you can go to the Local Government Ombudsman who have the power to order LAs to pay to compensate for what they term as any injustices

I would do that first before judicial review or other legal means because it's the one that costs the least as you don't need legal representation.

If you just go to the director, it'll only end up as a corporate complaint anyway if you want to escalate further might be best contacting your MP or the councillor on your local council who attends their cabinet meetings for children's services as they will have contacts in the local authority

Often the threat of judicial review works. If it doesn’t SOSSEN are reasonably priced for pre-action letter. Going down the formal complaints process isn’t a realistic remedy in this situation, it will take too long.

But any kind of legal process is not going to be quick either, you're going to spend a lot of money and it's not going to make a local authority jump into action. Firstly they will say they were not given a chance to resolve the issue at a local level and secondly they have their own in house solicitors for these matters so cost isn't going to stop them. The reason most of the EHCP issues exist is lack of resources in councils it won't just change that with a threat because most people won't carry out that threat and the OP certainly won't be the only parent thinking they'll give that a go. Far better to start the ball rolling with a corporate complaint but hold them to the 12 weeks deadline which they may or may not meet (and the LGSCO may look more favourably if they don't meet it) and ensure resources are reserved as depending on whether the EHCP is extended until the OP's son is 25 there could be more battles to come

As I posted, often the threat of JR is enough, which is far quicker than exhausting the complaints process and then complaining to the LGO. If the threat isn’t enough a pre-action letter usually is, which again is far quicker than exhausting the complaints process and going to the LGO. Very few get to a hearing itself. You can also ask for an interim relief order to be issued.

You do not have to spend a lot of money. Threatening JR is free. A pre-action letter, if not entitled to legal aid, can be relatively cheap via SOSSEN. And, JR proceedings themselves would be in DS’s name and he can be entitled to legal aid in his own right.

Firstly they will say they were not given a chance to resolve the issue at a local level

Which is exactly why you don’t jump straight to a pre-action letter. OP has tried to resolve this with the LA and by emailing the Director of Children’s Services she gives them another opportunity to remedy the situation. Then another one when she threatens JR.

I really don't think threatening legal action is the way to go, it presupposes that LAs will jump into action on receipt that they just needed a nudge, unless the threat is carried out and there is a finding against them, the OP would just be one of many it's literally in the news the amount of unhappy parents. If the OP hasn't even submitted a complaint of course it's premature. Might as well put it in as a complaint properly (but maybe get support from councillors snd MPs potentially) and it'll get to the right people more quickly.

We will have to agree to disagree. The complaints process isn’t a realistic remedy in this situation as it is too slow. OP’s DS is not receiving any education or SEP, his needs are not being met and have not been for some time.

OP, if you want more information on JR, including information on the complaints process not being a realistic alternative remedy in situations where it would be too slow, it getting no further than the pre-action letter the majority of the time, and FAQ such as “isn’t JR really slow”, here is SOSSEN’s page.