URGENT: confused about statement system/ EHCP

[tickletime]

My son is in Year Two at a mainstream primary school in Islington. He was diagnosed with ASD in 2011 and has had full time one-to-one support since starting school in 2012 (Band 6 on the old statementing system). We're currently transitioning to the new ECHP system, and I've noticed that the form no longer states the number of hours' provision to which he's entitled.

I've questioned the local authority rep, who has confirmed that council now doesn't include the number of hours' support on the Plans, as the majority of the SEN budget has now been devolved to schools. In other words, the schools themselves decide how many hours should be provided based on the child’s need.

It's unclear to me (and to our SENCo) how the school secures the amount of funding necessary for each child. My concern is that our legal rights are being removed and, if the LA were to suddenly impose cuts, we'd have no legal leg to stand on.

I'd be grateful to hear from anyone else who has similar concerns, or anyone who has information about the new system.

Many thanks in advance

seems to be a common theme at the moment - my friend just had her draft EHCP through (a transfer from the old statement) and I noticed that her hours had been removed - her son was getting 25 hours - she has challenged our LA and they have said they don't put the hours in the draft only in the final which is not what the code states.

I would speak to ipsea about it and I would also let you LA know that the new code states that provision needs to be specified and quantified - their interpretation of the law is wrong and I would not stand for a finalised plan not having full details of support on it -it may mean if they finalised it you will have to appeal but the LA are in the wrong here and would be a relatively straight forward appeal as the LA are not following the law and hoping that parents are gullible and not picking up what they are doing

Thanks bjkmummy. That's really useful. I'm worried also for other parents in my borough who may not realise they have to request this. Any good ideas for how to challenge LA policy generally?

It could be worth writing to the Department for Education. They were very firm that the law on requiring LAs to quantify and detail provision in statements hasn't changed, and I heard that they had a team dealing with LAs which are messing up like this.

In my county the schools can apply for exceptional needs funding to pay for 1-1. It seems to differ in different areas.

I've questioned the local authority rep, who has confirmed that council now doesn't include the number of hours' support on the Plans

The law is 100% clear that the hours must be quantified. It is irrelevant to the statement or EHCP how the school and LA sort the funding between them, the responsibility for funding remains with the LA

Here is the case - court of appeal so serious stuff
R V THE SECRETARY OF STATE FOR EDUCATION AND SCIENCE, EX PARTE E [1992] 1 FLR 377 CA
E was a 13-year-old boy with literacy and numeracy problems. His statement referred to both of these as special educational needs in part 2, but specified only provision to meet the literacy problems in part 3. The local authority’s explanation was that as the numeracy difficulties were not serious enough for them to have to make any provision (i.e. they could be met from the school’s own resources)
“the statement must specify in part 2 the authority’s assessment of the special educational needs of the child ... and in part 3 the special educational provision to be made for the purpose of meeting those needs ...
The local education authority is obliged to determine the special educational provision that should be made for the child in respect of each and every educational need identified in the statement ...
... the duty of the authority is then to arrange that the special educational provision specified in the statement is made for the child.... where the authority take the view that the school is able to provide some part of the special educational provision which the child requires, then they will fulfil their duty by arranging that the school do so provide that part of the special educational provision.”

The case for requiring hours to be specified is L v Clarke and Somerset and is summed up in the new code of practice at Paragraph 9.69

“Provision must be detailed and specific, and should normally be quantified, for example, in the terms of the type, hours and frequency of support and level of expertise..."

Quote that and demand your hours back.

Good luck OP, and thank you senvet that is extremely helpful as I feel a similar conversation coming on.

Silly question - does the case law apply just as much to the new EHC plans as they did for the statement?

The Clarke and Somerset case is definitely carried over because it is in the new code of practice.

I think that the other case is also covered by the code, but I'll check. It stems from a bit of the old act that said it was the LA's responsibility to arrange the needs, and as long as there is a similar provision in the Children and Families Act and/or the new code then the old case will carry over. It isn't that there is something official that says it does, it is just practice in Tribunal.

Hold on and I'll try and find some corresponding bits of law just to be watertight on this.

OK
The LA's duties are at section 19 of the CFA
"Local authority functions: supporting and involving children and young people....
(d)the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes."

Also section 24
(1)A local authority in England is responsible for a child or young person if he or she is in the authority’s area and has been—
(a)identified by the authority as someone who has or may have special educational needs, or
(b)brought to the authority’s attention by any person as someone who has or may have special educational needs.

So as these are essentially the same duties as the LAs had to meet under the old law, the older cases should still apply

Hope that helps

Thanks so much for this senvet. At my second EHCP meeting the LEA special needs officer told me hours would not be put into the support plan so I will now have something very specific to go back with!

Thanks for all your responses. Somebody's suggested I should contact the IPSEA, which I'll do tomorrow. I'll keep you all updated.

They are talking absolute rubbish. Refer them to page 166 of the Code of Practice - the bit that sets out what should be in section F of an EHCP, especially this bit:

• Provision must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise, including where this support is secured through a Personal Budget

• Provision must be specified for each and every need specified in section B. It should be clear how the provision will support achievement of the outcomes.

The whole point of the assessment process is to decide what support the child needs. It shouldn't be left up to the school, they're not the experts. The LA needs to go to the experts and require them to say exactly what support your child needs so that it can go into the ECHP.