Hi, my name is Jordan. I am a special education
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4 to 11. Each week I am joined by experts in
the field answering your questions and sharing
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today. Now to the episode. Hello everybody, my
name is Jordan and welcome back to the Sensory
Classroom podcast. Today I am joined by Samantha
who is an education lawyer. She specialises in
supporting children and families with special
educational needs, particularly around securing
the right support for neurodivergent children
within the education system. Her expertise includes
handling complex EHCP issues. resolving school
placement disputes and appealing to the SEND
Tribunal. So useful for us lot, I'm so pleased
she's here. Hi Sam, welcome. Hi Jordan, thank
you for having me. You are so welcome. So today
we're going to be mainly focusing on understanding
EHCPs. So demystifying the process and common
pitfalls for parents seeking support and it is
so needed because they so don't have access to
education lawyers like yourself. Do you mind
explaining a little bit about what you do and
your why I suppose behind doing what you do?
Yeah so I suppose... In terms of the why, from
our perspective, we want to help educate parents
and families so that they know their legal rights,
so that they're able to pursue any sort of challenges
themselves. We tend to find that a lot of people
that come to us have been fighting this for years,
sometimes even a couple of years just to get
an EHCP issued. And when they finally get that
EHCP, it's like building a ticket out of Charlie
and the Chocolate Factory. They think it's brilliant,
everything's perfect, everything's going to be
okay. But that unfortunately isn't the case for
a lot of families. Quite often families don't
realise how poorly local authorities draft these
and the impact it has. And we sometimes see cases
where families aren't realising how bad things
are until they're at a point of thinking that
something isn't being provided that should be.
But when you look at the EHCP, unfortunately,
it's not worded as they thought it was or it's
been worded really woolly. So the local authority
able to get out of their legal duty and what
makes it. difficult at that point is to challenge
it so one of the things that we want to do is
we want to help educate families so that they
are hopefully able to spot these things early
on the process so that if they're in that scenario
and they need to challenge it then legally they
can and that's what we can support them with
and obviously we support families throughout
the whole of the EHCP process anything linked
to EHCPs and actually anything linked to education
you know admissions, exclusions, school transport
we do a lot. I was just thinking that, is there
any way of supporting them before it goes wrong,
supporting them through making sure that it is
right before it's actually finalised? Yeah, from
our perspective, what we can do is we can help
parents go through the draft EHCP, either the
first one or if they've got one following an
annual review, and we can help them look at it
and kind of say, OK, well, this isn't good because
of that. what you need to do is get the local
authority to try and put more information in
and so at that stage where the parents are able
to give parental comments within the 15 days
of the draft and we can help them prepare that
but what we sometimes find is that we can point
all these things out to local authorities and
they just ignore it even if the parents got evidence
to say all these things need to be added to the
plan if a local authority doesn't want to include
it they're not going to include it So sometimes
then parents find that they have to appeal to
get those amendments to the EHCPs. And again,
we can help them through the appeals process.
Essentially we can help parents as much or as
little as they want. The tribunal process is
meant to be parent friendly. But one of the things
that I've noticed over the years I've been doing
this is that local authorities are becoming more
litigious. They're arguing these kind of closer
to hearings than they used to. They're instructing
barristers more often. So I can appreciate for
families, the idea of going to a tribunal anyway
is going to be really daunting. But when you're
up against an aggressive local authority lawyer
or a barrister, it's going to feel even more
daunting at that point. Yeah, especially if you
haven't got the funds to fund that yourself.
I mean, how would you do that? And you're already,
you know, you're a carer, you're managing for
a child with an AHCP or a young person with an
AHCP. So it's not as easy as, oh, yeah, I can
just, you know, combat that too. Yeah, and time
is, that's a really good point. Actually, a lot
of parents don't have the time to be doing this
on top of all your other parental things that
you are doing. The idea of having to fight the
local authority to get what your child is legally
entitled for is just awful. Yeah, yeah, exactly.
I suppose for those that are listening that are
new parents or mainstream teachers, maybe you
may not really understand what we're talking
about here. And EHCP is, in the UK, stands for
Educational Healthcare Plan. And it came in,
was it about 10 years ago, it changed from statement
to EHCP? 2014. 2014 oh that was a good guess
10 years ago uh and so it was called statement
it's now called AHCP and it's supposed to be
well you could probably explain better actually
but in my understanding it is a it's a legally
binding contract if you will on what the local
authority will either provide or fund or what
the child needs in order to access education
health and care up until 25 would you like to
explain a little bit better that yeah and and
and that I tend to when I'm talking to clients
actually refer to it as being like a contract
and to kind of think about it like if you were
in a work situation you would have a contract
with your employer that would set out all the
specifics that you would know that were your
rights what you're able to do and that's almost
what an EHCP does but only certain sections of
it have that contractual element okay and that's
why it's really important to make sure that when
you've got an EHCP you're going through because
one of the other sneaky things that local authorities
sometimes do is they might put in what you want
but they might put it in a section that means
that actually it's not legally enforceable or
that it's harder to enforce it legally and so
that's the other thing when you are looking at
any HCP is questioning should this information
be in this section and so one of the things that
i would like to sort of do with you today is
to go through and say you know these the different
sections what should be in them what are the
common things to look out for that local authorities
like to do um so that you can try and avoid being
in that situation where you maybe have something
good but it's in the wrong place Amazing. And
maybe like me, you know, the SENCO and the teacher
is trying their hardest in the review to get
everything on there. But maybe they're putting
it in the wrong section, you know, not even knowingly.
And then county are maybe thinking, oh, brilliant,
you know, I don't have to pay for that. And that's
ultimately why a county council would make it
difficult or put things in different places,
because ultimately they need to fund this, don't
they? And their budgets are very tight and they
might not think the child is necessarily... high
needs enough for that resource or the resource
might not actually be accessible in the county.
I mean, I'm in Cornwall and trying to get an
occupational therapist is just like trying to
find a pot of gold at the end of a rainbow. So
we cannot put that it's legally binding in the
contract because they don't exist in this county
for under local authority. They are private.
So it's really difficult to... to navigate those
things but i'd love to talk about yeah let's
go through section by section let's talk about
the rights and how we navigate getting access
to this stuff that the children absolutely need
and not need to we're not talking about needs
as in wants we are talking about needs you know
like as as important as food and water and air
these children are needing this stuff that's
why these contracts are so important aren't they
they really are and I think actually one of the
points you just made also helps summarize the
situation in the sense that very easy to assume
that these things are done deliberately by local
authorities but actually some of it could be
a lack of education and the lack of understanding
of the system local authorities have huge workloads
in terms of their case officers and i'm you know
there are some send case officers who are you
know more difficult than others and i think don't
help things but as much as i am critical of a
local authority i do also have some understanding
that this isn't always deliberate and this sometimes
is just a lack of resource or lack of education
on their part Yeah, on that note, we've got,
I think we've got 13, in the county, we've got
13 SEND officers. And I think we've got something
like 32 ,000 children with EHCPs in the county.
So that explains the huge workload. I mean, you
can't get to meet these children personally.
You can't know their accounts and their needs
personally. You have to just go on what's on
paper and what SEND codes are providing, what
teachers are providing, what evidence is there
in front of them, and they can make a decision.
ultimately they can't it's not like oh i don't
like you you know it's not personal it is just
we've got this budget have they given enough
evidence For it to be, for them to be eligible,
yes, no. It almost has to be as simple as that
for them, doesn't it? So yeah, let's take the
heat off of them for a second. It is an incredibly,
incredibly hard job. So let's go section by section
because if parents and teachers are listening,
you know, I do annual reviews to my HTPs. I'd
love to know more about, you know, am I doing
the right thing and am I putting the things in
the right places? I'm sure Senko is listening
and teachers listening would love to know that.
But then also there's parents out there that...
are part of those reviews and they need to know
what to look for and how to spot things that
aren't in the right places or that need to be
added. And there are also parents that are yet
to start this process yet that have a toddler
or two -year -old, three, four -year -old, you
know, ready to start school and they're just
kind of starting this, oh God, the children,
you know, the setting isn't meeting their needs
or they're needing some extra support and they're
starting. It'll be really great for them to know
right from the off. what to look for. Okay so
section A is obviously the first bit on an EHCP
and the idea behind section A is that it's to
set up the child's views where they're able to
give them or sort of a parent or carer giving
them on their behalf and it's also where the
parents views would go. You would think this
is fairly straightforward section but quite often
what local authorities would do is they'll put
information in Section A that they don't want
to put elsewhere in the plan and they'll say
to the parent look it's in the plan we'll pop
it in Section A so it's there is that okay and
the parent thinks well yeah sure it's in the
plan so that that's that's what that matters
it's in the plan but as we go through the rest
of the sections we'll go through why actually
that makes a big difference and essentially what
I would be saying is that Section A shouldn't
be having any information that's detailed about
the provision or about the child's special educational
needs. Sometimes they refer to expert reports
so sometimes parents might have gone and got
independent expert reports and local authority
may not want to include stuff from the independent
report in the sort of the rest of the EHCP so
sometimes they'll say we'll just pop it in A
because it's in there but that is the local authority
essentially saying we don't agree. with what
you're asking us to put in and we're just putting
it in section a so that you're happy section
a has no legal enforceability to it you can't
appeal to the tribunal against section a so section
a whilst it's really important because it has
the child and young person's views and the parents
views that's all it should have it shouldn't
have anything else in there okay that's really
interesting because often if a child if a parent
wants to appeal something that is often where
it goes is in that section so that's really interesting
that's really useful to know. And there's nothing
to say that you know you can't ask for amendments
in section A when you're appealing because when
you do an appeal and you're appealing against
the contents of the plan you do submit called
a working document which is a word version of
the EHCP you go in and you make changes to it
and say look this is what we want it to look
like and there's nothing to stop you saying to
the local authority look we want these changes
in section A at the same time. but if you don't
get those changes agreed the tribunal won't look
at them so it's really important to know that
actually any chance for any changes you've got
are basically through the goodwill of the local
authority because you're not going to get tribunal
just look at that okay interesting okay that's
really really useful to know for section a because
often that's the bit that um regularly gets up
you know a full update every year so that's interesting
yeah and we see some that are sort of up to 15
pages long because you know special families
have got these really good independent reports
and they're wanting huge chunks of the information
included it's like local authorities just do
that to try and appease them but as i said parents
don't necessarily realize that that means that
they're essentially saying we don't agree with
this yeah section that has no bite to it so yeah
how would they know it's Yeah, it's so important,
isn't it? Okay, so that's section A. That's important.
That's good to know. I suppose equally as important,
even though it's not legally binding, it's really
crucial that parents do give their correspondence.
I've had a few meetings. where parents have been
a bit hesitant to or it's been a bit lacking
in what's really going on it's been quite thin
and actually yes okay it may not be legally binding
but it's still really important for things like
transitions from class to class or school to
school it gives so much information there about
the child and family's journey through the years
and you can see the previous correspondence all
throughout the years as part of the document
so it's it's really useful as a new teacher or
a new SENCO that's taking on that child. to have
that information so even though it's not legally
binding it's really it really tells a really
good picture of the story and the child i would
say is really it's a really important section
because of those views and there are times where
sometimes we'll say look the local authority
will only put it in a technically it should be
saying b but sometimes you will just agree to
the odd thing going in a as a concession because
it you're right it's better than not having it
anything because people are going to be seeing
it as the first thing they read in the EHCP and
so sometimes you'll say it's not great but we'll
agree to it. I think my concern comes when local
authorities are doing it on vast amounts of information
in the hope of just appeasing parents out of
appealing about trying to make the EHCP tighter
which is one of those things that section 8 is
always worthwhile checking to see actually if
all of that stuff should be in there. Great okay
fantastic. Okay, so section B is the educational
needs of the child. So any special educational
needs should be described in section B. They
need to be detailed so that it's clear to anybody
reading what that child's needs are. There is
no set way in how any of these sections should
be set out. Currently, there is discussion about
that potentially changing as part of sort of
wider changes that have been discussed, but as
it stands. apart from the specific sections which
we're going through there isn't any template
on how they are meant to draft that so local
authorities do vary in how they set out section
b and kind of the subheadings that they use within
that one thing to look out for with section b
is the word parent report Local authorities quite
often use that as a way of saying we don't agree
that there's this need, it hasn't been seen in
school, there's no evidence but we're putting
it in to basically keep parents happy. So parents
report, ideally you don't want that wording in
section B if you can help it. Section B should
be relatively straightforward. Some of the stuff
that is in section A may need to move into section
B depending on how much local authorities put
in. It is a section that can be appealed to the
tribunal. It's not legally enforceable because
it's only describing the child's needs, but it's
the kind of building blocks or the foundation
for what will become the legally enforceable
bit in Section F, which we'll come to in a bit.
And it's also then when a local authority is
naming a placement in Section I, they're meant
to name a placement based on what can meet the
needs described in Section B, provide the provision
in Section F. So it's a really important sort
of foundation to the EHCP to make sure that all
the needs are described in Section B. Okay. And
sometimes they're a bit sneaky and they put some
in health and social care, which we'll go over
in a moment. But it's just a case of making sure
there's lots of detail in there, those needs
are described. I know lots of children have ended
up with EHCPs before they are actually officially
diagnosed with. anything because it doesn't you
don't need a diagnosis for an EHCP and just because
of the long pathway for that as well it just
it seems to be that children are on the pathway
for I don't know an autism diagnosis for example
or genetic diagnosis and they've gone through
tests and they don't actually know you know what
genetic disorder it is but it is something something
like that they can still have an EHCP if they
need that extra funding and extra support so
in that case what would you put on section B
if it's just thoughts and almost a it's not been
proven almost would you just put the things that
they're then struggling with or what you've noticed
or do you put pathway to autism you know what
what would you put there um you could put the
pathway to autism in there what i would tend
to find is it's actually the same information
that would be going in um as you know compared
to somebody with a diagnosis or without a diagnosis
because just because somebody's got a diagnosis
doesn't mean that they've got specific needs
that display in a certain way every child is
different their needs present differently even
children with the same diagnosis so you are always
going to see that actually yes sometimes they
refer to the diagnosis but that isn't telling
you what their needs are so you're always going
to get that description and that's always going
to be based on what evidence there is what evidence
has been gathered as part of that EHC needs assessment
now when you've got younger children and perhaps
children who are still going through that diagnosis
process then there may be less information and
in that if that's the scenario then you're probably
going to be relying more on things like school
observations what school are saying um any experts
if we've got an educational psychology assessment
which really should be done as part of an EHC
needs assessment so there should be things that
they should be gathering in terms of evidence
that can help detail that so from my point of
view whilst the diagnosis is good to have it
actually makes no difference to the the kind
of the level of information that we're going
to section b yeah it makes sense to me because
just because somebody has autism it really doesn't
mean much at all you know i've had children with
autism that have taken their gcses and i've got
children with autism that are learning to count
to three you know like as far as and or a safe
on the road or is quite independent or a verbal
non -speaking you know it doesn't really mean
anything about what funding and support they
need and ultimately that's what the hdp is isn't
it Is it also important in Section B to put all
the things they can't do, all the things they
can do, or a bit of both? That's a really important
question, actually. Actually, this is reminding
me that I should have distinguished something
at the start. Section B is split into the needs
and the strengths. And actually, when I said
Section B is appealable, it's only actually the
need part of Section B that's appealable. So
the strengths part isn't appealable. It's a bit
like Section A, you can ask for changes to it
as part of the working document process and hope
that the local authority will agree to them but
strictly speaking when the tribunal looks at
it they're only going to be looking at the needs
section. Now I completely appreciate for a parent
it's a bit probably uncomfortable to be focusing
on the difficulties your child has and in particular
when parents are new to the system they want
to put a lot of focus into what the strengths
are. But if you make the strengths top heavy,
then you are going to struggle to get the provision
that is needed. So the important thing about
these EHCPs, yes, it's important to acknowledge
their strengths. And strengths can be useful
to tell us kind of they've got a strength using
this one system, for instance, or this one strategy.
And that could be really important for helping
you sort of teach. But actually what is going
to be really important is actually just focusing
on that needs section. and focusing on what they
can't do and the difficulties they have which
I completely appreciate is not a comfortable
thing to do but if you are not quite blunt about
that then you're going to struggle to get the
provision that you actually need for that trial.
And is that things they can't do in comparison
to their chronological age, like typically would
be doing? Because I suppose if you're doing it
for a two -year -old, you'd have very different
expectations with or without, you know, needs
as you would with a 13 -year -old you were doing
it to be. So would you kind of think, well, what
would a typical two -year -old be doing at that
point? what is this two -year -old not able to
do or what do they need extra support to access
is is that kind of the right way of thinking
about it some of it is that and sometimes we
see in section b about them being delayed and
hitting milestones or there being a gap between
them and their peers and perhaps that gap is
widening but actually what you also have to think
about as well is actually what is that child
or young person's potential because it may be
that they're currently at a certain level um
and that might not actually be seen to be out
of kilter with their peers it might be that they're
actually on paper doing really well but they
may have potential to do even better yes and
that's another thing that needs to be kind of
considered is you are not meeting somebody's
needs say somebody who is high functioning you're
not meeting their needs if you're not helping
them reach their potential I'm really pleased
you said that and in all areas as well yes they
could you know I can just imagine pupils at the
moment in my school actually they've read a million
words in a year and they are incredible in so
many ways you know their memory is just incredible
but they really struggle to understand when they're
hot and cold or they go to the toilet or they
are completely vulnerable to peer pressure or
strangers because they just believe everything
they're told so yes there are those strengths
but actually And they are way above their peers
academically. However, they still are eligible
for this EHCP to keep them safe and to keep them
thriving and to reach their full potential, which
is maybe far beyond what a typical eight -year
-old would be doing. So I'm really pleased you
said that. And they're still eligible for an
EHCP. Yeah, but the reality is if a child is
doing relatively well academically, it's always
going to be harder to get an EHCP because...
Quite often the schools and the local authority
will just see that that child actually academically,
they're in line with peers, they're not causing
any trouble in the classroom. So those types
of cases, so we see quite often high functioning
dyslexia cases in particular, where parents are
struggling because actually the local authority
is failing to think about all the other needs
that that child has. It's not just limited to
academic needs. um and you've quite rightly pointed
out you know there are other areas of litany
social communication physical and sensory social
and emotional and all these are areas that local
authorities should be taking into consideration
when they're deciding whether or not to do an
assessment when they're deciding whether or not
to issue a plan but also when they're drafting
that plan yeah and in that case i suppose If
the parents are concerned with what they're seeing
at home or in the local community, you know,
maybe they're not seeing at school, maybe they're
masking at school, keep that evidence, keep anything
you've got written, any assessment reports or
anything, just because when they are 12, 13,
14, they might not be coping as well at school,
quite obviously, and then you've got all that
evidence to back up when you are eligible for
that EHCP. Yeah, and also in particular if you've
got a child that's perhaps masking at school
and then almost sort of exploding when they get
home. I've heard parents describe their children
as being like a bottle of fizzy pop that's sort
of been shaking all day and just explodes open
at the end of the day when they get home. Those
children, the schools are going to say, oh actually
when they're in class they're fine, we don't
see any problems. Whereas the parents are seeing
all of these behavioural issues which is essentially
a result of not being able to manage throughout
the day. Yeah, not having their needs met. Yeah.
maskings the school haven't realized and with
those cases i quite often tell parents to start
doing a log to say okay i picked them up at this
time already by time we're in the car they were
starting to have a meltdown or they were starting
to show signs that they were um really really
stressed and dysregulated um and then to keep
a log of these things because then when you're
going through the ehcp process you've got some
evidence even if it's just a week or two to say
actually this is what i see And it gives the
school, the local authority, an insight into
what's happening when that child's not at school.
And if you've got something like a log, yes,
they may not accept it because it's evidence.
But it's hard evidence. It's written there. Rather
than just parents saying, well, you don't see
what they're like at home. If you spell it out
to them, that can sometimes help. Absolutely.
Well, it won't hurt, certainly, will it? Amazing.
It might support the HGP process. It might support
the same code put in support in place. It might
support the teacher understanding. You know,
I really hope that. When a teacher or a SENCO
is receiving evidence like that from a parent,
it's really taken seriously and it's believed
and they're putting supports in place. With or
without an EACP, you can put supports in place.
Sometimes you don't need any funding in order
to put those things in place. Amazing, that's
section B, that's really important. So it's the
needs to focus on, that's the binding bit. And
yes, it might feel really uncomfortable, but
just like your DLA forms, you know, you have
to just... swallow your heart and your you know
how emotional it is and really think about what
what you're doing for them daily and often parents
do things naturally they've they've been doing
this a long time and you forget oh yeah I don't
they don't ever ask for a drink or they yeah
I do have to remind them to go to the toilet
because you've just got into habit so sometimes
it's really important to also talk about to extended
family or friends because they might notice things
that you don't even notice that you're doing
yeah and that's a good point because actually
parents just get on with it they they do the
best they can they yeah and and you know some
of the parents that we work with are sort of
superheroes themselves like the stuff that they
just pick up they do it's like like it's just
to do yeah and they just get so into the habit
of it i don't think they even realize you know
what how much they're actually doing for their
children yeah okay that's section b amazing okay
so section c is the start of our kind of tricky
sections. And the tricky bits are basically health
and social care. So Section C is where the health
needs are meant to be recorded. And what we quite
often see is local authorities being a bit naughty
and they're putting into Section C needs relating
to sensory, gross motor, speech and language.
Now, if you think about those needs, then you
could say, well, arguably there might be a health
link to them. but they are deemed to be educational
needs we've got lots of case law that says that
these kind of things are a special educational
need so they have to go into section b and the
reason again what's really important is going
back to that point about section b being like
a building block and if those needs relate stay
in section c when we get to the provision section
then they don't normally get transferred over
to the education provision. And so what we want
to avoid doing is having those needs recorded
as health needs. And I would always fight a local
authority if I see them, anything in the slightest
about them in Section C. Sometimes we see duplications,
so they're in B and C. they don't need to be
duplicated and actually EHCPs need to try and
avoid duplication because if you think about
it some of these things could go into various
different sections and your document would be
100 pages long you know if you keep duplicating
things so you want to keep it nice and simple
so my biggest piece of advice is if you see anything
in relation to speech and language communication
interaction and gross motor skills sensory needs
should be only appeal it you can appeal to the
tribunal against section c but when the tribunal
makes their decision so be section b when they
make their decision they're making a legally
binding order to say these are the amendments
that are needed to section b when it comes to
section c they can only make recommendations
which means that the um they don't need to be
complied with on the whole we find authorities
do comply with that. So it's just being aware
that technically there's a difference in power
and what the tribunal can do with educational
needs. To be really clear about what is covered
under health, I suppose, is it all of the things
that you would see a nurse, a GP or a paediatrician
about that would go in the health section? Yeah,
so if somebody's got like a heart condition,
I'd expect that to be in there. If they've got
allergies that impact, you know, severe nut allergy
or something, if they've got asthma. And there
may be some crossover because you might have
somebody who's got diabetes, which is obviously
a medical condition, but diabetes will have an
impact on a child or young person's education.
So you would also expect to see in section B
a description of those needs arising. because
of the diet the diabetes so sometimes it's fine
to have duplication but what i would be expecting
when there is duplication is for section b to
basically have all the detail to explain these
are all the ways it impacts on their education
and then section c just to simply say what about
something like incontinence so where would that
fall i would put that in Yeah, that's a need
rather than a health need. Unless it is about
something, like an actual physical health reason,
it would go in needs. I would say, yeah. And
the difficulty is, is there is nothing saying
what all these different things need to go into.
So it is sometimes that there's a difference
of opinion and it may be that, for instance,
a tribunal judge might decide that something
needs to go somewhere that I disagree with. You
know, these things happen because there is an
A prescribed list. And when we're looking at
whether things are educational or not educational,
you are looking at the very case specific details
because every child is different. All of the
needs are different. And that's why there isn't
anything in law saying. these must go in B these
must go in C and there's no clear -cut answer
to it and from the case law we have you know
it describes there being a fine line between
this definition of what's educational and what's
not and it's a case of looking at actually what
is the reason for that incontinence how is it
impacting on their day And actually, I would
probably, in the majority of cases, say that
needs to be in section B. Yeah, and then something
a bit more like epilepsy might be duplicated
because the epilepsy would be affecting them
in their education. It would have to go and be
in needs. Obviously, if they're having vacancies
or if they are missing school even because of
their epilepsy or up at night, then that would
be an absolute educational need. But then a little
sentence about... you know they have nighttime
seizures or or they are on vacation for this
yeah yeah because because there will be a medical
element in that they will probably need medication
and they might even have a health care plan separate
to the EHCP saying that when they have a seizure
these are the steps that you need to take but
you're absolutely right the way that it impacts
on education so if they've been at seizing all
night they're likely to be tired um going to
impact on their ability to learn people have
seizures more frequently if they are stressed
or if they're tired so again those are things
to be flagging in section b so you want to have
as much of the information as possible in section
b so that's really helpful that's really helpful
and i suppose all of this is evidence in section
c with links to like the actual reports actual
or is it just you simply just write it so I would
just put in Section C, say the example of epilepsy,
I would just put epilepsy. If there's any further
information about the type of seizures they have,
then maybe put that into C. But all the bits
that impact on their education where you're saying,
well, because they have this diagnosis, these
are the difficulties they're having. All of that,
from my perspective, would go into Section B.
Great. Okay. Fantastic. Section C. Fantastic.
Section D is a bit like... see in that it's a
bit of a tricky one and you need to keep an eye
on it in particular if you've got older children
and young people because this is the section
that looks at social care needs in particular
when you've got young people and you're potentially
considering them going into some kind of residential
school you will be likely saying in section b
that they have difficulties with daily living
skills independence these are things that perhaps
a 20 year old would typically start learning
when they go to university or move out of home
and some young people have difficulty sort of
learning and they need to receive education and
training specifically to help with those areas
of need so those are those needs themselves would
be in section b but quite often local authorities
will write those in section dates so and it potentially
is because of the way this all builds and it
may be a deliberate decision to class and the
social care needs because then they can argue
that a residential school placement isn't needed
for instance but a bit like how thigh would be
saying that as much of the information about
how they have difficulties in those specific
areas they should be going in section b Sometimes
we also see the local authorities putting provision
in section D, which isn't right at all. It's
a section that can be appealed to the tribunal.
But again, like C, it's a section that the tribunal
can only make recommendations on. They can't
do a legally binding order on. But again, most
local authorities will make any amendments to
D. that come in that tribunal recommendation
usually for section d i usually put if they've
got a family worker i'll put that if they get
respite care i'll put that if they have a social
worker i'll put that or if they're adopted or
under any kind of um social care register i'll
i'll put that is there anything else i should
be aware of about when thinking about what should
go in there well some of the stuff you just mentioned
is actually provision so you think about respite
isn't a social care need necessarily it's potentially
the provision so the need will normally be for
the parents to have a break yeah or even for
the the child or young person to have some kind
of time outside the family unit um so respite's
usually your provision and that's again you need
to think about it the same way that you do with
b is you're not thinking about what is needed
at this stage you're just thinking actually what
the difficulties are so you may see things like
they are fully dependent on parents for all care
which when they're younger isn't so bad being
in section d but again when they get a bit older
practically speaking it could help a local authority
argue that they don't need a residential school
placement if it stays there okay so if you're
is it worth putting that when you're starting
an ehcp with a younger one is it worth putting
that because it's true so that it is there for
when they still have it when they're older or
is it something that will need to be added really
when it becomes well I suppose if you've got
someone who's really small then being totally
dependent on their parents may not be a social
care need it may just be because of their age
and so you need to have a think about their age
if you've got a 13 year old who's completely
dependent on their parents then you would be
saying well I should have a social care need
yeah because okay they are of an age where they
shouldn't necessarily have the independent skills
to be able to do everything themselves but they
also shouldn't be so fully dependent on their
parents and when you are looking at section d
you look at the wider family so you are able
to take into consideration sort of the if the
parents are having to look after a child 24 7
and we have some some parents that do have to
do that and in particular one of the reasons
why it's important to consider things like this
in the actual need is because when you get to
the school holiday you've got children and young
people at home 24 7 and again sections c and
d build foundations for their counterparts in
the provision sections you're going to want to
make sure in particular if you've got a child
that needs 24 7 care over the school holidays
there may be an argument they don't need any
education during the holidays but that you are
going to need some social care support because
you're going to need respite. You are going to
want them to be able to go out and to, you know,
go out into the community and do things that
perhaps children their age might do independent
of their family. And rather than thinking about
the provision at this stage, you're going to
be thinking about what needs underlie. Is that
just if the child has needs? Because sometimes
we have... layers of things in families where
actually it isn't a social care need as far as
the child's needs however the child is vulnerable
do like within the social care realm because
of maybe a parent's mental health or a parent's
physical health or a lack of support network
i suppose but that's not the child's i suppose
it's impacting the child but it's not the child's
stuff could that still go in there or does that
go somewhere else so it could in theory go that
but A parent might not be comfortable with that.
I've seen an EHCP recently that referred to some
private things about the parents and there was
no need to make that reference to it. It didn't
add anything to section D. So we actually said
you should be removing that because that's not
relevant to the child's needs. It doesn't impact
on the child in any way. I don't really know
why it was in there. So it's again, it's one
of those sections where. or actually the whole
of EHCPs, you have to consider the individual
circumstances. There's no blanket policy on what
should and shouldn't be in there and how much
of a parent sort of need should impact on that.
But arguably, if a child is, say, fully dependent
on the parent, but the parent... has their own
difficulties then that's the kind of thing that
you maybe see worked into section d but again
just describing it more on the focus of the child's
needs yes then just an outright because parents
will be entitled to their own social care assessments
um both as a service user and also as a parent
carer so it's thinking about what's appropriate
and the child that the report is actually linked
to i suppose that's a similar if it was siblings
i suppose if there was if there was lots of needs
amongst the siblings it's how it impacts the
child that the report is about and not about
them and their needs because and if you think
about it if you went to tribunal and you were
to say to the tribunal were their siblings and
they've got these needs and that's not included
in section d tribunal judge is going to say well
i can't make a decision about their siblings
because the appeal isn't about them i don't have
any information about them this appeal is focused
on this this child so it's getting a balance
and again sometimes you may put things or local
authority may put things in section d that you
may think you know what it technically shouldn't
be there but it's helpful information so i'm
happy for it to be there what we're talking about
today is the technicalities of what absolutely
should and shouldn't be in there but there is
always that ability to try and agree different
with the local authority if you want to okay
amazing that's really helpful thank you okay
so section e is the outcome they should be smart
they should be measurable they are something
that technically cannot be appealed but there
is case law that says that if consequential amendments
are needed to it essentially because the needs
that are in b have changed then in theory a tribunal
can consider making changes to section e to be
honest we don't tend to see many problems with
section a um the outcomes are usually fine you
know it may be that we think that they're not
quite accurate or there may be some additional
ones that need to be included more often than
anything it will be that because they haven't
described all the needs in section b perhaps
they haven't got all the outcomes that are needed
so we might be asking to make change to changes
to section e because we've asked for more needs
to be included the the biggest thing is just
to be aware that technically the tribunal can't
deal with section a okay great okay um section
f section f should include all of the special
educational provision um i'm actually gonna bring
g and h into this at the same time because it's
easier to talk about the three of them as a whole
so section f is the educational provision section
g is your health provision and section is your
social care provision now the reason why it's
really a lot easier to talk about these in one
go is because there is within the legislation
um a bit of it that says that if provision educate
or trained regardless of whether or not it comes
into health or social care if it educates or
trains and it's to be deemed to be special educational
provision which means it goes into section f
now the reason that this is really important
is because when we were talking at the start
about that contract the legally enforceable bit
section f is your legally enforceable bit So
it's the bit where you want all the provision
to be included, you want it to be worded nice
and clear. Things like speech and language therapy
and occupational therapy, local authorities will
quite often try and put them in Section G. Long
-standing, there's been very old case law on
this, they are special educational provision,
they go into Section F. And a lot of local authorities,
to be fair, are really good at not putting them
in Section G. We still see it on rural cases
and we should. But things like after -school
care or like holiday clubs, could they be classed
as education? It depends because if it is an
after -school club because parents are working
and the parents can't pick the child up, then
it's probably unlikely. But more like if it's
respite? If it's respite, respite itself would
probably be classed to be social care provision.
Yeah, okay. Whereas if it is that somebody needs
an extended curriculum teaching outside of the
school hours that would and it would normally
be say and what we quite often look at this in
relation to is older sort of young people who
may be moving away from home you're trying to
get them into a residential school placement
you may be saying that they've got that need
to actually learn beyond just school hours because
actually daily living and independent skills
they aren't just. Those activities don't just
take place during school hours. You need to be
able to do them in different settings. You need
to be able to generalise. So those kind of provisions
which a local authority might argue are social
care, I would be saying that that's educational.
There's a need for an extended day curriculum,
which is an educational need. Just respite as
parents need a break, that would just be social
care provision. But this is why it's really important
actually to think about the three sections together.
Because there can be a crossover and it can sometimes
be a really fine line between what is educational
and what's not. And again, it's going to depend
on the individual child. But when it comes to
therapies like speech and language therapy and
occupational therapy, I really would not ever
expect to see them in Section G. In my perspective,
they should always be in Section F. The Code
of Practice says that they should normally be
in Section F. And we've got lots of case law
that confirms that as well. So from my perspective,
that isn't something that local authorities should
be getting wrong, but they still do. And they
will sometimes just split it. So sometimes they'll
put some occupational therapy in Section F. And
in particular with sensory needs, we quite often
see that sneak into provision in Section G, like
provision to meet that, which shouldn't be split.
It should all be in Section F. There's no reason
to split that provision. like I said, is legally
enforceable, local authorities have a duty to
ensure that provision is in place. So even though
it would technically be a school that would be
the ones that would be implementing the EHCP
day to day, if something in Section F is nice
and clear, for instance, if it says that they
should get 45 minutes a week of speech and language
therapy and they're not getting it, then there
is something that we can do legally to challenge
them if it is in Section F. it's really hard
to challenge it if it's in Section G because
it doesn't, the same duty isn't on the local
authority for Section G as it is for Section
F. So that's one of the reasons why that's really
important. That's really important. And so as
a school accepting a child, because obviously
you would receive their EHCP to see if you can
meet the need. If you see something like that
on Section F that says they need to receive 45
minutes of speech and language therapy and you
don't have a speech and language therapy on,
pissed on site by accepting that child are you
accepting as a school the cost of that or does
that have to be part of the negotiation of accepting
the child with the county or how does that then
work because we want as schools we want to say
yes to these children but we also want to make
sure that we can afford the cost of that And
obviously, the way that the funding is split
up sort of is that schools will have a little
bit of the funding going directly to them and
schools will be expected to use that funding
towards the overall cost. But you're absolutely
right. A lot of the things that go into Section
F, you know, the therapies, one to ones, they
can't all be funded just from that pot of money
that the school has directly. And from my perspective.
if a school is saying well we're not putting
this provision in place because we can't afford
it we say okay that's fine we'll communicate
that to the local authority so when we challenge
the local authority we'll say look the school
isn't implementing it because they haven't got
the resources to do it you as a local authority
have the legal duty to make sure that provision
is in place so if the school is saying they don't
have the resources from my perspective the local
authority needs to make sure that funding is
in place Now, I'm sure there will be some instances
where local authorities will say to a school,
you've got the money, we expect you to use it,
we're not giving you any extra money. Because
it might be that the school are using that on
other things that are deemed maybe less legally
binding, less important, and then the local authority
can negotiate in that way. However, if the school
literally do not have the money and they're already
spending far beyond their means on this child,
then yeah, it's up to the local authority to
pick up that slack, isn't it? Yeah. And what
I tend to find is because if a local authority
isn't putting in place the provision that's in
an EHCP, they can potentially be challenged by
something called judicial review, which is a
type of legal claim where you take the local
authority to the High Court and you say, look,
they're acting in breach of their duty. The EHCP
is really nice and clear. They should be providing
these 45 minutes of speech and language therapy.
They're not. Judicial review is actually quite
an expensive legal process. parents should be
put up for off by it pursuing it because there
are legal aid rules that quite often at the point
where you are wanting to take that support that
allow the means to be assessed on the child's
um means so actually quite often families can
get legal aid for that process or just want to
say that from the outset because i don't want
parents to be put off by looking at this potential
challenge because i've said it's very costly
there is potentially legal aid available to help
but from local authorities perspective they don't
get legal aid so these judicial review claims
they are very expensive if they lose then they
could be ordered to pay the parental cost or
pay that legal aid they are when it's black and
white they know that they're probably going to
lose you know it's the cases where the wording
is more woolly where they may think well we're
going to take it all the way to court because
actually we think it's not crystal clear and
we wouldn't really advise somebody do a judicial
review on wording that's really woolly which
again is why you want to make sure it's nice
and clear in section f so you know what should
be provided but ease for challenging it. But
because local authorities know this is an expensive
process, what you tend to find is that if the
school say they need more money, local authority
sorts that out. Because what they want to happen
is any threat of judicial review to go away quickly.
They don't want to have to be paying the cost
involved with defending a judicial review claim.
So if a parent is in that situation where the
school's saying, look, we can't afford it, not
a problem. Go after the local authority. That's
who you're meant to go after. And if the school
say they need more money, then the local authority
essentially needs to make sure that they do.
Yeah. And is that where somebody that gets in
contact with you, you could kind of support them
with that process and how to navigate that? So
before you're allowed to take it to court, you
have to draft something called a letter before
claim, which is also known as a pre -action protocol
letter, PAT, letter before action. It's all sorts
of names, basically the same thing. and we can
help parents draft those letters and actually
in the majority of the cases when it is nice
and clearly written in an EHCP those letters
will usually resolve things so the funding will
be in place or the local authority will have
that conversation with school and you know there
is a case that they've got the funding then that
will be sorted out but what we do tend to find
when we've had schools say to us before because
we have had situations where the parents and
the school are on the same page And the school's
saying, look, whatever you need, just let us
know. And then the schools will come back and
report it, that they have then been given the
extra funding to put that provision in place.
So it's always worth challenging. You have to
make sure your plan is nice and clear. This podcast
is like gold dust, I cannot tell you. It's amazing.
And so many, I get so many questions regularly
about this stuff because it is. so scary there
is such big wording it's really important to
get right but parents aren't told this stuff
so all teachers or say lots of senkos even are
really not sure about this stuff so this This
podcast is gold dust and will be pinned to the
top of everywhere, I can assure you. If people
have listened to this and think, right, I need
to know more. We're exactly in this process.
It's been years now of fight, fight, fight and
not getting anywhere. I need to get in touch
with Samantha. I'm going to have your Facebook
page information down below. And it's the HCB
solicitors group, isn't it? To get in contact
with you and yeah, to see if you can help. But
there'll likely be a lot of information on the
Facebook page. Hopefully this podcast gives you
the tools you need and the wording you need and
that you know you're right so that you can yourself
tackle this stuff. So thank you so much, Samantha.
That's okay. Thank you for having me. Amazing.
We'll have to have you back for talk about other
things because there's so many more. But yeah,
I'm really pleased that we started with this
EHCP process. It's really important. So thank
you. Thank you.