This is Part 2 of a 3 Part series of blog posts on appealing Education Health and Care Plans ("EHCPs"). This blog focuses on extended appeals that include sections C and G (Health) and D and H (Social Care). Part 1 looked at appealing sections B (Needs) and F (Provision) and Part 3 considers appeals against section I (Placement). General guidance on time limits and the requirement for mediation can be found in the blog posts on Refusal to Assess Appeals.
If you are unhappy with the content of an EHC Plan following an Education Health and Care Needs Assessment (“EHCNA”) or Annual Review (“AR”), you can appeal to the First Tier Tribunal SEND (“the SEND Tribunal”). Until recently it was only possible to appeal those sections of an EHC Plan relating to education. Then in April 2018 a National Trial was piloted, extending the right of appeal to the sections dealing with Health (C&G) and Social Care (D&H). In August 2021 the trial was made permanent. As a result, appeals to the SEND Tribunal can now include a child or young person’s health and social care needs and the health and social care provision required to meet those needs.
It can sometimes be difficult to know whether needs and provision should be properly described as falling under health or education, and often they will overlap. One way of looking at this is to think about how, where and by whom, provision will be delivered. For example, findings and recommendations from an Occupational Therapist about a child’s difficulties with fine motor skills leading to handwriting problems, might at first glance appear to be health needs. But where the support required to meet those needs is a handwriting programme and use of a laptop, both delivered in school to support a child’s ability to access and engage in education, then they are likely to better understood as Special Educational Needs ("SEN") and the support required as Special Educational Provision ("SEP"). In contrast, sleep difficulties, whilst no doubt impacting upon a child’s ability to learn due to tiredness, are likely to be addressed through intervention from the NHS via sleep clinics or even medication (e.g, melatonin) and as such might more properly be thought of as belonging to health.
In the case of social care, local authorities often fail to undertake proper social care assessments under s.17 of the Children Act 1989 as part of an EHCNA. Such assessments must be conducted by a social worker within 45 days of the referral date and the social worker should be from the local authority’s disability team not their safeguarding team. The type of support that may be available to children, young people and their families* following a social care assessment includes support to attend playschemes and after school clubs, support with holidays and respite care.
Unlike with SEP in section F, the Tribunal does not have the power to make orders in respect of either section G or H. Instead the Tribunal is able to make non-binding recommendations to health bodies (now Integrated Care Boards or ICBs) and local authority social care departments. Both must have a good reason not to follow the recommendations of the Tribunal, but ultimately if they choose not to you cannot challenge their failure except thorough their respective internal complaints procedures and the Local Government and Social Care Ombudsman ("LGSCO").
SEND Advocacy can support you to appeal against the content of your child or young person's EHC Plan, including the health and/or social care aspects. If you need someone in your corner to help you secure the education your child deserves, contact us today.
*under s.2 of the Chronically Sick and Disabled Persons Act 1970
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