Tips for parents and carers from Katya Harrison.
In today’s system, many families consider an education, health and care plan (EHCP) as essential for their child or young person with special educational needs and disabilities (SEND). This perspective has emerged for a number of reasons. Some professionals argue that mainstream schools are becoming more “ableist”, meaning they may discriminate against or offer only limited support for pupils with SEND unless they receive an EHCP. Also, funding cuts have reduced the availability of resources for preventative support services and early intervention, leading to an escalation of needs and increased demand for EHCPs.
No matter how you look at it, obtaining an EHCP is currently seen as the only sure way to secure support. The process of securing an EHCP can be difficult for parents and carers. But another significant challenge is to ensure that the plan is effective. Many do not realise that if the plan is vague or poorly written, it might not function as required.
In England, it is common for local authorities (LAs) to issue vague, unclear EHCPs. These ineffective plans can be compared to chocolate teapots. The idea behind this metaphor is that although some documents may look appealing and have fancy words written all over them, when they are put to use, they fail to provide any valuable assistance. Just as a chocolate teapot would be impractical for making tea, vague or unclear documents might not fulfil their intended purpose.
In many cases, because the EHCPs are poorly written, the result is that children or young people do not receive the support they need, or sometimes, they receive no special support at all. It is a serious issue because families are forced to fight hard to ensure that their children receive the provision that they are legally entitled to. Because the language in the EHCP is vague, families find that enforcing it becomes a challenging battle.
There are various legal rules about how the provisions in EHCPs should be specified, but a commonly missed point is that the wording in the EHCP significantly depends on the advice and information in the expert reports that LAs use to write it. It is important that this is appreciated from the beginning of the process. The content of these reports is rarely questioned during the assessment stages, and families typically express concerns only when they receive draft EHCPs.
It is beneficial to apply the same legal drafting rules that are used for EHCPs for these reports, and that they are scrutinised while they are still in draft form, as this provides an opportunity to question their wording. Reports from experts are often copied by an LA word-for-word into the text of the EHCP. It is significantly harder to convince the LA to change the report’s wording once it has been copied into the EHCP.
The LA initially gathers evidence for the EHCP during the education, health and care needs assessment (EHCNA). Families also can submit their private reports during this part of the process. Advice is sought from professionals such as educational psychologists, speech and language therapists, occupational therapists, or other specialists, depending on the circumstances of the case. After the EHCNA has been completed and the EHCP is issued, its contents can be revised and updated as new evidence is collected about the child’s or young person’s evolving needs.
Not everyone can afford private advice, so it is important to review carefully the reports provided by the professionals that the LA engages. These reports should focus on accurately identifying needs and the required support, rather than being driven by the need to ration resources. If something seems to benefit the system rather than the child or young person, families should not hesitate to seek explanations and clarifications. They should insist that the best interests of children and young people are prioritised in all planning and advice.
Another pitfall to watch for is vague terminology in reports that describe the required special educational provision (SEP). SEP is a legal term that defines the support given to a child or young person that exceeds what a regular school can provide.
The term weasel words is used to describe the imprecise language that may be used to describe SEP. In practice, weasel words are tricky phrases that sound important but they are actually vague and confusing. People use them to avoid saying something definite so that it will be easier to change their meaning later if necessary.
For example, it might be stated that a child requires “up to” 10 hours of additional learning support per week. However, the weasel phrase “up to” suggests that the amount is not fixed, or that someone else will decide the amount. So, the child might end up with no extra help at all, since zero is included in “up to”.
When parents review any expert reports, they should closely examine any vague terms and consider whether these add useful definitions or create uncertainty. It may be necessary to request the removal of such terms or to replace them with more specific language and details to ensure clarity about the intended provision. This helps to prevent potential issues later on. If unclear or vague wording is included in the EHCP, the result may be that the support is not delivered in the correct quantity, by the appropriate person, or even at all.
All the above advice equally applies to the private reports, as sometimes the wording in them is also not as watertight as necessary. Professionals do not do this intentionally; it could happen due to their lack of knowledge about the legal rules around the writing of EHCPs. It is important to clarify any unclear points in these reports to make sure that they meet the required standards for the EHCP.
There may be times when parents cannot agree with the LA on the contents of the EHCP due to unspecific reports or conflicting expert opinions. In these situations, mediation or appeals to the SEND tribunal might become necessary.
Let us think back to the analogy that was used at the beginning, in which a poorly written EHCP was compared to a chocolate teapot. With this whimsical illustration imagine a sturdy and functional teapot to envision an improved version of the plan. In my book, I cover strategies for dealing with poorly written EHCPs and explore the legal options that are available to challenge such EHCPs. My hope is that, with this guidance, every ineffective EHCP can be transformed into a strong, effective plan that serves its users well.