The Local Government Association (LGA) has long lobbied for ‘reform’ of the legal rights that attach to the educational needs of disabled children and young people. In 2022, an LGA-funded report blamed the increase in SEND Tribunal cases on an ‘unbalanced’ statutory framework and ‘affluent’ families using lawyers. Through lobbying and similar reports, the LGA has been at it ever since.
This imbalance, the LGA contends, arises from the legal enforceability of education, health and care plans (EHCPs), the documents which should be co-produced by a family, school, the local authority and health professionals.
An ECHP names an ‘education setting’ (school) and the support a student needs in that setting – certain therapies, for example, or 1:1 support.
As Polly Sweeney, partner at public law specialists Rook Irwin Sweeney, told me this week, the EHCP system, backed by the jurisdiction of the SEND Tribunal, is ‘very often the only way that [families] are able to ensure their child gets the provision they need, in the right setting’. (The tribunal hears appeals on failures to assess and disputes on the contents of EHCPs.)
You would think from the way ministers and the LGA talk, that EHCPs are written up with a fight in mind. But as Sweeney also reminded me, they ‘provide clarity to everyone involved – what should be provided, by who, when and where’.
These are not documents hell-bent on confrontation. For example, section A of my late daughter Amy’s EHCP, which would never become a legal dispute, states: ‘When something makes her laugh, like someone being silly or a funny story, she has the most infectious giggle, and she enjoys it when people respond.’ She likes ‘the attention she gets when she does something well’.
These plans are designed to be useful and should be referred to continuously as a guide. It is indifference, not adherence, to the provision EHCPs set out that puts local authorities on the road to losing at the SEND Tribunal. As Sweeney added: ‘Local authorities’… track record in terms of doing what they ought to… speaks for itself.’
Education ministers may resent the anger they have stirred up on this issue. They need look no further than one EHCP for the cause of such anger. ‘What Amy dislikes,’ I am reminded, included ‘being ignored.’
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