The Education Health Care Plan (EHCP) Complaints procedure
Photo from the DSA Memories & Stories Exhibition, March 2022. Photo by Blair Moore Media.
Sharing our experience to help other parents and carers
After our own experience of moving borough from Surrey to Devon with an EHCP in place, but therapies not being put in place in Devon for five months, I have written this to help other parents and carers.
A friend in Surrey began to share what I have written below as a word document with parents and carers of children with additional needs who she knew were having challenges getting support in place for their children. Before she knew it ten people had asked for it in a short space of time, so I felt it was necessary to post it on here.
Kevin and I are aware that so many parents and carers of children with additional needs come across hurdles to get support in place. It takes courage, determination, time, energy, dedication and belief.
It takes getting up again when you feel exhausted, and it takes rewiring your inner voice from feeling you are complaining and feeling bad about that, to knowing you are doing something incredible for your child by standing up for what they deserve and need. To every parent or guardian reading this, you can do it.
Which parents and carers is this relevant for?
· Those who are moving borough whose child has an EHCP in place
· Those whose child has an EHCP and who are not moving borough and who wish to have the wording to use to ensure therapies listed in the EHCP section F are in place.
Relevant law and statutory guidance:
· Special educational needs and disability (SEND) code of practice: 0 to 25 years
9.157 - 9.162, 9.76
· The Special Educational Needs and Disability Regulations 2014 (SEND Regulations)
Regulations 15 and 16
· The Children and Families Act 2014 (CFA 2014): Section 42 and Section 47
Helplines contacted:
IPSEA Call in Helpline: Open on a Friday, legally based advice and support
Scope: Disability Equality Charity in England and Wales.
DIAS – there is an equivalent for each area e.g. called DIAS or SENDIASS
Useful case study:
How a parent held her council to account for its SEND failures - Special Needs Jungle
Useful template messages when therapies in Section F are not in place:
template messages from SOS!SEN
EHCP process underway in Surrey, March 2021 (Move to Devon planned for August 2021)
We began the EHCP process for Coraline when she was three-and-a-half-years-old. I phoned the SEN team at our prospective new Local Authority in Devon and asked if they would accept an EHCP plan issued in Surrey, and they said, “yes, we will take it on the same provision”.
EHCP issued in Surrey, June 2021
Our EHCP Co-ordinator in Surrey phoned the new SEN team at the Local Authority in Devon in June 2021 and sent them the EHCP, explanation of the funding attached to the plan, our new address and new preschool name. The SEN team in Devon had said it was good to do this a month or so in advance of the move.
Tips
· See separate post on my top ten tips for issuing an EHCP.
· Key tip: Ensure all therapy provisions are quantified and specified in Section F of the EHCP as this section is legally enforceable.
Move to Devon planned for 3rd August 2021
Tips
· See separate post on a checklist when moving boroughs with an EHCP in place
What happened in our case after we moved, August – December 2021
Tip 1: Statutory timeframes regarding the transfer of the EHCP
We moved to Devon on 3rd August 2021. Coraline began at her new preschool in September 2021. Physiotherapy, Speech therapy and Occupational therapy provision was listed in Section F of her EHCP.
I contacted the SEN team at our new Devon Local Authority to ask about the status of our daughter’s EHCP. Between September – November 2021 I made five phone calls to the team asking our caseworker to call me back and I sent our caseworker four emails asking her to contact me.
I first spoke to our caseworker in mid-November 2021, over three months after we had moved. I spoke to more senior members of the team in October 2021 and they referred me back to wait to speak to our case worker.
Tip: I kept a spreadsheet with the date, who I spoke to, and what was said.
Relevant legislation
Our caseworker was in breach of statutory timeframes regarding the transfer of the EHCP.
According to the SEND Code of Practice section 9.160, within six weeks of the date when your child’s EHC plan is transferred, the new Local Authority team must tell you (or the young person) when they will review it and whether they propose to make an EHC needs assessment.
See: SEND Code of Practice section: Transfer of EHC plans, p.192, 9.157 – 9.162
Section 47 of the Children and Families Act 2014 and
Section 15 and 16 of the SEND Regulations 2014
As a separate point, as Coraline was under five years old she was due a review of her EHCP every six months after it was issued. Her first review was due in December 2021 and was missed. After a child turns 5 years old their EHCP should have at least an annual review. For changes at any other time of year you can request an “interim annual review”.
Tip 2: The therapy provision in Section F of the EHCP is legally binding after it is issued and this also applies immediately when it is transferred between boroughs
I asked the SEN team in our new Local Authority every time I called, “can I check if my daughter’s EHCP has been approved here in Devon?”
On 16th November 2021 our caseworker confirmed that our daughter’s EHCP had been approved.
I was asking the wrong question. Our daughter’s EHCP was a legally binding document as soon as it was transferred between boroughs, so it was never a question of it being approved.
I was asking if her EHCP was approved because I knew that Section F was legally binding and I knew that I could challenge it if the therapies in that section were not being provided, once I knew the document was approved. However, as I have said, I could have challenged immediately as there was no such thing as it needing to be “approved”.
Relevant legislation
Advice from helplines in early January 2022:
· “The new Local Authority is responsible for providing the educational provision named in Section F of the EHCP from the day on which the EHCP is transferred to them. This should happen on the day of the child’s moving into the new Local Authority area or within 15 days of the new Local Authority being made aware that the child has moved into the area.” (Regulation 15 of the SEND Regulations 2014)
· “First, I can confirm that Surrey were required by law to transfer her EHCP when she moved to Devon. Devon have to accept the Plan as it is (except as to the school named in section I), but they should have notified you within 6 weeks of the transfer when they will formally review the Plan – this is normally done every 12 months. Second, I can confirm that following transfer, Devon are legally obliged to make all the provision set out in Section F of the Plan. Third, enforcement of the Plan is by way of judicial review proceedings.”
· “EHCP provision is legally binding on the Local Authority under Section 42 of the Children and Families Act 2014.”
Tip 3: Where it is not possible to secure NHS therapies the Local Authority must source private therapists
Referrals were made by Coraline’s therapists in Surrey to the new therapy teams in Devon right at the date we moved for Occupational Therapy and Speech and Language Therapy. Referrals can usually only be made on the date of the move or very soon afterwards i.e. not before you move. Physiotherapy was made on 2nd September (they were on leave over the summer). We knew we had done all we could in terms of timely referrals.
I checked on the status of Coraline’s referrals with the new NHS therapy teams in Devon in October 2021. I discovered that the waiting lists were very long. Some were over a year.
The Devon SEN team should have found out these waiting list times, and advised me of them. They should then have found private therapies as the NHS waiting lists were too long. The issue is it can sometimes be hard for the Local Authority to source private therapists due to lack of availability, however it is their statutory duty to do so. Our caseworker began looking at private therapists in November 2021 and was still looking in December 2021.
Relevant legislation
(SEND) code of practice: 0 to 25 years 9.76
“In cases where health care provision or social care provision is to be treated as special educational provision, ultimate responsibility for ensuring that the provision is made rests with the local authority (unless the child’s parent has made suitable arrangements) and the child’s parent or the young person will have the right to appeal to the First-tier Tribunal (SEN and Disability) where they disagree with the provision specified.”
The EHCP Complaints procedure, December 2021
Helplines explained the EHCP complaints process to me. They told me I should first try to resolve matters with the Local Authority SEN team and then, approach in order: the Chief Officer for Children’s Services at the Local Authority, the Local Authority’s official complaints system (who deal with investigating complaints) and finally the Local Government and Social Care Ombudsman (LGSO) for a ruling which would be published anonymously (we could approach LGSO if matters were not resolved by the Local Authority).
Here is the process we followed for our complaint:
Mid-December, Caseworker: We gave her a timeframe by which we were going to approach the Chief Officer for Children’s Services at the Local Authority if the provision set in Coraline’s plan was not in place.
Late-December, I emailed our caseworker’s manager on the SEN team and the Head of SEN team and asked to discuss our case. I explained that we wanted to give them a chance to put the therapies in place before we went to the Chief Officer for Children’s Services. They began to look into things.
January 2022:
Here is the text of the email I sent to the Head of the SEN team and the SEN team manager (I used template messages from SOS!SEN to form the basis of my email):
“I would like to resolve this matter constructively, but in view of the continuing delay, I must warn you that if I do not hear from you by 14th January, one week from today, I will have no choice but to consider action through the courts by way of an application for Judicial Review in our daughter’s name to enforce her entitlement to special educational provision.
Please may I therefore hear from you by that date without fail, with full details of the Physiotherapist, Occupational Therapist and Speech Therapist appointed in accordance with the terms of her EHC plan, his or her experience of the unique learning profile of Down’s syndrome, and his or her qualifications, and the proposed start date which should of course be before 21st January, two weeks from today’s date. If I do not hear from you by 21st January with this information I will have no choice but to take legal advice with a view to judicial review proceedings in which, of course, we will seek an order that the LA pay the costs involved.
I have copied in the Chief Officer for Children’s Services and will send her a separate email detailing the situation.
I will follow Devon County Council’s formal complaints process as I do not believe another parent should experience what I have experienced in relation to their child’s EHCP.
I would like to request an urgent meeting with a senior member of the Local Authority.
I would like to request a phased transfer review meeting as our daughter will be starting in reception this September 2022. I have been advised that with a phased transfer a review of the plan is required, which has to be completed by 15th February 2022, and that this is a formal legal process which includes a sit-down meeting and discussion of the plan. I would like to request notification of a date for this meeting before 15th February 2022.”
I received a reply which I did not feel was satisfactory.
I contacted a solicitor who gave me an incredibly helpful email reply for free which they allowed me to quote anonymously in an email to the Local Authority SEN team.
I said in an email to the Head of SEN team and SEN team manager at the Local Authority that I had contacted a specialist solicitor and it was the solicitor’s view that:
“The LA is diverting your attention. If therapies are specified in Section F, then the LA is the commissioning body (which it acknowledges: ‘we are commissioning the outstanding therapies elsewhere’). Once notified by Surrey that the child would be moving into its area, Devon should have taken steps to ensure the provision was in place for the start of the Autumn term. If the provision is yet to be made, this is an ongoing breach of s.42 of Children & Families Act 2014.
This could be a matter for judicial review (and the court can order the LA to secure the provision going forward), but the missed provision would be better addressed through a complaint to the Local Government and Social Care Ombudsman (LGSCO), who can direct the LA to compensate the child for the lost therapy sessions. An LGSCO ruling can also be effective in deterring the LA from behaving in the same way with other parents.”
I am sharing the terminology we used, as it is what made a difference to us in our case. Following the Complaints system at the Local Authority and approaching the LGSCO is free of charge.
We heard back from the Local Authority Complaints team, and they set up a meeting for us.
Therapies in place, with private therapists, January 2022
In advance of the complaints meeting and between mid to late January three private therapists were appointed for our daughter and she began to have her sessions with them. She also had appointments to assess what equipment she required and we received a walker for our daughter at the end of January 2022.
Formal Complaints meeting with the Local Authority, February 2022
A formal complaints meeting with the complaints team at Devon County Council, SEN team representatives and a representative from the NHS was held at the beginning of February.
This was a constructive meeting and we were awarded compensation for every hour of therapy missed which was specified in Coraline’s EHCP since the start of the Autumn term in September 2021 with a set monetary amount of compensation per hour. This was immediately offered at the meeting. We did not need to ask for it.
Kevin and I chose to begin the meeting stating the positive emotions and impact on Coraline and us now that therapies were in place (they were put in place a few weeks before the complaints meeting). We wanted to connect the members of the meeting to the emotional “why” from the very beginning and for them to see the value in the provision. We felt this brought the right energy to the meeting.
We have not brought our case forward for an LGSO ruling, as it has been resolved to our satisfaction at this meeting so there would not have been a case for the LGSO to look at.
There is no written ruling about our case as the agreement for compensation is between ourselves and the Local Authority SEN team, but we advised them that we would write up this case study to help other parents.
We had three levels to our complaint to the Local Authority complaints team:
· For the SEN team to review their practices and response times to ensure they are meeting their legal obligations in future, so that other parents do not experience what we experienced i.e. unclear responses and insufficient timescales for action taken.
· Compensation for missed therapy provision as it was the Local Authority’s statutory duty to provide it, or double up on therapies for the next five months for the missed months of therapy.
· A ruling from the LGSCO for other parents to refer to (in the end we did not ask for this as we already had our outcome).
We could also have asked for compensation for all of our time taken up and the mental distress of pursuing this (see the Ombudsman’s ruling in this case study where this is awarded) but we chose not to do so.
Advice we received from the helplines (quoted anonymously):
“If you feel that the child requires additional support to make up for lost learning and therapies while you were waiting for the issues surrounding EHCP provisions to be resolved then you should request this from the Local Authority. At the next review you can ask for additional provisions which you feel are necessary to be included in the child’s EHCP and can appeal to the First Tier Tribunal (SEND) if you are not satisfied with the special educational provisions named.”
“The Local Authority already have a legal duty to secure the provision named in Section F of an EHCP. If they fail to do so then it is for the individual parent to take action for failures in relation to their child’s EHCP.”
Emotions I felt as a parent
The lack of provision for Coraline lasted between August 2021 to January 2022. This had an emotional impact for me during that time. I felt confused. I knew it wasn’t right but I didn’t fully know my rights. I knew a lot of them but not all. My phonecall to IPSEA was a gamechanger for me as they knew exactly what I should do, and how.
I often said to Kevin during this process, “they hate me” (in reference to the SEN 0-25 team at the local authority) when I kept standing my ground in emails, and when I sent firm emails. I said to him, “I wish I could tell them I am not the sort of person to complain normally”. From what I hear, we are pushed to complain as parents and guardians and it should not be this way. I have come across so many parents struggling as we have, and that is why I have written our case up.
How did I feel?
Demoralised, dejected, dismayed.
Utterly exhuasted. I spent hours and hours and hours on my spreadsheet and on putting our case to the local authority, and on the phone to helplines figuring out our rights.
I did cry some nights with the overwhelming nature of taking a stand, as it is so out of character for me, but I simply knew I had to. I knew that things would only change for us, and other families, if I did so. My driving force was knowing I could help other families too if I could write up my case for them, as I am doing now. And if we could bring about change in communication timescales for other families.
Impact on us as parents
We lost our routine of what we were doing with Coraline as it was only us and no EHCP provided professional support to buoy us and energise us.
We lost confidence in what we were doing, as we did not have any EHCP therapy provision for five months. Coraline did not have structure, or routine at school or training for the school staff to know how to develop her.
I lost confidence in myself as I felt terrible for complaining. It really affected me having to step outside of my comfort zone and complain.
I lost days of time to calling helplines, and putting together our case.
I became exhausted
Thank goodness we had a Private O.T. we saw once a month for Coraline during this time. She kept us going. She is sensational.
Thank goodness Portage were there to help us. I had our initial assessment call with them in November 2021 and our first home visit in December 2021. This support meant so much when we had no EHCP therapies in place.
Impact on Coraline
Coraline is not yet walking or talking. She turns five in August 2022. Her early years are critical years to her development. Routine is paramount at school for her development. As there were no therapists to devise a routine, all of the daily recommendations for activities specified in her EHCP were not in place for her at school. We tried as her parents to advise her new preschool in Devon. I made training videos for them on Makaton and on the learning profile of a child with Down’s syndrome, and did all I could. I felt pressure on me as parent to provide the structure that was needed myself.
We had worked for months back in Surrey for Coraline to use a walker. The month before we moved to Devon, July 2021, her preschool in Surrey had a walker to use and Coraline was using a walker there and at her weekly afternoon at Small Steps . Small Steps give children who need it a helping hand to take their first steps. They are an incredible charity. It is through their considerable weekly dedication that Coraline began to use the walker.
After a gap of five months without a walker in Devon (as it is provided, and measured up by the NHS, via Coraline’s EHCP) Coraline now point blank refuses to use one. Her new preschool in Devon cannot get her to use it, and nor can we as her parents. She is not yet walking independently, and this could really help her to feel independent. This gap erased the dedicated progress we had made at Small Steps with Coraline using a walker.
Let us put it another way. What is the impact when the therapies are in place?
Coraline had already missed a great deal of therapies during the pandemic, and to miss another five months on top of this was serious for her development. High levels of Occupational Therapy support were written into her EHCP for a reason.
Our confidence has returned as parents. This has a huge effect on us and Coraline.
I am more relaxed. I am no longer pushing and chasing and worrying
I have time back i.e. no longer spending hours writing things up or on calls to helplines, and waiting on hold trying to get through to them
Coraline is receiving input and support for her mobility and speech
Therapists are helping Coraline’s school to put a routine in place for her and with visual supports and obejcts of reference to use
For a child where everything feels wobbly, to have her Piedro Boots back after five months without them to stabilise her ankles, is a big thing
Coraline has the equipment she needs. She has a walker again but refuses to use it.
Staff at Coraline’s preschool understand from the professionals that Coraline is working harder all the time e.g. to sit unsupported, due to her low muscle tone, and know what to do to help her.
My younger brother Ed’s opinion after reading this post
‘What I see (in addition to the positives you list at the end) is a really big growth for you, and maybe why you have gone through this:
Then: "I lost confidence in myself as I felt terrible for complaining. It affected me having to step outside my comfort zone and complain."
Now: "I have confidence in my ability to stand up for what is right. I am proud of myself for taking people to task in a measured and constructive way. I have a right to complain, and now see that as a tool. I am able to have my voice heard and not feel guilty. It is OK to stand my ground, it is not causing a fuss. Sometimes, only by complaining can you get what you want, need and deserve. People will not hate me, and if they do it shows they have a problem, not me. I enjoy finding my power and using it for the greater good - namely for both Coraline and other parents and carers. I am strong and resilient, and not afraid of confrontation."‘
See also: