SEND: Busting common EHCP myths
Since the introduction of Education, Health and Care Plans (EHCPs) as part of the wide-ranging SEND reforms of 2015, some questionable practices have risen at local authority level. SENCO and Tes SEN North speaker Garry Freeman busts some myths about what is required and discusses practices that should be challenged on behalf of SecEd magazine.
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In March 2018, Damian Hinds spoke at length to address issues and concerns around teacher workload. He said that many factors affect workload and that any solutions would need to be multi-faceted and implemented over a period of time – no instant panaceas.
The secretary of state rightly drew attention to the efforts of governments since 2014 to both consult on and address the issue.
He was quite clear that we were learning that what we had thought were appropriate things for teachers to do were, in fact, taking teachers away from those truly high-impact things in their daily experience of teaching and learning – and often exhausting them in the process.
I have worked in the field of special and additional needs for more than a quarter of a century. Time and again, in different schools, and in my different roles as my career developed, I saw hard-working, committed, conscientious (some might say overly conscientious) teachers run the risk of harming their own health and wellbeing: they were drawn in to practices they simply didn’t need to do or made to work in ways or follow conventions that were wasteful, unnecessary, time-consuming and potentially harmful to them or the young people they worked with.
In most cases, these practices were the result of misconceptions, misunderstandings or plain ignorance of the law. There were many occasions too when colleagues in the field of special or additional needs were misinformed or misled by their colleagues in local government – again almost invariably caused by misconceptions around the law.
A prime example, the one which really made me stop and think, was when a fellow SENCO told a conference that they, and not their local authority, actually wrote the outcomes for a student’s new Education, Health and Care Plan (EHCP) following a statutory assessment.
I asked whether they meant that they submitted evidence towards the formulation of outcomes. The answer was a definite “no” – they wrote the outcomes and all of the provision and then sent it off to their local casework officer. I remember well the discussion their comments provoked!
I began to form a hypothesis and needed to test it. I needed further evidence of SEND myths and if they did indeed exist. So last year I began asking my Twitter followers about the myths of the SEND world.
I thought I might receive a few examples or comments from tweeters; that a handful of people might identify with my hypothesis and contact me. What happened exceeded all expectations and completely surprised even me – the myths of SEND came flooding in.
When I read the responses, which SEND colleagues and parents continue to send to me to this day, I was struck by a number of questions:
- How many of us in the role of SENCO are asked about working knowledge of the 2015 SEND Code of Practice?
- How many of us had to demonstrate knowledge and understanding of SEND law when we achieved our National Award?
- How many of us now feel sufficiently confident to support our students and parents by reference to the law when we encounter barriers in assessment, identification, provision and planning – particularly when it comes to statutory assessment and EHCPs?
- How many of us query what seems to be local custom and practice in terms of SEND provision?
- How many of us challenge what other SENCO and inclusion leaders may assert to be the unquestioned truth about aspects of provision?
- How many of us challenge the views of senior leaders on issues related to classroom practice and Ofsted when it comes to matters around SEND?
- The House of Commons Education Select Committee has for some months now been taking submissions about the world of SEND and the experiences of parents and young people. This inquiry, which is still on-going, is showing particular interest in the areas of EHCP needs assessments and local authority funding for young people with more complex needs and who require special educational provision detailed in an EHCP. We await the findings and recommendations with interest as they will surely touch on some of the issues below.
In the meantime, I want to give you some current examples of these SEND myths...
“You can only expect to get a statutory assessment if the child has a diagnosis.”
This is not the case. Following a request for statutory (EHCP) assessment the local authority must apply the only lawful test there is – in the Children and Families Act 2014 (part 3, section 36.8).
Although the local authority can develop its own criteria to help them decide when it is necessary to carry out an assessment, they must not apply a “blanket” policy which would prevent the consideration of an individual’s needs on their own merits (SEND Code of Practice, 9.16).
For a local authority to insist that a child or young person has a diagnosis can impact significantly on the SENCO’s workload and, provided that the school, parents and other professionals can evidence need and the steps taken to meet it, is completely unnecessary.
“A local authority has a non-statutory ‘plan’ which must be accepted as an alternative and ‘first step’ to an EHCP.”
This is becoming an increasingly contentious issue with a number of local authorities often recommending a non-statutory alternative “plan” as a way forward with provision after a statutory assessment.
Section 9.6 (SEND Code of Practice) refers to the fact that a needs assessment “may indicate ways in which the school, college or other provider can meet the ... needs without an EHCP”.
This can mean that the local authority, after an assessment, can suggest to a setting other legitimate ways – perhaps as yet untried – to meet the young person’s needs. What it does not mean is that anyone must accept a particular alternative way forward signposted by the local authority. These “alternative plans” currently come in different formats in different authorities, examples I have been told about include:
- A “My support plan”
- A “My learning plan”
- An “Enhanced learning plan”
None are statutory and none give the legal protection of an EHCP. Equally, the suggestion that a young person must have one of these plans as a first step to a full EHCP is entirely unlawful and outside the Code of Practice. Young people, their families and schools ought not to be accepting this argument.
“Schools must have three ‘rounds’ of the graduated Assess, Plan, Do, Review approach, across at least a year before a child can be considered for statutory assessment.”
Although I have heard of such conditions in a number of local authorities, there is no such requirement in the SEND Code of Practice. It is perhaps a product of schools being asked to meet with parents of SEND children three times each year (SEND Code of Practice, 6.65), although there is no requirement as to what format these meetings can take.
“If you wish your child to be considered for an EHCP assessment, you have to send us a list of 12 documents.”
I have seen this from two different local authorities, which detailed a long list of items/document that are described as essential for the assessment request to even be considered.
There is no such requirement for a long list of documents and it has been said that such misinformation is designed to use the terms of the SEND Code of Practice as a gatekeeping tool to protect local authority funds.
However, it is possible to see how the issue arises when looking at section 9.14 of the Code of Practice, which asserts that local authorities “will need to take into account a wide range of evidence”. It is also arguable that, since most requests for assessment may lead to the preparation of an EHCP, this move by a local authority is a way to pre-empt their duty to collect that “wide range of evidence”.
Either way, we do need to remember that the Code of Practice is statutory guidance as to how an authority might interpret the law.
The actual law is the Children and Families Act, of which part 3, section 36.8 clarifies the situation very well: “The local authority must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted ... the authority is of the opinion that: (a) the child or young person has or may have SEN, and (b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHCP.”
The key word is “may” in respect of a young person having SEN and it being necessary to make provision for them with an EHCP. Remember also that the law specifies that an authority must consider any evidence.
“Your EHCP needs assessment request must include specialist reports.”There is no such requirement in the Children and Families Act or the SEND regulations. However, the SEND Code of Practice does say (section 9.46) that the local authority must gather advice from relevant professionals about the child or young person’s education, health and care needs, desired outcomes and special educational, health and care provision that may be required to meet the identified needs and achieve the desired outcomes.
This could be where the misconception arises in that some local authorities are confusing the request for an EHCP needs assessment with the actual process of assessment itself, which must include an educational psychologist’s report commissioned by the local authority (Children and Families Act, part 2, section 6d).
Local authority officers, SENCOs and of course parents need to be true critical friends to one another. SENCOs should never hold back from being assertive with all partners and we must be prepared to acknowledge that to effectively advocate for SEND children and their families we need to question and to challenge practices that are not required and which add massively to our workloads. If a demand seems too great to be true, it probably is.
Garry Freeman has taught for 41 years. He is a SENCO and assistant principal in West Yorkshire. He is a national SEND system leader, an associate consultant and chair of nasen’s 0-11 Advisory Group. Garry tweets as @gfreeman2012.
You can read his previous best practice articles for SecEd here and visit the main SecEd website here.
Inquiry into SEND, House of Commons Education Select Committee, launched April 2018 (on-going): http://bit.ly/2tEJNWc
Special Educational Needs and Disability Code of Practice: 0 to 25 years, Department for Education, January 2015: http://bit.ly/27yye0p
Children and Families Act 2014: http://bit.ly/2H56tXJ