Case Law - Challenging EHC Plans

By Dr Alan Courtney

In order to challenge the local authority on decisions related to EHC Plans you will need to refer to Children and Families Act 2014. You may also find the Equality Act 2010 a useful reference as well. This may sound slightly overwhelming, but there is no need to panic. There are many free to use guides and sources online and in books, as well as your fellow SEND support networks that include this group. There is almost no substitute for experience of the process so please ask for help. There are many good, free sources of case precedents (Tribunal decisions) that you can use to either argue your case to the LA in a mediation meeting, in response to an EHC Plan draft, or to support your case at Tribunal. The IPSEA website lists some and is a great starting point. The book “Special Needs and Legal Entitlement is another and includes a walk through to the legal workings of SEND with examples of common problems (the look of LA officers faces when you walk into meetings with this tucked under your arm is always a picture moment). But, there are plenty of good examples you can find by using an internet search engine. Don't be intimidated. Yes, you may have to get used to some legal jargon, but most come with summaries and comments that are generally accessible to all (I have had no legal training at all).

To Specify or Not to Specify - That Should Not Be The Question

A common theme, which we have found has confused parents of SEND children (and schools and other SEND groups) is Sutton's new funding band statement. Sutton have recently revamped their EHCP templates and are no longer specifying hours as a funding band. Instead they simply refer to top up funding that the LA/Cognus provide in addition to the school notional budget. This is completely above board. However, they absolutely do have to specify any and all 1:1 and/or group TA/LSA hours and their required level of experience within the plan for mainstream education. Do not let them tell you otherwise! They will likely tell you that this is not the case, that you are wrong, or that Tribunal has previously found in their favour (or it states the TA/LSA support hours are in an appendix). Do not settle for any of this. The implications here are unlawful.

In my opinion from hearing anecdotal evidence from other parents, by not stating the number of TA or LSA support hours it makes it easier for LAs to remove provision at review meetings. Additionally, schools are under no obligation to meet this without it being in the plan (particularly if they are unable to recruit on minimum wage for example). You will likely need to be prepared to appeal by taking them to Tribunal, but rest assured the stats tell us that a Judge is likely to rule in your favour when appealing against a plan for a child in a mainstream environment (in bases or specialist provision there is a different staffing ratio and in these cases such specificity is not always required, however there are exceptions).

There is a very useful case precedent you can use that will get them cornered:

JD v South Tyneside Council (SEN) [2016] UKUT 0009 (AAC)

Judge Rowley’s observation in relation to the Learning Support Assistant (LSA) who is to support the child is particularly important. He emphasises that the following should be identified:

1. The quantity of support;

2. Training requirements for the LSA; and

3. Experience that the LSA must have.

An EHC plan can refer to bands or other funding arrangements but not instead of specification of special educational provision (which, in most cases, will require the quantification of such provision see: SEN and Disability Code of Practice 2015; JD v South Tyneside [2016] UKUT 9 (AAC); B-M and B-M v Oxfordshire CC [2018] UKUT 35 (AAC)).

" in very many cases it will not be possible to fulfil the requirement to specify the special educational provision considered appropriate to meet the child’s needs, including specification of staffing arrangements and curriculum, unless hours per week are set out.” L v Clarke and Somerset [1998] ELR 129;

Specific & Quantified Provision

You should have the number of hours of LSA/TA support 1:1 and/or group support specified in your child's EHCP (in addition to the top up funding amount that the LA provide). Otherwise it is anyone's guess what the school may or may not provide and it should be in no doubt in anyone's mind what is required. Otherwise it is left entirely up to the school and if you had to move outside the borough it could be interpreted by another LA just as vaguely.

In terms of getting an increase in the number of hours of LSA support for your child (in my personal experience I found Cognus/LA instinct was offer less than what I felt was reasonably required to meet the needs/provision in section B/F). It is very helpful (although not essential) if either yourself and/or the education setting can provide a breakdown of exactly how the LSA/TA will be used to meet the provision under the current budget that has been allocated in the EHCP. This again will corner Cognus/LA, and provide a solid case when representing your child at Tribunal as it will show that the provision (i.e. money allocated) does not meet the need.

Final point to note: recent experience with these types of case is that Cognus/LA often attempt to settle just prior to tribunal (or in some cases after missing the required deadlines). I believe it’s a typical delaying tactic, particularly as you then need to apply for a consent order (and they then have 5 weeks to fulfill the agreement from the Tribunal's signed order).