As has been noted in an earlier post, there is no statutory form or template, created centrally which must be used when securing an EHC Plan. Instead the detail of what should be in the EHC Plan is prescribed by regulation 12 of the Special Educational Needs and Disability Regulations 2014.
However on a day to day basis, when plans are being drafted, the professionals responsible for hammering out the detail of the plans, can be expected to use the guidance contained in the SEND Code of Practice, which sets more detail in terms of what can be expected to be included in each section, a checklist for what must be included and commentary on how the various sections of the EHC Plan are meant to interweave to produce a holistic plan.
Accordingly paragraph 9.62 of the Code first directs the attention of the drafter to the statutory requirements:
9.62 The format of an EHC plan will be agreed locally, and it is expected that the plan will reflect the principles set out in Chapter 1 of this document. However, as a statutory minimum, EHC plans must include the following sections, which must be separately labelled from each other using the letters below. The sections do not have to be in the order below and local authorities may use an action plan in tabular format to include different sections and demonstrate how provision will be integrated, as long as the sections are separately labelled.
As noted previously the sections of a plan are labelled A to K, and each section is meant to be distinct from, but also consequential to the other sections in the plan. Although sections B, F and I, can be thought to be the most important sections, as it is those sections which are liable to be substantially rewritten by a First Tier Tribunal, it is important to put the other sections in context as each has a role to play in a child or young person’s well being:
Section A: The views, interests and aspirations of the child and his or her parents or the young person.
Section B: The child or young person’s special educational needs.
Section C: The child or young person’s health needs which are related to their SEN.
Section D: The child or young person’s social care needs which are related to their SEN or to a disability.
Section E: The outcomes sought for the child or the young person. This should include outcomes for adult life. The EHC plan should also identify the arrangements for the setting of shorter term targets by the early years provider, school, college or other education or training provider.
Section F: The special educational provision required by the child or the young person.
Section G: Any health provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN. Where an Individual Health Care Plan is made for them, that plan should be included.
Section H1: Any social care provision which must be made for a child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.
Section H2: Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN. This will include any adult social care provision being provided to meet a young person’s eligible needs (through a statutory care and support plan) under the Care Act 2014.
Section I: The name and type of the school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person and the type of that institution (or, where the name of a school or other institution is not specified in the EHC plan, the type of school or other institution to be attended by the child or young person).
Section J: Where there is a Personal Budget, the details of how the Personal Budget will support particular outcomes, the provision it will be used for including any flexibility in its usage and the arrangements for any direct payments for education, health and social care. The special educational needs and outcomes that are to be met by any direct payment must be specified.
Section K: The advice and information gathered during the EHC needs assessment must be attached (in appendices). There should be a list of this advice and information.
The enforceable part of a plan, is that which is concerned with educational provision, because an appeal lies from the content of sections B, F and I to the First Tier Tribunal. But an EHC plan seeks to go further by, as the acronym suggests, also listing matters of health care and social care, although these are not matters over which the First Tier Tribunal has a jurisdiction. However in real life, things are not so simple.
In particular some forms of provision could be either educational provision or healthcare provision, and so apt to go into either section of the plan. It will be in the interests of the child or young person to have as many forms of provision as possible in section F, as then they must be provided by the local authority and failure to do so, can be enforced by way of a mandatory Order obtained in judicial review proceedings in the High Court.
The Code also deals with older children or young people, and emphasises the need for these children to be prepared for adulthood or independent living.
9.63 In addition, where the child or young person is in or beyond Year 9, the EHC plan must include (in sections F, G, H1 or H2 as appropriate) the provision required by the child or young person to assist in preparation for adulthood and independent living, for example, support for finding employment, housing or for participation in society
Section E is also important because it deals with outcomes: in a sense what is the special educational provision for identified needs, trying to achieve?
9.64 EHC plans must specify the outcomes sought for the child or young person in Section E. EHC plans should be focused on education and training, health and care outcomes that will enable children and young people to progress in their learning and, as they get older, to be well prepared for adulthood. EHC plans can also include wider outcomes such as positive social relationships and emotional resilience and stability. Outcomes should always enable children and young people to move towards the long-term aspirations of employment or higher education, independent
The Code also tries to distinguish between aspirations and outcomes:
9.65 Long-term aspirations are not outcomes in themselves – aspirations must be specified in Section A of the EHC plan. A local authority cannot be held accountable for the aspirations of a child or young person. For example, a local authority cannot be required to continue to maintain an EHC plan until a young person secures employment. However, the EHC plan should continue to be maintained where the young person wants to remain in education and clear evidence shows that special educational provision is needed to enable them to achieve the education and training outcomes required for a course or programme that moves them closer to employment. For example, by accessing a supported internship or apprenticeship.
Conceptually, the distinction between an aspiration and an outcome, can be quite subtle, so the Code attempts to draw a bright line between aspirations and outcomes:
9.66 An outcome can be defined as the benefit or difference made to an individual as a result of an intervention. It should be personal and not expressed from a service perspective; it should be something that those involved have control and influence over, and while it does not always have to be formal or accredited, it should be specific, measurable, achievable, realistic and time bound (SMART). When an outcome is focused on education or training, it will describe what the expected benefit will be to the individual as a result of the educational or training intervention provided. Outcomes are not a description of the service being provided – for example the provision of three hours of speech and language therapy is not an outcome. In this case, the outcome is what it is intended that the speech and language therapy will help the individual to do that they cannot do now and by when this will be achieved.
9.67 When agreeing outcomes, it is important to consider both what is important to the child or young person – what they themselves want to be able to achieve – and what is important for them as judged by others with the child or young person’s best interests at heart. In the case of speech and language needs, what is important to the child may be that they want to be able to talk to their friends and join in their games at playtime. What is important for them is that their behaviour improves because they no longer get frustrated at not being understood.
The importance of outcomes can have forensic significance. The detail of the EHC plan is meant to facilitate a particular outcome. Equally a failure to achieve a particular outcome, might call into question the efficacy of particular provision which is being given. That in turn can lead to the question whether continued particular provision is actually a course worth pursuing.
9.68 Outcomes underpin and inform the detail of EHC plans. Outcomes will usually set out what needs to be achieved by the end of a phase or stage of education in order to enable the child or young person to progress successfully to the next phase or stage. An outcome for a child of secondary school age might be, for example, to make sufficient progress or achieve a qualification to enable him or her to attend a specific course at college. Other outcomes in the EHC plan may then describe what needs to be achieved by the end of each intervening year to enable him or her to achieve the college place. From Year 9 onwards, the nature of the outcomes will reflect the need to ensure young people are preparing for adulthood. In all cases,EHC plans must specify the special educational provision required to meet each of the child or young person’s special educational needs. The provision should enable the outcomes to be achieved.
Outcomes are not just long term goals. They will include shorter term targets. Some of these targets may be extraneous to the EHC plan in the view of the drafters of the Code:
9.69 The EHC plan should also specify the arrangements for setting shorter term targets at the level of the school or other institution where the child or young person is placed. Professionals working with children and young people during the EHC needs assessment and EHC plan development process may agree shorter term targets that are not part of the EHC plan. These can be reviewed and, if necessary, amended regularly to ensure that the individual remains on track to achieve the outcomes specified in their EHC plan. Professionals should, wherever possible, append these shorter term plans and targets to the EHC plan so that regular progress monitoring is always considered in the light of the longer term outcomes and aspirations that the child or young person wants to achieve. In some exceptional cases, progress against these targets may well lead to an individual outcome within the EHC plan being amended at times other than following the annual review.
In a sense if you cannot measure something, you cannot manage it. And for many children with special educational needs, rigorous and consistent scheduling or timetabling, in bite size chunks, with checks on progress will be a recurrent theme.
The Code includes (at pages164 to 169) a helpful checklist of what to include in each section. It is important to note that as the EHC Plan is a legal document, creating enforceable obligations, then just as much as a contract or a legal pleading, it is important that the draft is clear with specific details of needs and provision, spelt out carefully.