Education, Health & Care (EHC) needs assessments and Education, Health & Care plans (EHCPs)

An Education, Health and Care plan (EHCP) is a legal document. EHCP’s are made for children and young people (age 0-25) who have Special Educational Needs and/or Disabilities (SEND) that cannot be met by the support that is already available at their early years setting, school or college within SEND Support through the Torbay SEND Support and Provision – Graduated Response. An EHCP will only be issued for a child or young person following them having had an Education, Health and Care (EHC) needs assessment. An EHCP describes an individual child or young person’s Special Educational Needs and/or Disabilities (SEND). It also sets out the support necessary to meet those identified needs which will help them achieve their desired outcomes.

This video has been created by local Children and Young People.

This is one of a series of 3 videos to help children, young people and their families understand more about Education, Health and Care plans (EHCPs). The other 2 videos in this series are:

• What Happens In My Annual Review (video for Children & Young People) – Family Hub (torbayfamilyhub.org.uk)
• What is a phase transfer (video for Children & Young People) – Family Hub (torbayfamilyhub.org.uk)

SENDIASS Torbay (Special Educational Needs and/or Disabilities, Information, Advice and Support Service)

We provide impartial information, advice and support to parents/carers & children/young people in relation to special educational needs and/or disability issues for children/young people aged 0-25. 

Working across education, health and social care our officers provide confidential and impartial advice, as well as ensuring that parents and carers’ views are heard and understood and that they understand their rights, roles and responsibilities.

SENDIASS Torbay supports parents through a range of ways including phone or email contact and face to face meetings. We have recently started running coffee mornings for Parents to be able to share thier experience and learning with each other and gain new information from us and other professional invited speakers. (Please see the flyer, attached within the downloads section on the right hand side of this webpage, for more information including dates, times and venues)

We also provide a signposting service to direct parents and carers towards the organisations that is best suited to help them, ensuring that they are empowered to make informed decisions about their child’s future.

SENDIASS Torbay can support parents and carers and children or young people in any of the following areas:

• Preparing for and  attending meetings with schools, local authorities and other professionals
• We have a confidential telephone helpline, with answering service in case we are unable to answer your call first time. We aim to return all messages within 2 working days.
• Helping to write official letters and complete forms
• Explaining the meaning of official documents
• Assisting in the statutory assessment process
• Referral to the correct organisation or contact

We can provide advice on

• The Special Educational Needs (SEN) systems and processes
• SEN provision in schools
• The statutory assessment process
• Education and Health Care Plans
• Annual reviews
• Transitions
• Transport
• Specialist provision/support services
•  Appeals to the Special Educational Needs and Disability Tribunal (SENDIST)
•  Disagreement resolution services
•  Local policies
•  SEN code of practice

Any service provided by SENDIASS ensures complete confidentiality for each individual case, we only take direct referrals from parents/carers & children/young people, or from a professional on thier behalf. We only make contact with a parent/carer or child/young person if it has been agreed that we can do so, and we have a dedicated confidential enquiry line. We can and will liase with other professionals on your behalf, with prior written consent. Contact us to find out more about how you can get involved.

Contact:

Phone: 01803 207884 (inquiry line open 10am – 2pm Mon – Fri and 24 hour answerphone facility)

Email: sendiass@torbay.gov.uk

Sendiass Torbay | Torquay | Facebook

Website: Sendiass Torbay | Torbay

An Education, Health and Care (EHC) needs assessment is:

• a type of assessment process carried out by the Local Authority (LA).
• a holistic assessment of a child or young person’s Education, Health and Care needs.
• a process takes up to 20 weeks from start to finish

At the end of the EHC needs assessment the LA will decide:

• if your child or young person needs an Education, Health and Care plan (EHCP)
• or if your child or young person’s needs can be met within SEND Support through the Torbay SEND Support and Provision – Graduated Response without an EHCP

An Education, Health and Care (EHC) needs assessment may be required for children and young people with SEND aged 0 to 25 years who:

• Have severe and/or complex long term needs which affect everyday life.
• Require provision and resources which are above those normally available at their early years setting, school or college within SEND Support through the Torbay SEND Support and Provision – Graduated Response. 
• Require intensive and longer term help and support.
• Is making limited or no progress despite high levels of support and purposeful interventions.

The law states that if your child has or may have special needs and may need SEN provision to be made through an EHCP; the local authority must conduct an EHC needs assessment.

The SEND Code of Practice: a guide for health professionals also says that there must be a local area process for the early identification of children and young people with SEND. This is the Torbay early identification process agreed by Torbay Council and South Devon Foundation Trust.

What is a Section 23 notification?

Health professionals have a duty to tell the local authority if they believe a child under school age has, or is likely to have, special educational needs or a disability (SEND).

Usually, this notification is made by any Health professional, who must in the first instance:

• inform parents that they believe their child has (or is likely to have) SEND
• arrange for parents to discuss this opinion with appropriate health professionals
• inform parents that they have a duty to notify their child to the local authority
• advise parents of organisations that may be able to support them in relation to their child’s SEND

As part of the Section 23, Health professionals will share information about the named child. The local authority will respond to the notification, and act upon the shared information.

What is SEND?

What the SEND Code of Practice says:

“A child or young person has special educational needs if they have a learning difficulty or disability which calls for special educational provision to be made for them.”

SEND Code of Practice 2015, Introduction xiii

Special educational needs and disabilities (SEND) can affect a child or young person’s ability to learn. They can affect their:

• behaviour or ability to socialise, for example they struggle to make friends
• reading and writing, for example because they have dyslexia
• ability to understand things
• concentration levels, for example because they have ADHD
• physical ability

What is special educational provision?

• Special educational provision is the additional or different help given to children with special educational needs. For children under two years old any educational provision is special educational provision.
• Special educational provision takes many different forms. Most children with special educational needs have support in their class under SEN Support. It might be additional or different help provided in a mainstream class for a small group or an individual child. It can include group work or individual support that takes place outside the classroom. It could also be attendance in a specialist class or in a special school.
• In only a small number of cases, where a child/young person is experiencing particularly high levels of difficulty, and is unable to make adequate progress, will a statutory assessment be necessary.

Under what Law?

This duty is Section 23 of the Children and Families Act 2014 Children and Families Act 2014. Section 23 Duty of health bodies to bring certain children to local authority’s attention.

(1) This section applies where, in the course of exercising functions in relation to a child who is under compulsory school age, a clinical commissioning group, NHS trust or NHS foundation trust form the opinion that the child has (or probably has) special educational needs or a disability.

(2) The group or trust must —

(a) inform the child’s parent of their opinion and of their duty under subsection (3), and

(b) give the child’s parent an opportunity to discuss their opinion with an officer of the group or trust.

(3) The group or trust must then bring their opinion to the attention of the appropriate local authority in England.

(4) If the group or trust think a particular voluntary organisation is likely to be able to give the parent advice or assistance in connection with any special educational needs or disability the child may have, they must inform the parent of that.

Children & Families Act 2014, Section 23

What is the process:

• Health visitors, Paediatrics and GP’s will email earlyyearssend@torbay.gov.uk  and let the Local Education Authority know that there is a child or young person with SEND who meets the above criteria. There will be an acknowledgement of the notification.
• Health services will need to share that they have brought a child to the LA attention through Section 23 notification, paedsdictation.sdhct@nhs.net  for Paediatrics,  publichealthnursing.torbay@nhs.net Health Visitor contact. GP’s would need to email both emails.
• There will be signposting at this stage is necessary.
• Health visitors will send a Section 23 notification for children who score in the Black or multiple Grey areas (over 3 following a review) in the ASQ3/ELIM assessment.
• The information is gathered into a data base and discussed in a multi-agency forum quarterly. The interventions and support for children and its impact will be analysed and reviewed.

How this will help us as a partnership serve our children and young people?

• Data will be used to inform planning and support for children in Torbay.
• Pathways for support for children and young people will be discussed.
• The multi-agency (MA) group will meet quarterly to sign post to services at the right time, right place, right support. Names will be shared in advance of the meeting to ensure multi agency gathering of appropriate information.
• If there are a lack of services and support involved with the child the MA group will make contact to support

If, following a period of time at within SEND Support through the Torbay SEND Support and Provision – Graduated Response, your child or young person is still not making the expected progress the following people can ask for an Education, Health and Care (EHC) needs assessment:

• you (parent of a child)
• you (young person over the age of 16)
• or the school

It is always better if the education provider (pre-school, school, college etc.) makes the request as they are more able to ensure all the required information and evidence is contained within the request. However, parents and young people (over 16’s) are also able to make requests themselves directly to the Local Authority.

An EHC needs assessment must also be considered if your child or young person’s needs are brought to the attention of the Local Authority (LA) by someone else.

If you are considering making the request for an Education, Health and Care (EHC) needs assessment yourself, it is important to provide the Local Authority with as much possible Information, and evidence, for them to be able to properly consider your request.

Special Educational Needs and Disability Code of Practice: 0 to 25 years [2015] (section 9.14) includes a checklist of information required for the local authority to properly consider a request for an EHC needs assessment. The SEND Code of Practice is legal guidance about Special Educational Needs and Disabilities (SEND). Schools and local authorities must have regard to the Code when a child or young person is identified as having SEND.

You do not have to be able to provide all of this information yourself.

This checklist has been included to show you the information that the Local Authority will have to collect from your child’s school or other education setting (Appendix B) before they will be able to make an informed decision.

• Evidence of the child or young person’s academic attainment (or developmental milestones in younger children) and rate of progress
• Information about the nature, extent and context of the child or young person’s SEND
• Evidence of the action already being taken by the early years provider, school or post-16 institution to meet the child or young person’s SEND
• Evidence that where progress has been made, it has only been as the result of much additional intervention and support over and above that which is usually provided
• Evidence of the child or young person’s physical, emotional and social development and health needs, drawing on relevant evidence from clinicians and other health professionals and what has been done to meet these by other agencies, and
• Where a young person is aged over 18, the local authority must consider whether the young person requires additional time, in comparison to the majority of others of the same age who do not have special educational needs, to complete their education or training. Remaining in formal education or training should help young people to achieve education and training outcomes, building on what they have learned before and preparing them for adult life.

Regardless of who makes the request, both:

• educational providers (pre-school, school, college etc.), and
• parents/carers/young people,

will need to have submitted their views and evidence before the Local Authority makes a decision.

So, it may be useful for you to consider collecting evidence before submitting a request yourself or asking the education provider to submit a request.

Educational settings (Pre-schools, Schools and Colleges) are expected to have:

• properly identified your child or young person’s strengths and difficulties
• have followed the SEND Support and Provision – Graduated Response for at least 2/3 assess, plan, do, review cycles
• sought additional advice from other appropriate professionals (e.g. Educational Psychologist, Speech and Language Therapist etc.)
• acted upon additional advice received
• be able to evidence how they have differentiated the curriculum, provided quality teaching and additional targeted intervention though provision maps and SEND Support plan’s that have been reviewed and adapted over time to meet your child or young person’s specific needs

Children or young people eligible for an Education, Health and Care (EHC) needs assessment will:

• usually be getting SEND Support in their educational setting (Pre-school, School or College) and have been getting SEND Support for some time (at least 2/3 assess, plan, do, review cycles as described in SEND Support and Provision – Graduated Response)
• usually have had an assessment carried out by an Educational Psychologist to advise the educational setting what to include in the SEND Support provided to your child or young person
• often have been seen by other professionals for assessments (e.g. Speech and Language Therapist, Physiotherapist, Occupational Therapist etc.
• may have been assessed or received a diagnosis, following assessment, from a Paediatrician or other specialist

A request for an EHC needs assessment can be make using one of the following forms:

• Parents – RSA/App A – Parental request for the local authority to consider a statutory assessment of special educational needs
• Young People – RSA/App A and F – Young persons request for the local authority to consider a statutory assessment of special educational needs

Please remember that although you can simply submit a letter of request without supporting evidence, both you and the education provider (pre-school, school, college etc.) will be asked to submit the required information and evidence in advance of the Local Authority being able to make a considered decision.

You may also find it useful to look at:

• SEND Support and Provision – Graduated Response – Our Graduated Response toolkits are designed to support any child or young person where there is a concern about an additional need. The introductory document and five toolkits have been co-produced with parents and carers alongside our partners from health, education and social care.

Week 0 – The process begins when the Local Authority (LA) received a request for assessment of a child /young person or the child /young person is brought to the LAs attention.

Weeks 1 – 6 – Within the first 6 weeks the LA must decide whether to conduct an Education, Health and Care (EHC) needs assessment.

Regardless of who makes the request both:

• educational providers (pre-school, school, college etc.); and
• parents/carers/young people,

will be requested to submit their views and evidence in advance of that information being presented to the Education, Health and Care Needs Management Board (EHCNMB) multi-agency panel who make recommendations to assist the LA in making a decision on whether or not it is necessary to continue to undertake a full EHC needs assessment.

The LA must notify the parent / young person of their decision by week 6.

If the LA decide not to carry out an EHC needs assessment they must inform the parent / young person of their right of appeal.

Weeks 6 – 16 – Undertaking the assessment. During this time the LA is gathering the necessary information education (school, educational psychology), Health and social care. Where an LA requests co-operation of a body in securing information and advice, the body must comply within 6 weeks.

Week 16 – By week 16 the LA must decide whether an EHCP is needed and notify parents / young person.

If they decide an EHCP is needed the LA will send the draft EHCP alongside notification of their decision.

If the LA decide an EHCP is not required they must inform the parent / young person of their right of appeal.

Weeks 16 – 17 – Having received a draft EHCP parents / young person have 15 calendar days to:

• read the draft EHCP
• respond their agreement to the draft EHCP or comment on any changes they wish to be made.
• inform the LA of their preferred educational placement (nursery, school / college / other educational institution) they wish to be named on the final EHCP
• seek agreement if they are requesting a personal budget

Weeks 18 – 19 – The LA must consult governing body, principal, or proprietor of educational institution before naming them in the EHC plan. The institution should respond within 15 calendar days.

Week 20 – The final EHCP is issued naming the agreed educational placement (nursery, school / college / other educational institution).

The Local Authority (LA) must make a decision and let you know their decision within 6 weeks of receiving the request for an Education, Health and Care (EHC) needs assessment.

After all of the initial required evidence is received from you and your child or young person’s educational setting (Pre-school, School or College), the Local Authority (LA) will be able to make an informed decision.

All of this information is discussed at one of the weekly multi-agency Education, Health and Care needs Management Board (EHCMB) to support the LA in making an informed decision. The EHCMB is chaired by the LA’s Senior SEND officer, who is responsible for making the decision and consists of representatives from Educational Psychology, Advisory Teaching, SENCO’s, health and social care.

As soon as the LA has made thier decision they will inform both you and your child or young person’s educational setting (Pre-school, School or College) in writing. You will probably by by email and you may also be informed by phone.

You will be informed in writing if the Local Authority (LA) decide that it is not necessary to carry out an Education, Health and Care (EHC) needs assessment. You will probably be informed by email and you may also be informed by phone. This will happen within 6 weeks of the LA having received the request for an EHC needs assessment.

You will be invited to a “Next Steps” meeting, held by an LA SEND Officer to discuss how your child or young person’s needs will be met at SEND Support. These meetings are usually attended by you, someone who works with your child or your person in their educational setting (Pre-school, School or College) and often also any other professional involved in supporting your child or young person.

If you disagree with the LA decision, you will also have a right to mediation and right of appeal to the SEND tribunal.

You need to consider mediation and obtain a mediation certificate in advance of submitting an appeal to the SEND tribunal.

If the Local Authority (LA) decides to carry out an Education, Health and Care (EHC) needs assessment they will allocate a SEND Officer, who will be responsible for collecting all of the relevant information from education, health and care professionals.

This information will focus on:

• you and your child’s aspirations and views
• your child’s education, health and care needs
• the desired outcomes for your child
• the special educational, health and care provision that might be required to meet their needs and achieve the desired outcomes

The Local Authority (LA) must make a decision and let you know their decision within 16 weeks of receiving the request for an Education, Health and Care (EHC) needs assessment.

After all of the required evidence is received detailing your child /young persons aspirations, needs and the level of support (provision) required to meet the identified learning goals (outcomes), the LA will be able to make an informed decision.

After an Education, Health and Care needs assessment overview has been written it is discussed at one of the fortnightly multi-agency Education, Health and Care needs Management Board (EHCMB) meetings to support the LA in making an informed decision. The EHCMB is chaired by the LA’s Senior SEND officer, who is responsible for making the decision and consists of representatives from Educational Psychology, Advisory Teaching, SENCO’s, health and social care. The LA then decides whether your child or young person’s identified needs can be met at SEND Support without the need for an EHCP or if an EHCP is required.

As soon as the LA has made their decision they will inform both you and your child or young person’s educational setting (Pre-school, School or College) in writing by either issuing:

• an EHC needs assessment outcome, if the support required can be met at within SEND Support through the Torbay SEND Support and Provision – Graduated Response without the need for an EHCP
• Or a draft EHCP

You will probably by by email and you may also be informed by phone. In either case the LA will also provide you with copies of all of the reports used within the EHC needs assessment upon which the LA decision was made.

Working Together – Torbay SEND – 20 week process

Within the first 6 weeks of receiving a request for an Education, Health and Care (EHC) needs assessment, evidence included in the request for each child/young person is presented to the Education, Health and Care Needs Management Board (EHCNMB), multi-agency panel, who make recommendations to assist the LA in making a decision on whether or not it is necessary to continue to undertake a full EHC needs assessment.

By week 6 after receiving a request for an EHC needs assessment, the allocated SEND Officer contacts the parent/carer, by email or phone, to either:

• inform them if the decision is not to undertake and EHC needs assessment
• or gain the parent/carer and child/young people’s views and aspirations, if the decision is that the EHC needs assessment will be going ahead.

Between weeks 6 and 11 the Torbay SEND are collecting all of the information necessary to make an assessment of need. Health will need to provide us with information about your child/young person’s level of need. You may be offered an appointment from a health colleague, this is very important for our assessment so we need you to attend. Children’s Services will also need to provide us with information about your child/young person’s level of need. If you are not known to a social worker or social work team then you will be offered an assessment via a phone call. If appendices are more than 2 weeks late the SEND team will phone you to let you know which professionals have responded to SEND by sending Appendices (their assessment of your child/young person’s needs).

From week 11 onwards after having received all of the relevant information from other professionals the SEND Officer will create an Education, Health and Care needs assessment overview, prior to presenting it to the Education, Health and Care Needs Management Board (EHCNMB), multi-agency panel, who make recommendations to assist the LA in making a final decision on whether or not an Education, Health and Care plan (EHCP) will be issued.

By week 16 after receiving the request for an EHC needs assessment, parents/carers and young people will either be sent:

• an EHC needs assessment outcome and be invited to a “Next Steps” meeting, if the decision is not to issue an EHCP
• or the draft EHCP, if the decision is that an EHCP will be issued. This is to give parents/carers the chance to read it and respond with any changes they wish to be made. Parents/carers or the young person also get the opportunity to name the nursery/school or college of their preference alongside making any comments in relation to the draft EHCP.

Between weeks 17 and 19 the SEND team are in consultation with the nursery/school or college.

By week 20 after receiving the request for an EHC needs assessment, the EHCP is finalised naming the agreed provision (nursery/school or college).

You will be informed in writing if the Local Authority (LA) decide that it is not necessary to issue an Education, Health and Care plan (EHCP). You will probably be informed by email and you may also be informed by phone. This will happen within 16 weeks of the LA having received the request for an EHC needs assessment.

You will be invited to a “Next Steps” meeting, held by an LA SEND Officer to discuss how your child or young person’s needs will be met at SEND Support. These meetings are usually attended by you, someone who works with your child or your person in their educational setting (Pre-school, School or College) and often also any other professional involved in supporting your child or young person.

If you disagree with the LA decision, you will also have a right to mediation and right of appeal to the SEND tribunal.

You need to consider mediation and obtain a mediation certificate in advance of submitting an appeal to the SEND tribunal.

When you receive the draft Education, Health and Care plan (EHCP) you will also have been sent a form (A2) to complete and return. The A2 form asks:

• whether or not you agree with the contents of the EHCP
• for you to let the LA know what school you would like to be named on the final EHCP

You need to complete and return this form within 15 calendar days.

The draft EHCP is not allowed to have the name of a school in it, but this does not mean you have to choose a different school to the one currently attended by your child or young person.

You can ask for a meeting to be arranged if you want to talk to the LA about:

• changes you might want to be made to the contents of the EHCP
• the school that might like to be named

To get a better understanding about naming a school you might want to look at Choosing and naming a school (or setting) in an Education, Health and Care (EHC) plan

The LA then has to consult the school you want to be named before deciding whether or not they can name that school on the final EHCP.

If you have received a draft EHCP you need to complete and return the form that you were sent alongside the draft EHCP within 15 calendar days.

The form asks:

• whether or not you agree with the contents of the EHCP
• for you to let the LA know what school you would like to be named on the final EHCP. Please see Choosing and naming a school (or setting) in an EHCP for more information.

You might find this checklist created by (IPSEA) Independent Provider of Special Education Advice useful when checking the contents of the draft EHCP.

The final EHCP should be issued within 20 weeks of the request for an EHC needs assessment. But, there are some allowances for this to be delayed, especially if you have asked for more time to respond to the draft EHCP and/or the Torbay SEND team are working with you to get the final agreed contents right.

The final EHCP will be sent to you and the school named in the EHCP. The final EHCP will most probably be sent to you by email.

If you do not agree with the contents of the final EHCP you can discuss this with a member of the Torbay SEND team on 01803 208274.

If you are unhappy with the contents of the final EHCP after it has been issued, you have the right to:

• Ask SENDIASS Torbay for independent information, advice and support. Phone: 01803 207884 (inquiry line open 10am – 2pm Mon – Fri and 24 hour answerphone facility), Email: sendiass@torbay.gov.uk – Sendiass Torbay | Torquay | Facebook
• Contact national organizations for advice
• Use the disagreement resolution and mediation service
• Appeal to the First-tier Tribunal (SEN and Disability)

Please be aware that there are time limits to your right of appeal. For more information please see SEND Mediation and Tribunal Appeals.

Within 3 months of the final EHCP having been issued, your child or young person’s school should establish and record their short-term targets and incorporate them into your child or young person’s individual learning plan. This will be explained further and discussed with you at a meeting set up by your child or young person’s school. This will then be monitored, evaluated and amended accordingly at least twice a year.

You and your child or young person should be involved in setting targets and monitoring them. Some schools will include this in parent’s evening meetings to discuss your child or young person’s progress and some schools will set up separate meeting for this.

The EHCP will also be formally reviewed at least once every 12 months in the Annual Review process. For more information, please see Annual Review of an EHCP.

An Education, Health and Care (EHC) needs assessment (EHCNA) is a statutory assessment is a process where information is collected from the parents, child or young person and professionals. This then allows us to gain a clear picture of the education, health and care needs of the child or young person. Depending upon the level of needs and provision required identified through the EHCNA this may result in an Education, Health and Care plan (EHCP) being issued for a child or young person.

EHCNA requests, also known as Requests for Statutory Assessment (RSAs) for parents to use:

• Parents – RSA/App A – Parental request for the local authority to consider a statutory assessment of special educational needs
• Views of the child or young person – App F including One Page Profile – Views of the child / young person for EHC assessement.
• Views of the young person – YP’s questionaire template/alternative App F – Views of the child / young person for EHC assessement.

When submitting a request for assessment for your child it is best to include both the your application, using the “Parents – RSA/AppA” form above, and your child’s views, if primary aged, using the “Views of the child or young person – App F including One Page Profile” form above, or your young person’s views, if secondary or above aged, using the “Views of the young person – YPs questionaire/alternative App F” form above. You may also find it useful to refer to Views of child or young person – Person Centred Tools.

EHCNA requests, also known as Requests for Statutory Assessment (RSAs) for young people, aged 16 and above, to use:

The law says that if your young person is age 16 or above, it is up to them whether or not they wish to request an assessment for an EHCP. Providing you have consent from your young person, parents are also allowed to submit a request for assessment on their behalf.

• Young People – RSA/App A and F – Young persons request for the local authority to consider a statutory assessment of special educational needs
• Parents – RSA/App A – Parental request for the local authority to consider a statutory assessment of special educational needs
• Views of the young person – YP’s questionaire template/alternative App F – Views of the child / young person for EHC assessement.

When a young person submitts a request for assessment, they should use the “Young People – RSA/App A and F” form above. If you are the parent of a young person, and your young person has consented for you to also provide additional information or submit a request on their behalf you may also want to submit the “Parental – RSA/AppA” form above accompanied by the “Views of the young person – YP’s questionaire template/alternative App F” form above, unless your young person has also submitted the “Young People – RSA/App A and F” form above. You may also find it useful to refer to Views of child or young person – Person Centred Tools.

An Education, Health and Care (EHC) needs assessment (EHCNA) is a statutory assessment is a process where information is collected from the parents, child or young person and professionals. This then allows us to gain a clear picture of the education, health and care needs of the child or young person. Depending upon the level of needs and provision required identified through the EHCNA this may result in an Education, Health and Care plan (EHCP) being issued for a child or young person.

EHCNA requests, also known as Requests for Statutory Assessment (RSAs) for schools and other educational settings:

• Early Years settings – RSA/AppB – Request from Early Years setting for the LA to consider statutory assessment
• Educational settings – RSA/AppB – Request from educational setting (for primary aged children) for the LA to consider statutory assessment
• School or College with PFA – App B RSA – Request from educational setting (for secondary and above aged children and young people) including Preparing for Adulthood section for the LA to consider statutory assessment
• Views of the child or young person – App F including One Page Profile – Views of the child / young person for EHC assessement.
• Views of the young person – YP’s questionaire template – Views of the child / young person for EHC assessement.

You may also find it useful to refer to Views of child or young person – Person Centred Tools.

Related information and guidance:

• Education setting Guidance with PFA – App B/RSA – Guidance on completing the educational settings RSA/App B
• PFA Prompt Sheet years 9 to 11 – Preparing for adulthood prompt sheet for years 9 to 11
  PFA Exemplar for years 9 to 11 – Desired long term outcomes to start considering preparing for adult hood outcomes
• PFA Prompt Sheet post 16 years – Preparing for adulthood prompt sheet post 16 years old
• Personal Budgets for SEN – Quick Guide – This is a quick guide for families who are interested in finding out more about the Personal Budgets for Special Educational Needs (SEN)
  

It is important that the views of children or young people are collected when requests for Education, Health and Care needs assessments (EHCNA) are made and when conducting Annual Reviews for children or young people who have an Education, Health and Care plan (EHCP).

Forms and guidance for submitting views of the child or young person:

• Views of the child or young person – App F including One Page Profile – Views of the child / young person for EHC assessement.
• Download the One Page Profile template (symbols version)
• Download the One Page Profile template
• Download the One Page Profile guidance notes
• Views of the young person – YP’s questionaire template – Views of the child / young person for EHC assessement.

The following tools are available to support the collection of the child or young person’s views:

• Important to / for – Information on the fundamental person-centred thinking skill
• Relationship Circle – Information on relationship circle which can be used as a visual summary of who is important in the pupils life.
• Good Day / Bad Day – Information on this person-centred thinking tool
• What’s working / what’s not working – Information on developing outcomes and actions
• Views of the young person – YP’s questionaire template – Views of the child / young person for EHC assessement.

Other useful Template Worksheets:

• Sheffield City Council – Communi-CRATE Worksheets
• Sheffield City Council – One Page Profile Templates

Education, Health and Care plans (EHCPs) must be reviewed at least annually to ensure that the parents, the pupil, us, the school and all the professionals involved with the child or young person monitor and evaluate the continued effectiveness and relevance of the provision set out in the EHCP.

Schools and other educational settings usually involved within the Annual Review process by holding an Annual Review meeting and providing the Local Authority (LA) with the relevant paperwork, which the LA then use to decide whether the EHCP needs to be maintianed (stay the same), be amemnded (updated to reflect changes), or ceased (ended as it is no longer needed).

These are the relevant forms and guidance for schools and other educational settings to use:

• Download the Annual Review form
• Download the Post 16 Annual Review Form (Yr 11 onwards)
• Download the Post 16 Annual Review Guidance (Yr 11 onwards)
• Download the Preparing for Adulthood prompt sheet (Yr 9 – Yr 11)
• Download the Preparing for Adulthood Skills Audit to accompany post 16 Annual review
• Download the professionals contribution to reviews form
• Download the One Page Profile template (symbols version)
• Download the One Page Profile template
• Download the One Page Profile guidance notes – You may also find it useful to refer to Views of child or young person – Person Centred Tools.
• Download additional funding application form
• Download educational personal budget funding application
• Download annual review – Personal budgets overview form
• Download the Special Educational Provision (SEP) referral form
• Download In Year requests for change of school form

Annual Review information and planning guides:

• Annual review meetings – Parents information sheet
• Early Years Transition Guide – Preparing for Primary Phase/Transfer – A guide for schools, parents and carers to prepare for an Early Years transition review
• Year 5/6 Transition Guide – Preparing for Secondary Phase/Transfer – A guide for schools, parents and carers to prepare for a year 5 transition review
• Year 9 Transition Guide – Preparing for Adulthood – A guide for schools, parents and carers to prepare for a year 9 transition review
• Year 11 Transition Guide – Preparing for Adulthood – A guide for schools, parents and carers to prepare for a year 11 transition review
• Personal Budgets for SEN – Quick Guide – This is a quick guide for families who are interested in finding out more about the Personal Budgets for Special Educational Needs (SEN)
• Annual Review Timeline for Schools – Annual review regarding key actions, legal compliance and best practice

An Annual Review is the legally required process for monitoring the effectiveness of an Education, Health and Care plan (EHCP).

If your child or young person has an EHCP, the Local Authority (LA) must review the EHCP at least once a year based on evidence received. For children under five, a review may take place every six months.

It is the school’s responsibility to arrange the Annual Review meeting. Parents can request that the school, pre-school setting or college hold an early or interim Annual Review if they have significant concerns. The majority of evidence will be taken from the report created as a result of an Annual Review meeting.

If your child isn’t on roll at a school, a review must still happen. The local authority is responsible for making sure it does. This might be if you are electively educating your child at home, or if your child isn’t able to be in school for health or other reasons.

At this review meeting your child or young person’s progress will be discussed to ensure the EHCP continues to meet his/her aspirations, goals and needs. If your child or young person’s needs change significantly, anyone raises serious concern about your child or young person’s progress or suggests a change in provision may be required to meet your child concern the Annual Review may be brought forward.

The Annual Review process ends when the LA have informed you of their decision, taking the annual review meeting into account, to either:

• maintain the EHCP in its current form with no changes
• amend the EHCP to reflect changes in needs, provision, or placement
• cease the EHCP as it is no longer required

This video has been created by local Children and Young People.

This is one of a series of 3 videos to help children, young people and their families understand more about Education, Health and Care plans (EHCPs). The other 2 videos in this series are:

• What is an Education, Health and Care Plan? (video for Children & Young People) – Family Hub (torbayfamilyhub.org.uk)
• What is a phase transfer (video for Children & Young People) – Family Hub (torbayfamilyhub.org.uk)

The purpose of these meetings is to review your child or young person’s EHCP by:

• Bringing together the views of everybody involved with your child or young person’s education. This generally includes you (where your child is under the age of 16 or your young person is age 16 or over and has requested for you to be invited), your child or young person and all those involved in helping your child or young person
• Reviewing the progress your child or young person has made in all areas
• Reviewing the special provision made for your child or young person
• Ensuring that targets set previously are being achieved and to set new targets for the next year
• Recommending amendments to the EHCP. The LA will only amend your child’s EHCP if there is a major change to your child or young person’s needs i.e. a medical diagnosis.
• Considering whether all your child or young person’s goals have been met and whether the EHCP is still required

Please be aware that there is no legal requirement for you to be invited or involved if your young person is aged 16 or over unless they have asked for you to be invited or involved. This is because the Children and Families Act 2014, parental rights under the law in relation to the young person’s education automatically pass to the young person once they reach the end of compulsory school age, being the last Friday of June in the year the child turns 16.

When arranging an Annual Review of a child or young person’s EHCP, your child or young person’s head teacher or principle, or the Local Authority (if a child or young person who is not in a school) must invite:

• You – providing your child is under the age of 16 or your young person is age 16 or over and has requested for you to be invited – parent’s/carer’s views are very important and you can discuss what your child is like at home, how he/she manages homework, friends, family [n.b You are also allowed to bring someone with you for support if you wish (ie. friend, relative or other support from SENDIASS or similar)]
• Your child or young person
• A relevant teacher
• A representative from the LA
• The child or young person’s Social Worker if appropriate
• Anyone else considered appropriate

Please be aware that there is no legal requirement for you to be invited or involved if your young person is aged 16 or over unless they have asked for you to be invited or involved. This is because the Children and Families Act 2014, parental rights under the law in relation to the young person’s education automatically pass to the young person once they reach the end of compulsory school age, being the last Friday of June in the year the child turns 16.

If there is anyone else you feel should be invited (i.e.. private therapists involved in child’s care) you will have to tell your child or young person’s school or college you would like to be invited.

It is unlikely that everyone invited will be able to attend the review meeting. The head teacher or principle will try to ensure that the date of the meeting is convenient for you and for those people who have had most contact with your child.

Before the Annual Review meeting of a child or young person’s EHCP, head teacher or principle of your child or young person’s school or Local Authority (LA)(if your child or young person is not in a school) must ask for written reports from: 

• You – providing your child is under the age of 16 or your young person is age 16 or over and has requested for you to be invited or involved – parent’s/carer’s views are very important
• Your child or young person
• Your child’s teachers
• All others invited to the review meeting.

Please be aware that there is no legal requirement for you to be invited or involved if your young person is aged 16 or over unless they have asked for you to be invited or involved. This is because the Children and Families Act 2014, parental rights under the law in relation to the young person’s education automatically pass to the young person once they reach the end of compulsory school age, being the last Friday of June in the year the child turns 16.

The head teacher, or SENDO acting on behalf of the head teacher, or LA must then:

• Send copies of the written reports to all those invited to the review meeting at least 2 weeks before it takes place.
• Invite further views, including comments from those who are unable to attend the meeting.
• If there is anyone else you feel should contribute (i.e. private therapists involved in child’s care) their reports can be included even if they are not invited or cannot attend the review.

Pupils should be encouraged to give their views in the Annual Review process of their EHCP.

The Children & Families Act puts great emphasis on ensuring the child or young person’s views aspirations and goals are central to the whole process. Wherever possible your child or young person should attend all or part of the Annual Review meeting.

You may wish to talk to the school about your child or young person’s involvement in the review process.

You may also find it useful to download and use materials to record Children and young person’s views from EHCP related forms and guidance to complete with your child or young person in advance of the meeting.

When a parent or carer has chosen to write a report to contribute to the Annual Review of their child or young person’s EHCP, it is always a good idea to include your comments on:

• Your child or young person’s progress over the last year
• What you are happy about and also any concerns
• What you feel your child or young person’s needs will be in school or college for the coming year
• What you think you and the school or college can do to help meet those needs
• Your child or young person’s aspiration and views about school
• You may also like to include some information about how you feel your child or young person is coping both at school or college and at home

You may find it useful to look at or use the Forms for schools and other educational setting to use when carrying out the Annual Review of an EHCP templates found within EHCP related forms and guidance as a guide to help you cover all special needs/areas that will have to be considered in the meeting.

The Annual Review meeting of a child or young person’s EHCP will normally include the following:

• The views of everyone attending the meeting or involved with your child or young person about your child or young person’s past year’s progress
• Your child or young person’s views, aspirations and goals
• The extent to which the objectives in the EHCP, or those agreed at the previous annual review, have been met
• Objectives for the next year
• Planning the support from school or college and parents to help achieve these objectives
• Any further action required and who will be responsible for this (For reviews taking place when your child is in Yr 5 this will include discussions about secondary transfer and Yr 9 onwards will include post-16 transition, but remember Schools and Educational Psychologist’s (EP’s) cannot allocate places the decision rests with the Local Authority (LA))
• Whether the EHCP needs amending or is no longer needed

You may also discuss how your child or young person is coping in general and what can be done to help.

After the Annual review meeting of a child or young person’s EHCP, the school or college prepares a report summarising the results of the review meeting and setting out objectives for the following year. This should be completed within 10 working days. The report must be sent to all those involved in the review. The Local Authority (LA) must then:

• Review the EHCP in light of the report
• Decide whether to accept the head teacher or college recommendations
• Tell you, the head teacher or college and anyone else they think appropriate

The LA Torbay SEND team must notify you of their decision of whether they will be maintaining, andmding or ceasing your child or young person’s EHCP within 4 weeks of the Annual Review meeting. 

• If the LA agrees to maintain the EHCP with no changes the EHC Plan will continue
• If the LA proposes to amend the EHCP they will let you know in writing. They will then amend the EHCP as soon as possible and send you a draft of the amended EHCP. You will then have 15 days to consider these proposed changes and let the LA know if you agree to these changes and your choice of school. If you agree, following relevant consultation to ensure your chosen school also agree, the LA will produce an amended final EHCP.
• If the LA proposes to cease the EHCP they will let you know in writing. This will most probably be by email.

If you do not agree with the changes you can discuss this with a member of the Torbay SEND team on 01803 208274.

If you still cannot agree, you have the right to:

• Ask SENDIASS Torbay for independent information, advice and support. Phone: 01803 207884 (inquiry line open 10am – 2pm Mon – Fri and 24 hour answerphone facility). Email: sendiass@torbay.gov.uk – Sendiass Torbay | Torquay | Facebook
• Contact national organizations for advice
• Use the disagreement resolution and mediation service
• Appeal to the First-tier Tribunal (SEN and Disability)

Please be aware that there are time limits to your right of appeal. For more information please see SEND Mediation and Tribunal Appeals.

This video has been created by local Children and Young People.

This is one of a series of 3 videos to help children, young people and their families understand more about Education, Health and Care plans (EHCPs). The other 2 videos in this series are:

• What is an Education, Health and Care Plan? (video for Children & Young People) – Family Hub (torbayfamilyhub.org.uk)
• What Happens In My Annual Review (video for Children & Young People) – Family Hub (torbayfamilyhub.org.uk)

Upon receipt of a draft EHCP, a parent or young person has a right to request the school they want to be named in the final EHCP.

A draft EHCP is issued either:

• as the result of an EHC needs assessment where the local authority has decided an EHCP is required
• or when an EHCP is amended following an Annual Review

In both of these situations a parent or young person has a right to request that any of the following types of school or other institution are named in Section I of the EHCP:

• a maintained nursery
• a maintained school, academy or free school (mainstream or special)
• a non-maintained special school
• an FE or sixth form college, or
• an institution (independent school or independent specialist college) approved by the Secretary of State under s.41 Children & Families Act 2014.

s.38(3) Children & Families Act 2014

Often parents do not wish their child/young person to change school when they get an EHCP or their EHCP is amended. There is nothing preventing a parent from requesting for the mainstream school the child/young person is currently attending.

If you are considering requesting a different school to the one your child/young person currently attends to be named on their EHCP, you may find our Checklist for Visiting Schools useful.

After receiving a request for any of these types of schools/settings the Local Authority has a duty to consult the governing body before that school/setting can be named.

Unless there is a legally valid reason then the requested school/setting must be named on the EHCP.

In the event of a parent or young person not having made a request or representation for a particular school/setting within the specified period of notice the local authority must still always name an educational provision when issuing the final EHCP.
9.88 SEND Code of Practice 2015

This means that if you do not inform the Local Authority (LA) of your preferred school the LA will choose a school for your child to attend. The LAs choice of school will most likely be the closest mainstream school to your home address.

The law says a child or young person with an EHCP must be educated in a mainstream school or post-16 institution unless:

• parent or young person does not wish it, or
• it would be incompatible with the provision of efficient education of other children and no reasonable steps can be taken to prevent this.

s.33(2) C&FA 2014

This means that a mainstream school cannot say the child/young person’s needs are too great to be included in mainstream. Mainstream is or can and must be made suitable for all children unless that results in incompatibility with the education of others.

Whether or not the parent or young person has made a request for a particular school/setting, before a school/setting can be named on an EHCP the Local Authority (LA) must consult the governing body.

The school/setting should respond within 15 calendar days (9.83 SEND Code of Practice 2015)

If the school or other institution is maintained by another LA, that LA must also be consulted, although, the final decision rests with the home LA.

The LA must proceed to make a decision (even in the absence of a response from the school or other institution within 15 calendar days) and issue the final EHCP:

• within 20 weeks of receiving the request to carry out an EHC needs assessment or of the LA becoming responsible
• within 8 weeks of issuing a draft amended EHCP following an Annual Review

Where a parent wants a place at an independent school (e.g. wholly independent nurseries, schools, colleges etc.) to be named on a child or young persons EHCP, they cannot make a request/state a preference. What they can do is make their views and wishes known by ‘making representations’ for that placement, and the LA must consider their wishes. But, there is no corresponding duty on the local authority to name such an institution in the EHCP or for that institution to be under a duty to admit the child or young person.
9.84 SEND Code of Practice 2015

Consent from the Governing body, proprietor or principal of the Independent school is required in order for an LA or the SEND tribunal to consider naming the school.

No

Whenever parents, or young people, ask for a particular school to be named in an EHCP the Local Authority (LA) must consult with the school first. If the school responds that it does not feel able to support the child/young person, then the local authority could still name that school. The LA has overriding power to name a school in an EHCP regardless of the school’s representations.

The LA will only be able to reject a request if a valid legal reason applies.

If a child’s parent or a young person makes a request for a particular nursery, school or post-16 institution, of a type described in s.38(3) C&FA 2014 above in “Requesting a particular school/setting“, the local authority must comply with that preference and name the school or college in the EHCP unless:

• The school or other institution is unsuitable for the age, ability aptitude or special education needs of the child or young person.
• The attendance of the child or young person would be incompatible with the provision of efficient education for others.
• The attendance of the child or young person would be incompatible with the efficient use of resources.

s.39(4) Children & Families Act 2014

This is one of the three legal tests that may apply when naming a school on an EHCP.

This legal test requires consideration of the special educational needs and/or disability (SEND) and the special educational provision required to meet the needs of the child or young person in question on an individual basis.

A school will be unsuitable if:

• It does not cater for the age of the child/young person – for example you ask for a primary school when the child is secondary school age or vise versa
• It is not designated to cater for your child/young person’s or disability (SEND) – for example you ask for a school for children/young people with a severe learning difficulty when your child/young person moderate learning difficulty or vise versa

This test does not apply to the right to mainstream education, as mainstream is or can and must be made suitable for all children, unless that results in incompatibility with the education of others. But it may apply to a particular mainstream school if:

• the school has allowable aptitude tests – for example is you asked for a Grammar school and your child/young person had not passed their 11+
• the school has not already been equipped with facilities or adaptations to meet the needs presented by a particular type of SEN or disability – for example you have a child with a hearing impairment and the particular school you have asked for does not have the required hearing aid loops

In these situations, you will be requested to choose an alternative mainstream school.

This is one of the three legal tests that may apply when naming a school on an EHCP.

This legal test requires it being clearly proven that the impact of the child or young person attending the school or other institution would result in an incompatibility which cannot be reasonably resolved.

This test requires identification of:

• concrete facts of what it is about the child/young person’s presence that would prevent the efficient education of others;
• the ‘others’ whose education would be rendered inefficient; and
• proof that all possible reasonable steps have been fully considered and found to be incapable of removing these barriers. (whether taking the step would be effective in removing the incompatibility, including:
• the extent to which it is practical for the early years provider, school, college or local authority to take the step;
• the extent to which steps have already been taken in relation to a particular child or young person and their effectiveness;
• the financial and other resource implications of taking the step; and
• the extent of any disruption that taking the step would cause

9.91 SEND CoP 2015

This is one of the three legal tests that may apply when naming a school on an EHCP.

This legal test requires a comparison of costs also taking into account the benefits of one provision over another.

Parents are allowed to choose to make their own arrangements for their child/young person’s education under s.7 Education Act 1996. This includes choosing to electively home educate their child/young person.

Where a parent chooses to elective home educate Local Authority (LA) are not obliged to fund Special Educational Provision as long as parent has made ‘suitable alternative arrangements’ which need not be the same as what was set out in any EHCP produced by the LA, but they must still be “suitable”

LA must review the EHCP annually, through an Annual Review, to ensure provision is appropriate.

The Local Authority (LA) has a power (not an obligation) to arrange for special educational provision for a child or young person with SEND to be made otherwise than at a school or institution only where education in a school or institution would be inappropriate.
s.61 CFA 2014

Whether or not it is appropriate will depend upon the individual facts of the case. The LA will consider:

• the child/young person’s background and medical history
• the particular special educational needs of the child
• facilities that can be provided by a school/institution and otherwise than at a school/institution
• the comparative costs of alternative provisions
• child’s reaction to education provisions, either at a school or elsewhere;
• parents’ wishes; and
• any other particular circumstances that might apply.

(TM v London Borough of Hounslow [2009] EWCA Civ859)

If the final EHCP does not name the school/setting of your choice, parents and young people have a right to:

• independent SEND Information, Advice and Support Service – Sendiass Torbay. Phone: 01803 207884 (inquiry line open 10am – 2pm Mon – Fri and 24 hour answerphone facility). Email: sendiass@torbay.gov.uk – Sendiass Torbay | Torquay | Facebook
• independent mediation – Global Mediation
• appeal to the SEND Tribunal – SEND Tribunal – HM Courts and Tribunal Service – Special Educational Needs and Disabilities (SEND) 

You must register you appeal with the SEND Tribunal within 2 months from the date of your decision letter from the Local Authority or 1 month from the date you obtain a mediation certificate, whichever is the later.

You do not need to have a mediation certificate if the only thing you are appealing about is the name of school (section I). But if you are also appealing about any other content of the EHCP a mediation certificate is required.

A personal budget is an amount of money identified to deliver provision set out in an Education, Health and Care plan (EHCP) where the parent or young person is involved in securing that provision. This must be agreed by the local authority for education and care support, and by the health authority for the health provision.

Personal Budgets are optional for the child’s parent or the young person but local authorities are under a duty to consider a personal budget when requested. Personal budgets are typically provided where universal or targeted provision is not available to meet the child or young person’s needs. 

The child’s parent or the young person can either request the personal budget as a direct payment (while still choosing how their care needs are met and by whom) or leave the Council with the responsibility to buy the services on their behalf.  People can also choose to go with a combination of the two.  As a result, personal budgets provide a potentially good option for people who do not want to take on the responsibilities of a direct payment. 

If you have an EHCP and wish to find out more, please contact Torbay SEND team.

Direct Payments are payments given to individuals to pay for care/support services which they have been assessed as needing; the intention is to give them greater choice and control in their care services. The payments must only be spent on the services identified in their support plan. 

Please see Direct Payments – Torbay Council for further information on direct payments.

A personal health budget is an amount of money allocated to support the identified healthcare and wellbeing needs of an child who has been assessed by health and is eligible for Children’s Continuing Care (CCC).  

Children’s Health often contributes to personal budgets in the form direct payments which are set up and managed by the Children’s Disability Service. Services include personal assistants and domiciliary care to support medical needs and to arrange transport.

The right to have a personal health budget applies to people who are:

• adults receiving NHS continuing healthcare (NHS-funded long-term health and personal care provided outside hospital)
• children receiving NHS continuing healthcare
• people who are referred and meet the eligibility criteria of their local wheelchair service and people who are already registered with the wheelchair service when they need a new wheelchair or specialist buggy, either because of a change in clinical needs or the condition of the current chair. These people will be eligible for a personal wheelchair budget.
• people with mental health problems who are eligible for section 117 after-care as a result of being detained under certain sections of the Mental Health Act (this does not include detention under section 2 of the Act).

If you are not in a group that has a right to a personal health budget, but you are interested in receiving one, speak to your local integrated care board (ICB). ICBs make the arrangements for personal health budgets and are encouraged to offer them to other patient groups.

For further information please see:

• What is a personal health budget? – NHS (www.nhs.uk)
• NHS England » Personal health budgets for children, young people and families

Personal budgets for Education have only been an option since April 2014. A personal budget for Education can only be agreed to meet provision detailed in section F of an EHCP. Elements of the ‘top up’ funding that schools/education settings receive for a child or young person with SEND may be able to be made available as a personal budget to allow parents to secure alternative support services. 

This cannot usually be used to pay for services where the local authority has a block contract in place with a service provider and cannot be used to pay for a school place.

In exceptional circumstances, there may be scope to agree release of further SEND funding from a school/education setting budget, but only with the agreement of the Head Teacher/Principal who would consider the impact on services for the majority of SEND pupils/students.

Requests for a personal budget can only be made:

• at the draft EHCP stage, where the result of an EHC needs assessment is that an EHCP is required and will be issued
• at an annual review of an EHCP

For further information, please refer to:

• Personal Budgets for SEN – Quick Guide
• Personal SEN Budgets in Torbay – Self Assessment Storyboard – updated Feb 2019 

All cases will be considered individually and it is important to note that what may be an appropriate use of funding to support a child/young person to meet their agreed outcomes, as outlined in the Education, Health and Care Plan (EHCP), may not be suitable for another child/young person with a different set of needs.

Young people/parents who wish to consider having a personal budget to arrange SEND support services should contact Torbay SEND team, to discuss this further.

All families of children or young people are told about the option for a Personal Budget when an EHC needs assessment is being caried out. If they express an interest in having a personal budget their allocated SEND Officer in the Torbay SEND team will explore the option of accessing parts of the element 3 ‘top up’ funding as a personal budget and to discuss with their child’s schools any possibilities for the school or college releasing funding to also be used as a personal budget’, to meet the needs of the child/young person.

You are not able to use a personal education budget to pay for:

• anything that is not identified in the EHCP
• health and social care provision that will not achieve the educational outcomes in the EHCP
• any provision that an education setting would normally provide a student
• a school or post 16 placement.  

Social Care in Children’s and Adults’ services offer personal budgets in Torbay for a range of short break services, including leisure activities, sitters, personal assistants, domiciliary care, domestic services, overnight stays and equipment.

Please see:

• What are Short Breaks? for more information, including eligibility criteria for Short Breaks funded by Children’s Social Care.
• Or, Personal budgets and direct payments for more information about Adult Health and Social Care

A social care personal budget will look at needs that have been assessed as needing extra support at home or in their community. 

A social care assessment would be carried by a social worker who will assess your child or young person and then decide whether a personal budget is available to meet any or all of the needs identified. If your child is eligible the social care provision will be recorded in in sections H1 &/or H2 of their EHCP and the personal budget will be recorded in section J of the EHCP.

Sometimes problems can arise from a misunderstanding which can easily be clarified by talking to the right person.

Many disagreements can be sorted out by talking to the teacher, Special Educational Needs Co-ordinator (SENCo), headteacher or Special Educational Needs (SEN) Governor at your child’s early year’s provider, school, or young persons college or a relevant officer or manager at the local authority, or for health services the nurse, GP, therapist, consultant etc. or Integrated Care Board (ICB). 

Before arranging a meeting directly with the person or organisation it may be useful for you to make some notes about:

• The main issue/s

What went wrong?

• anything the school, the local authority or health did that you are unhappy about
• anything the school, the local authority or health should have done but didn’t

You may have several issues. Try to list them separately. Write down details of any particular incidents.

• Your child / young person.

How the problem has affected your child /young person:

• Educationally?
• Physically?
• Socially?
• Emotionally?
• Previous meetings

Has there already been contact between you and the school, the local authority or health on this issue.

• Was there any agreement?
• What you want to happen now

This might be:

• an action by the school, the local authority or health
• an apology
• an assurance that it won’t happen again
• a review of policies

If you’re worried about child’s additional support for learning in their early years setting, school or college, talk to your child’s teacher, Special Educational Needs Coordinator (SENCO) or the head teacher.

If you’re concerned about the help that your child has at school and you think the setting is doing all it can, you can ask us for an Education, Health and Care (EHC) needs assessment.

You may also wish to contact SENDIASS Torbay for help at this stage. Supportive Parents are impartial professionals who can explain the processes and support you through it by:

• listening to your concerns
• helping you deal with issues
• identifying other people who can support you
• helping you decide what to do next
• explaining the law and your rights

Many parents find it daunting even going to an informal meeting. Here are some ideas that may help. Remember that at this point the priority is to share your concerns and explore possible ways forward.

• Be prepared – have a written list of your points. It may help to give a copy at the beginning of the meeting.
• Be tactful – think carefully about how you put your points across.
• Listen carefully to what the school, the local authority or health says and try to see both sides of the situation.
• Be open minded but don’t be fobbed off if you feel your complaint isn’t being taken seriously.
• Take someone with you to support you and to take notes.
• Tick off the points on your list as you go along to make sure you don’t miss anything.
• Note any points and any agreements.
• At the end get a summary of what has been agreed even if it is only that the school, the local authority or health will look into the situation.
• Set some deadlines and arrange a further meeting to check progress.
• Thank the member of staff for taking the time to meet you.

If you can’t reach agreement, you may be able to make a formal complaint.

It is important to keep a written record of all contacts with the school, the local authority or health, particularly if you may be moving on to a formal complaint. These might be:

• incidents affecting your child
• phone calls or meetings
• copies of letters.

If your complaint relates to something that had a significant effect on your child, see if there is anyone who can write a statement about this. That might be another professional such as a teacher, doctor, health visitor or youth leader or perhaps a family friend who knows the child well.

You may also wish to ask for disclosure of your child’s educational records under the Education (Pupil Information) (England) Regulations 2000 and the Data Protection Act 1998. These records should be made available within 15 school days. Please note although you may be able to view these records free of charge, the school can charge a fee (maximum of £50) for photocopying in order to provide you with a copy.

If you can’t reach agreement, you may wish to proceed to make a formal complaint following the individual educational setting complaints policy and procedures. All schools have their own complaints policy and procedures that must be available to parents. It’s often on the school’s website and should tell you the kind of complaints the school deals with.

If you are not satisfied with the outcome of your formal complaint, you may then be able to make a complaint to:

• Torbay Council about an educational setting maintained by us
• the Department for Education/schools complaint unit
• the Education Funding Agency (EFA) about an academy or a sixth form college
• the Skills funding agency about a further education college
• the Secretary of state about an independent school 
• Ofsted about how a school, academy or a sixth form college is being run

Local authorities have procedures to deal with complaints from children and young people, or from people complaining on their behalf, such as parents and guardians. You may find information on making a complaint about services you have received helpful.

Complaints about children’s services normally need to be made within 12 months, but the local authority can consider complaints made later than this. If it decides not to deal with the complaint, it should tell you why.

The complaints process should take into account the concerns of the child or young person involved and should be appropriate for their age and level of understanding.

If the child or young person wants to make a complaint themselves, the local authority should provide information about advocacy services and help them access these.

As with adult complaints, you should address your complaint to the manager of the service you are complaining about at first. Local authorities aim to have your complaint resolved at the local level within 10 working days, although this can be extended.

You may also find Cerebra’s Problem-Solving Toolkit for Families useful.

If you’re not happy with the local authority’s decision regarding your complaint, you can get help from the Local Government and Social Care Ombudsman.

The Local Government Ombudsman focuses on complaints about special educational needs/disability framework processes (eg where timescales have not been followed or stated provision has not been provided). The law generally prevents this service from investigating complaints which can be addressed by appeal to the statutory first-tier (special educational needs and disability) tribunal.

If you want to complain about an NHS service such as a hospital, GP or dentist, ask the service for a copy of their complaint’s procedure, which will explain what you need to do. If you speak to them, they may be able to resolve your concerns without you having to go through the complaints process. If your complaint is about a hospital, you might want to start by contacting its Patient Advice and Liaison Service (PALS). 

However, you may choose to make a complaint at any time. You can do this in writing, by email, or by speaking to them. This is called the local resolution stage, and it aims to resolve complaints quickly – most cases are resolved at this stage. If you would like to make a complaint, follow the NHS complaints process.

You may make a complaint to either the organisation that provided your healthcare or the organisation that commissioned that NHS service. The commissioning body will be the local Integrated Care Board (ICB) for hospital care, NHS England for GP, dental, pharmacy and optical services, or your local authority for complaints about public health services.

The time limit for a complaint is normally 12 months from the date the event happened, or from the date you first became aware of it.

Complaints about the NHS | The Advocacy People provide Independent Health Complaints Advocacy (IHCA) and some Factsheets to help you if you would like to make the complaint yourself or have started the process already.

Find tips on how to complain about NHS services.

If you are not satisfied with the outcome of your formal complaint you may be able to complain to the Parliamentary and Health Service Ombudsman.

Disagreement resolution is a voluntary process that can only take place if all parties agree. 

It is available to parents of all children and young people with SEND, not just those being assessed or who have an EHC Plan. 

It helps resolve disagreements about:

• how early years providers, schools and further education institutions are carrying out their duties for children and young people with SEND
• how social care services are carrying out their duties for children and young people with SEND
• health care services are carrying out their duties for children and young people with SEND
• the special educational provision made for a child or young person by early years providers, schools or further education institutions
• the social care provision made for a child or young person by early years providers, schools or further education institutions
• the health care provision made for a child or young person by early years providers, schools or further education institutions
• us or the local healthcare authority (BNSSG Clinical Commissioning Group) deciding not to undertake an EHC needs assessment
• us or the local healthcare authority deciding not to issue an EHC plan
• the special educational, health or social care support we or the CCG are providing in an EHC plan

In Torbay, we use Global Mediation to provide disagreement resolution services.

You may also find the following documents, below, useful:

• Routes for Disagreement Resolution – Factsheet
• Disagreement Resolution Services – Factsheet

Mediation is similar to, but slightly different from, disagreement resolution. It is where an independent mediator, separate from the council, tries to help parties to reach an agreement about a child or a young person who’s being assessed or has an EHC plan. 

Although mediation is voluntary, in most cases, consideration of mediation is a requirement before submitting appeals to the SEND Tribunal. This means that you do not have to take part in mediation but must contact the mediation service in order to get a certificate to confirm that you have considered it and chosen not to use the service. 

You, or your child if they’re over 16, can use mediation if you plan to appeal to the First Tier Tribunal about a decision we’ve made about: 

• not carrying out an EHC needs assessment or reassessment
• not drawing up an EHC plan after we’ve done an EHC needs assessment 
• the content of an EHC plan
• not amending an EHC plan after an EHC plan annual review 
• not agreeing to a full reassessment of needs after an EHC plan annual review
• no longer maintaining (ceasing) an EHC plan

A mediator can’t:

• take sides
• tell anybody what to do
• try to influence any agreement

The mediation provider for Torbay is Global Mediation. 

You may also find Mediation – Factsheet useful.

You can make appeal to the SEND tribunal about particular decisions we make.

For more information about:

• who can appeal 
• when you can appeal
• what decisions you can be appeal
• the appeals process

Please see:

• SEND Mediation and Tribunal Appeals

SENDIASS Torbay (Special Educational Needs and/or Disabilities, Information, Advice and Support Service)

We provide impartial information, advice and support to parents/carers & children/young people in relation to special educational needs and/or disability issues for children/young people aged 0-25. 

Working across education, health and social care our officers provide confidential and impartial advice, as well as ensuring that parents and carers’ views are heard and understood and that they understand their rights, roles and responsibilities.

SENDIASS Torbay supports parents through a range of ways including phone or email contact and face to face meetings. We have recently started running coffee mornings for Parents to be able to share thier experience and learning with each other and gain new information from us and other professional invited speakers. (Please see the flyer, attached within the downloads section on the right hand side of this webpage, for more information including dates, times and venues)

We also provide a signposting service to direct parents and carers towards the organisations that is best suited to help them, ensuring that they are empowered to make informed decisions about their child’s future.

SENDIASS Torbay can support parents and carers and children or young people in any of the following areas:

• Preparing for and  attending meetings with schools, local authorities and other professionals
• We have a confidential telephone helpline, with answering service in case we are unable to answer your call first time. We aim to return all messages within 2 working days.
• Helping to write official letters and complete forms
• Explaining the meaning of official documents
• Assisting in the statutory assessment process
• Referral to the correct organisation or contact

We can provide advice on

• The Special Educational Needs (SEN) systems and processes
• SEN provision in schools
• The statutory assessment process
• Education and Health Care Plans
• Annual reviews
• Transitions
• Transport
• Specialist provision/support services
•  Appeals to the Special Educational Needs and Disability Tribunal (SENDIST)
•  Disagreement resolution services
•  Local policies
•  SEN code of practice

Any service provided by SENDIASS ensures complete confidentiality for each individual case, we only take direct referrals from parents/carers & children/young people, or from a professional on thier behalf. We only make contact with a parent/carer or child/young person if it has been agreed that we can do so, and we have a dedicated confidential enquiry line. We can and will liase with other professionals on your behalf, with prior written consent. Contact us to find out more about how you can get involved.

Contact:

Phone: 01803 207884 (inquiry line open 10am – 2pm Mon – Fri and 24 hour answerphone facility)

Email: sendiass@torbay.gov.uk

Sendiass Torbay | Torquay | Facebook

Website: Sendiass Torbay | Torbay

Mediation is a way to try to resolve issues quickly.

In Torbay we use a mediatory approach and often offer what we call “informal mediation meeting” as a way of resolving issues and situations at the earliest possible opportunity.

The Children and Families Act 2014 requires all local authorities to provide independent mediation and disagreement resolution services to help when parents or young people cannot agree with the local authority or other providers about the special educational provision for a child or young person.

Mediation in a legal sense is carried out by a neutral third party organisation. Torbay local authority have a contract with Global Mediation for SEND. This service is free of charge and your conversations with a Global Mediation advisor are confidential.

Who to contact:

To arrange an informal mediation contact the Torbay SEND Team

To discuss mediation further contact a mediation advisor.

Telephone: 0800 064 4488

E-mail: sen@globalmediation.co.uk

Website: www.globalmediation.co.uk/service/special-educational-needs-disability/

You first have to contact Global Mediation to request a mediation meeting. They will then contact the local authority and appoint a mediator to your case. A meeting date will be agreed and your appointed mediator will expplain more. This service is free of charge and your conversations with a Global Mediation advisor are confidential.

Who to contact

Telephone: 0800 064 4488

E-mail: sen@globalmediation.co.uk

Website: www.globalmediation.co.uk/service/special-educational-needs-disability/

In this short video a young person explains their experience of mediation.

No – mediation is a voluntary process.

But, if you are considering appealing to the SEND Tribunal, unless you are only appealing about the school named in your child or young person’s EHCP, you will need to get a mediation certificate from Global Mediation.

If you want to appeal to the SEND Tribunal you must contact Global Mediation within 2 months of the decision letter you received from the local authority giving you the right of appeal. This service is free of charge and your conversations with a Global Mediation advisor are confidential.

Who to contact

Telephone: 0800 064 4488

E-mail: sen@globalmediation.co.uk

Website: www.globalmediation.co.uk/service/special-educational-needs-disability/

The SEND Code of Practice explains that mediation must be considered before you can submit an appeal to the SEND Tribunal.

If you want to appeal to the SEND Tribunal you will need to have a mediation certificate to prove you have considered mediation. The only type of SEND Tribunal appeal that does not require a mediation certificate is if you are only appealing about the name of school on an EHCP.

If you want to appeal to the SEND Tribunal you must contact Global Mediation within 2 months of the decision letter you received from the local authority giving you the right of appeal. This service is free of charge and your conversations with a Global Mediation advisor are confidential.

Who to contact

Telephone: 0800 064 4488

E-mail: sen@globalmediation.co.uk

Website: www.globalmediation.co.uk/service/special-educational-needs-disability/

SEND Tribunal is the commonly used term for the First-tier Tribunal (Special Educational Needs and Disability), which is an independent national tribunal which hears parents’ and young people’s appeals against:

• Local Authority (LA) decisions about EHC needs assessments and EHCPs for children and young people with SEND.
• Schools about disability discrimination in general and where disability discrimination has led to the permanent exclusion of a child or young person with SEND.

Please see SEND Mediation and Tribunal Appeals and Disability Discrimination for more information on when and how to appeal.

Who to contact:

Telephone: 01325 289350 or 0300 303 5857

E-mail: send@justice.gov.uk

Website: www.justice.gov.uk/tribunals/send

Address

First-tier Tribunal (Special Educational Needs and Disability)
1st Floor, Darlington Magistrates Court
Parkgate
Darlington
DL1 1RU
United Kingdom

Mediation is not compulsory. But, before bringing an appeal to the SEND Tribunal, you must have contacted the mediation service and received a certificate to prove that you have considered mediation. The exception is if you are appealing about the school or other educational placement or where no school or other educational placement is named and that is the only fact that you are appealing about.

The SEND Tribunal looks at the evidence put before it and decides whether the Local Authority (LA) decision followed the law and the SEND Code of Practice. It will make a decision based on what is right for the child or young person at the date of the hearing.

The SEND Tribunal has the power to order LAs to carry out EHC needs assessments, issue EHCPs, and amend existing EHCPs. LAs must comply with orders made by the SEND Tribunal.

If the SEND Tribunal makes a recommendation about health or social care elements of an EHC plan, this is non-binding. But it has been made clear that the expectation is that recommendations will generally be followed.

The SEND Tribunal also hears claims of disability discrimination against schools. Different timescales apply to disability discrimination appeals and you do not need to seek mediation advice if it is a disability discrimination claim.

SEND Tribunal hearings are usually online, although face to face or blended hearings may be available on request.

To be able to appeal, you must be:

• a parent. In education law ‘parent’ means you are either a birth parent, have acquired parental responsibility or have care of the child (e.g. a foster parent or grandparent with whom the child lives).
• or a young person over the age of 16.

If the decision concerns a child, it is the parent who has the right of appeal.

If the decision concerns a young person, then it is the young person who has the right of appeal.

There are no fees for parents or young people to pay.

What can you appeal?

You can bring an appeal to the SEND Tribunal if the Local Authority:

• refuses to carry out an EHC needs assessment or a Re-assessment of needs in an EHCP;
• have carried out an EHC needs assessment but refuses to issue an EHCP;
• decides not to amend an EHCP after an Annual review;
• decides that the EHCP is no longer necessary and they are going to ‘Cease to Maintain’ the EHCP;

There are also rights of appeal about the contents of an EHCP when first issued or reviewed/amended in a final form, specifically against:

• Section B: detailing the child or young person’s special educational needs;
• Section F: setting out the special educational provision specified in the EHCP;
• Section I: naming the school or other setting in the EHCP (and/or the type of school or setting), or if no school or other setting is named.

If you choose an extended appeal, the SEND Tribunal can also make non-binding recommendations about the health and social care aspects of EHCPs. This means although not legally required to comply health and social care are expected to follow such recommendations and must explain their reasons if they do not. If they are not followed, you can complain to the Local Government and Social Care Ombudsman (LGSCO) or Parliamentary and Health Service Ombudsman (PHSO) or seek to have the decision judicially reviewed.

Please note that with an extended appeal you must already be appealing in relation to education aspects of the EHCP and the education aspect of the appeal must remain live throughout the appeal. This gives you the opportunity to raise all your concerns about an EHCP, that is issued or amended, in one place. It also means that you can include the following sections in your appeal:

• Section C: detailing the child or young person’s health needs;
• Section D: detailing the child or young person’s social care needs;
• Section G: setting out the health provision specified in the EHCP;
• Sections H1 and H2: setting out the social care provision specified in the EHCP;

You need to make it clear on your appeal form if you want to include health and social care.

What sections can’t you appeal?

The following sections of an EHCP are completely outside of the SEND Tribunal’s scope:

• Section A – the views, wishes and aspirations of the child and his parents or the young person;
• Section E – the outcomes to be sought; and
• Section J – dealing with direct payments.

You cannot appeal about these sections of the EHCP.

Extended appeals to the First-tier Tribunal (SEND), allow the tribunal to make non-binding recommendations about the health and social care aspects of Education, Health and Care (EHC) plans. This gives you the opportunity to raise all your concerns about an EHC plan, that is issued or amended, in one place.

It is only possible for the Tribunal to consider the health and/or social care aspects of the EHC plan where you are already making an appeal in relation to the education aspects of the EHC plan and the education aspect must remain live throughout the appeal.

What does this mean for parents and young people?

If you are unhappy with a decision not to issue an EHC plan, or with the special educational content or placement in the plan, you can make an appeal to the SEND Tribunal.  You also have the opportunity to request recommendations about the health and social care content of the plan at the same time. This means the Tribunal will take a more holistic, person-centred view of the needs of the child or young person. 

This does not prevent you also complaining about other aspects of your disagreement through other complaint procedures.  You should seek advice about the different routes available, including from your local Information Advice and Support Service (IASS).

If the SEND Tribunal makes a recommendation about health or social care elements of an EHC plan, this is non-binding. The local authority and/or health commissioner is generally expected to follow such recommendations, but they are not legally binding. Where they are not followed, the reasons for not following them must be explained and set-out in writing to you and to the Department for Education through the evaluators. If they are not followed, you can complain to the Local Government and Social Care Ombudsman (LGSCO) or Parliamentary and Health Service Ombudsman (PHSO) or seek to have the decision judicially reviewed. Further information on the roles of these bodies can be found on their websites.

When can a parent or young person request recommendations about the health and social care elements of an EHC plan?

You can request the Tribunal makes recommendations about the health and/or social care aspects of EHC plans as part of an appeal relating to:

• the description of the child/young person’s special educational needs in an EHC plan
• the special educational provision specified in an EHC plan
• the school or other educational institution named in an EHC plan
• a decision by the local authority not to issue an EHC plan
• a decision by the local authority not to carry out a re-assessment for a child/young person who has an EHC plan
• a decision by the local authority not to amend an EHC plan following a review or re-assessment
• a decision by the local authority to cease to maintain an EHC plan

What does this mean for local areas?

Local authority SEND teams responsibility is to:

1. Inform parents and young people of these rights through decision letters and the local offer
2. Provide evidence to the Tribunal from the health and social care bodies in response to any issues raised within the timeframe set by the Tribunal, seeking permission to bring additional witnesses to the hearing as necessary

Health and social care commissioners responsibility is to:

1. Respond to any request for information and evidence within the timeframe set by the Tribunal
2. Send a witness to attend the hearing as required
3. Respond to the parent/young person and the LA SEND team within 5 weeks of a recommendation being made, setting out the steps they have decided to take or giving reasons why they are not going to follow the recommendation.

How can a parent or young person request a health or social care recommendation?

If you wish to appeal against a local authority decision on any of the grounds above and want to request that the Tribunal considers your concerns about the health and /or social care aspects of the EHC plan, you should follow the normal process for bringing an appeal to the Tribunal and tick the box on the form relating to a health and/or social care appeal. Advice on making SEND appeals to the Tribunal and the appeal form is available on the GOV.UK website.

Help and further information

• SEND tribunal: extended appeals – Guidance for local authorities, health commissioners, parents and young people on the trial to extend powers of the SEND tribunal & Evaluation of the national trial extension of special educational needs and disability (SEND) tribunal powers
• You can contact SENDIASS Torbay for independant information, advice and support. Phone: 01803 207884 (inquiry line open 10am – 2pm Mon – Fri and 24 hour answerphone facility). Email: sendiass@torbay.gov.uk – Sendiass Torbay | Torquay | Facebook

If you want to appeal to the SEND Tribunal there are a range of online forms covering different topics.

• Use Form SEND35A – If you are appealing because the local authority is refusing to carry out an EHC needs assessment
• Use Form SEND35 – If you are appealing about anything else to do with an EHCP
• Use Disability discrimination claim by a parent: Form SEND4A or Disability discrimination claim by young person: Form SEND4B – If you are making a general disability discrimination appeal
• Use Disability discrimination claim by parent after permanent exclusion: Form SEND26A or Disability discrimination claim by young person after permanent exclusion: Form SEND26B – If you are making a disability discrimination appeal after a permanent exclusion from school

Please remember that if you are appealing about an EHCP in all circumstances apart from only about the school named, you will need to have got a mediation certificate before you can submit your appeal.

These videos explain more about the SEND Tribunal including what happens at Tribunal hearings.

Disability discrimination is where a person (child, young person or adult) who has a disability is treated less favourably than non-disabled people.

Under the Equality Act 2010, it is against the law to discriminate against disabled people in various areas of their lives. This includes disability discrimination of children and young people within education. You can appeal to the SEND Tribunal about disability discrimination of children and young people within education.

The Equality Act 2010 brought together existing regulations that already gave protection against all kinds of discrimination and extended them. It gives people the right not to be disadvantaged or treated badly as a result of any ‘protected characteristics’.

The Equality Act Chapter 1, Section 4 states that:

“The following characteristics are protected characteristics —

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex;
• sexual orientation.”

Under the Act, disabled people should be treated equally and should get fair access to education, employment, goods, services, facilities and transport. The Act also explains how education providers and employers have to make reasonable adjustments, provide support and make things accessible.

The Equality Act 2010 is not a replacement for individual legal advice and organisations should also refer to the Equality and Human Rights Commission (EHRC) guidance available at www.equalityhumanrights.com/legal-and-policy/equality-act/equality-act-codes-of-practice

To be protected under the Equality Act (EqA), the claimant meet the legal definition. Disability is defined as:

“a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities”

• ‘Normal day-to-day’ means things that people do on a regular basis, for example mobility, dressing or cleaning (physical co-ordination), and having a conversation.
• ‘Long-term’ usually means the impairment should have lasted or be expected to last at least a year.
• ‘Substantial’ means not minor or trivial.

This definition is very wide and some impairments like cancer, HIV and Multiple Sclerosis automatically meet the definition from the point of diagnosis. People registered as blind or partially sighted are also automatically regarded as disabled under the Act, but this does not include sight impairments corrected by normal spectacles/contact lenses.

Excluded conditions

But, it is also important to be aware that there are certain identified tendencies and conditions that are specifically deemed not to amount to impairments.

The Equalities Act Reg 4 (1) states that:

“For the purposes of the Act the following conditions are to be treated as not amounting to impairments:—

(a) a tendency to set fires,

(b) a tendency to steal,

(c) a tendency to physical or sexual abuse of other persons,

(d) exhibitionism, and

(e) voyeurism.”

And, EqA Regs 3 and 5 also exclude the following from being treated as impairments:

• addictions to alcohol, nicotine and “any other substance” (essentially, drug addiction); and
• tattoos and piercings.

Often a child or young person may have both a protected disability and an excluded condition, but this does not necessarily mean that a claim would fail due to the excluded conditions.

In Governing Body of X Endowed school v Sendist and others [2009] EWHC 1842 (Admin) the school was found to have failed to make reasonable adjustments for the pupil’s ADHD generally, in the period leading up to an exclusion for violence, by failing to take steps to manage non-compliant behaviour and use calming and de-escalation strategies.

This is a two part test:

Part 1 – proof that the claimant has a disability as defined by the Act;

Part 2 – proof that the claimant has been treated unfairly because of that disability.

Part 1 of this test …

The claimant would have to be able to prove that it is harder for them to do everyday things and has been or is likely for you to continue to find it harder for them to do those things for at least year because of a ‘physical or mental impairment’ which might include:

• physical impairments (e.g. mobility difficulties);
• sensory impairments (e.g. visual or hearing impairments);
• learning difficulties, including people with specific learning difficulties such as dyslexia;
• mental health conditions which have a long-term effect;
• genetic and progressive conditions, if the condition affects your ability to carry out normal day-to-day activities;
• conditions which are characterised by a number of cumulative effects such as pain or fatigue;
• hidden impairments such as asthma or diabetes, if these have an effect on your day-to-day activities;
• diagnosed conditions that are not necessarily affecting you right now, but could return (recurring conditions) or get worse later on (progressive conditions).

[N.B. Successful measures to treat or correct impairments (for example, medication) do not exempt the impairment]. 

Then … Part 2 of this test …

The claimant would also have to prove that there is a link between their unfair treatment and their disability that could have been reasonably avoided.

Types of possible discrimination related to disability that are covered by the Act.

The Equality Act only protects people who have a disability against these types of discrimination:

• Direct discrimination (including discrimination by perception and discrimination by association);
• Indirect discrimination;
• Discrimination arising from disability;
• Failure to make reasonable adjustments;
• Harassment; and
• Victimisation.

N.B. It is possible to have experienced discrimination in more than one way.

The Equality Act only protects people who have a disability against these types of discrimination:

• Direct discrimination (including discrimination by perception and discrimination by association);
• Indirect discrimination;
• Discrimination arising from disability;
• Failure to make reasonable adjustments;
• Harassment; and
• Victimisation.

N.B. It is possible to have experienced discrimination in more than one way.

This is when the claimant is treated worse / less favourably than someone else because they have a disability. Therefore, they have to be able to show that there is a direct link between their disability and the way they have been treated.

Example: A blind person who meets entry requirements for an IT course is refused because the education provider wrongly assumes that blind people cannot use computers.

Disability by perception gives legal protection for people who are mistakenly perceived to be disabled.

Example: A person is not offered a place on a college course because the college suspects they have a mental health condition (even though they do not) and are therefore concerned they will not be able to complete the course.

Non-disabled people are also protected from discrimination by association to a disabled person. This might be a friend, fellow students or relative. This is important to remember if you are a carer for a disabled person.

Example: A training provider rejects a candidate because they are concerned the candidate’s caring responsibilities (for a disabled family member) will impact on their ability to complete an Apprenticeship.

This is where the claimant is treated badly not because of their disability but because of something that happens because of their disability. Unlike direct discrimination, there is no need for the claimant to compare themselves with anyone else. They just have to show that they were treated badly, and this treatment was linked to their disability.

Example:  a school refuses to allow a pupil with attention deficit hyperactivity disorder (ADHD) to go on a class visit to the theatre, because that pupil has attention difficulties and may disrupt the performance.

But the treatment will not be unlawful if:

• the person treating them like this can show there is a good reason for this treatment, and it was reasonable in the circumstances;
• or they did not know or could not reasonably have known they had a disability.

This is where a person or organisation has policies, practices or arrangements that seem to treat everyone the same, in an equal and non-discriminatory way, but, these policies, practices or arrangements put the claimant and others with the same disability at a disadvantage compared with those who do not have that disability.

Example:  a rule that ‘everyone must use the stairs’ which is unfair for people who use wheelchairs.

For indirect discrimination, it doesn’t matter whether the person or organisation knew about the claimants disability. In some cases the policy or practice may be justified if the person or organisation can show that there was a good reason for these practices and arrangements, and it was reasonable in the circumstances.

Example: a rule that you must be above a certain height to go on a particular fun fair ride. Whilst this could be discriminatory if a person had a growth defect it would still be justifiable if the reason for the rule was that it would be unsafe unless the height criteria was met and there was no possible equipment available that could be used to make it safe for a person below that height.

The Equality Act says that employers and service providers including education providers (ie. schools, colleges etc.), should think about making reasonable adjustments (in other words, changes), if it would place a person with a disability at a major disadvantage compared to other people who do not have a disability.

For Education this is an anticipatory duty owed to disabled people generally, not just particular individuals. This means that they must anticipate the type of barriers that students with various impairments may face. They must also anticipate the adjustments they can make to remove these barriers.

For Employers this is not an anticipatory duty, which means that they are only required to make adjustments if they would be ‘reasonably expected to know’ an employee has a disability.

What is reasonable?

Reasonable adjustments could include:

• making changes to the way things are organised or done (eg to change a policy);
• making changes to the built environment, or physical features (eg creating a ramp so that students can enter a classroom);
• providing aids and services to overcome a substantial disadvantage (eg providing information in accessible formats, induction loops, special computer software or additional staff support when using a service).

However, some things might not be reasonable and factors include:

• the effectiveness of making the adjustment and whether it is practical to do so;
• the financial resources of the education provider or employer;
• the availability of grants, loans and other assistance to disabled students, such as DSAs, Access to Work or charitable trusts;
• the extent to which aids and services will be provided to disabled students from other sources;
• health and safety requirements;
• the relevant interests of other people – for example if the adjustment results in significant disadvantage for other students;
• if allowable competence standards apply.

Competence standards,  or other standards applied to determine whether a student has reached a particular level of competence or ability, only apply if they determine the level of ability required in the specific circumstances. 

Competence standards may apply when;

• Applying for a course or job
• Taking an exam or completing an assignment to gain a qualification.
• Registering with a trade organisation, such as becoming a registered Nurse or Social Worker.

n.b How and exactly when failure to make reasonable adjustments applies, therefore  depends on the context. The disabled person cannot be asked to pay for the cost of reasonable adjustments. If a person or organisation does not make reasonable adjustments when it would have been reasonable to do, this will be unlawful discrimination.

Reasonable adjustments could include:

• making changes to the way things are organised or done (e.g. to change a policy);
• making changes to the built environment, or physical features (e.g. creating a ramp so that students can enter a classroom);
• providing aids and services to overcome a substantial disadvantage (e.g. providing information in accessible formats, induction loops, special computer software or additional staff support when using a service).

However, some things might not be reasonable, and factors include:

• the effectiveness of making the adjustment and whether it is practical to do so;
• the financial resources of the education provider or employer;
• the availability of grants, loans and other assistance to disabled students, such as DSAs, Access to Work or charitable trusts;
• the extent to which aids and services will be provided to disabled students from other sources;
• health and safety requirements;
• the relevant interests of other people – for example if the adjustment results in significant disadvantage for other students;
• if allowable competence standards apply.

Competence standards, or other standards applied to determine whether a student has reached a particular level of competence or ability, only apply if they determine the level of ability required in the specific circumstances. 

Competence standards may apply when;

• Applying for a course or job
• Taking an exam or completing an assignment to gain a qualification.
• Registering with a trade organisation, such as becoming a registered Nurse or Social Worker

N.B. How and exactly when failure to make reasonable adjustments applies, therefore depends on the context. The disabled person cannot be asked to pay for the cost of reasonable adjustments. If a person or organisation does not make reasonable adjustments when it would have been reasonable to do, this will be unlawful discrimination.

Harassment happens if the unwanted actions of an education provider violate the claimants dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them. Unwanted actions may include;

• spoken or written words or abuse
• imagery, graffiti
• physical gestures
• facial expression
• mimicry, jokes
• pranks.

Harassment should be connected to a protected characteristic, like disability, but you do not need to be a disabled person yourself. You may be associated with a disabled person, or people may mistakenly believe you have an impairment.

Example: a teacher repeatedly shouts at a pupil for failing to carry out an instruction because, as part of their autism, the pupil has receptive language difficulties and may have either misunderstood what has been asked, or needs more time to process the instruction.

Part 6 of Equality Act 2010 (EqA) covers all aspects of educational life to do with how an education provider treats current, prospective, and past pupils/students, parents and carers, employees, and members of the community. Everything an education provider does must be fair, non-discriminatory, and not put individuals or groups of people at a disadvantage. An education provider could be a school (chapter 2 of the EqA), Local Authority, college or university (chapter 3 of the EqA). In particular, any education provider must not discriminate, harass or victimise a pupil or potential pupil in relation to: 

• Admissions.
• The way it provides education for pupils.
• How it provides pupils/students access to any benefit, facility or service.
• Excluding a pupil/student or subjecting them to any other detriment.

[n.b. Private education, including pre-school providers and training providers also have similar duties under the Act as service providers.]

This is when the claimant is treated unfairly as a result of:

• making an allegation of, or complaint about discrimination;
• or supporting someone or giving evidence when someone else made an allegation of, or complaint about discrimination.

In relation to Schools  

The claimant must usually take their complaint to SEND Tribunal within six months of the date when the alleged discrimination took place. The Tribunal will only deal with claims against schools. Remedies include ordering apologies, staff training, alteration to school policies and that reasonable adjustments are made. The tribunal does not have the power to award monetary compensation, make changes to the contents of an EHCP or to dismiss a teacher .

In relation to Local Authority and post 16 education providers

These claims are taken to and heard by the county court. The claimant must usually take your complaint to court within six months of the date when the alleged discrimination took place. The outcomes of a court case may include compensation for injury to feelings, an injunction to prevent further discriminatory practices by the education provider.