Wednesday, 7 May 2014

Council announces potentially unlawful move to EHC Plans

The Children and Families Act is not anticipated to come into force until September. Part of the legislative underpinnings, the SEN Code of Practice, which gives guidance to local authorities, schools and families, has not yet been finalised. Until Royal Assent is given, local authorities must comply with the current law.

As a pathfinder North Yorkshire has been trialling EHC Plans for some time. Under the pathfinder rules, parents must be offered a choice of process, either the current statutory assessment process that includes Statements of Special Educational Need, or they can opt for the EHC assessment and potentially receive an EHC Plan for their child . At any point parents can ask to change from the Plan process to the statutory assessment process, including changing a Plan for a statement once issued.

The key difference between the two is that the statutory assessment process is governed by the law and current Code of Practice (the name does rather give it away). It allows parents to appeal to the SEND Tribunal if they do not believe the council has provided appropriately for their child. The EHCP process allows for no such appeals - there is currently no legal oversight. It is our understanding that any child's Plan that is created by a pathfinder, before legislation is passed, has no legal basis either. This would include any Plan where the process starts before legislation is enacted, and is completed after legislation comes into force. The implications of this are that moving to Plans now will be a false economy as the council will have to go through the process again for each child. 

Earlier this year the council announced that it was moving to the new EHCP system in April ahead of the legislation (see this post for details). It has now confirmed the changeover in a document dated May 9 (page 9, here). The result of this move is that it appears parents will not be given  the choice of process and therefore have no protection in law over decisions made by the council or health services.

Such a seeming disregard for the law and removal of parental rights does not bode well for the new legislation which was, in part, created to "..minimise the adversarial nature  of the system for families and to maximise value for money." (DfE Support and Aspiration)


According to this recent FOIA response from the council, parents can still opt for the currently legally-backed statutory assessment and statementing process. This seems like a reversal in the position taken by North Yorkshire - though this has been denied. In that case why did it announce it was moving to the new system in April if nothing has changed?


I can reassure you that North Yorkshire is not about to do anything 
illegal. The document you refer to is an update on the SEND Strategy. The
 quoted sentence might more comprehensively have said, " . . . with the 
informed consent of parents" which has always been the Local Authority's 
position. The attached document is for parents and is or will shortly be 
on the website of the Parent and Carer Forum (NYPACT) and on the Council's
Local Offer website. It explains in detail what North Yorkshire is 
intending to do within the current legislation whilst preparing for
imminent changes in the law.

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