Home Education and Education, Health and Care Plans

Under Section 7 of the Education Act 1996, parents have the right to educate their children at home. The Special Educational Needs and Disability Code of Practice says LAs should fund the SEN needs of home-educated children where it is appropriate to do so. However, there is no legal duty on LAs to fund any element of the child’s education. Parents need to consider this carefully before withdrawing a child from school.

What are Special Educational Needs?

  • A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her.
    (2) A child of compulsory school age or a young person has a learning difficulty or disability if he or she—
    (a) has a significantly greater difficulty in learning than the majority of others of the same age, or
    (b) has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.

    Section 20 Children and Families Act 2014

 

An Education, Health and Care (“EHC”) needs assessment is an assessment of the education, health care and social care needs of the child or young person.

A child already having an EHCP is not a barrier to home educating. The parent's duty is to cause the child to receive efficient full-time education suitable to age, ability, aptitude and any special educational needs he/she has, either by regular attendance at school or otherwise. Section 7 of the Education Act 1996 applies to all children, whether or not they have an EHCP.

SEND Code Practice 2015 - 10.30 Under section 7 of the Education Act 1996 parents have the right to educate children, including children with SEN, at home. Home education must be suitable to the child’s age, ability, aptitude and SEN. Local authorities should work in partnership with, and support, parents to ensure that the special educational needs of these children are met where the local authority already knows the children have SEN or the parents have drawn the children’s special needs to the authority’s attention. Local authorities do not have a duty under section 22 of the Children and Families Act 2014 to assess every home educated child to see whether they have SEN. The high needs block of the Dedicated Schools Grant is intended to fund provision for all relevant children and young people in the authority’s area, including home educated children. Local authorities should fund the SEN needs of home educated children where it is appropriate to do so.

10.31 In cases where local authorities and parents agree that home education is the right provision for a child or young person with an EHC plan, the plan should make clear that the child or young person will be educated at home. If it does then the local authority, under Section 42(2) of the Children and Families Act 2014, must arrange the special educational provision set out in the plan, working with the parents. Under Section 19 of the Act, a local authority must have regard to the views, wishes and feelings of the child and his or her parents, or the young person.

10.32 In cases where the EHC plan gives the name of a school or type of school where the child will be educated and the parents decide to educate at home, the local authority is not under a duty to make the special educational provision set out in the plan, provided it is satisfied that the arrangements made by the parents are suitable. The local authority must review the plan annually to assure itself that the provision set out in it continues to be appropriate and that the child's SEN continue to be met (see Chapter 9). Where the local authority has decided that the provision is appropriate, it should amend the plan to name the type of school that would be suitable but state that parents have made their own arrangements under section 7 of the Education Act 1996.

10.33 Where a child or young person is a registered pupil and the parent decides to home educate, the parent must notify the school in writing that the child or young person is receiving education otherwise than at school and the school must then remove the pupil's name from the admission register. If the school is a special school, the local authority must give consent for the child's name to be removed, but this should not be a lengthy or complex process. There is no provision in law for a ‘trial period’ of home education.

10.34 Local authorities do not have the right of entry to the family home to check that the provision being made by the parents is appropriate and may only enter the home at the invitation of the parents. Parents should be encouraged to see this process as part of the authority’s overall approach to home education of pupils with SEN, including the provision of appropriate support, rather than an attempt to undermine the parents' right to home educate.

10.37 Parents may also home educate children who have SEN but do not have EHC plans. As with children and young people with EHC plans, local authorities should work with parents and consider whether to provide support in the home to help the parents make suitable provision. Information about the right to request an EHC assessment and the right to appeal should be available to all parents including those who are considering home education because they feel that the special educational support being provided in the school is insufficient to meet the child or young person's needs.

10.38 Young people may also be educated at home in order to meet the requirement to participate in education and training until the age of 18. Local authorities should involve parents, as appropriate, in the reviews of EHC plans of home-educated young people who are over compulsory school age.

EHC plans must specify the outcomes sought for the child or young person [9.64 SEND Code Practice]

"An outcome can be defined as the benefit or difference made to an individual as a result of an intervention...Outcomes are not a description of the service being provided – for example the provision of three hours of speech and language therapy is not an outcome. In this case, the outcome is what it is intended that the speech and language therapy will help the individual to do that they cannot do now and by when this will be achieved." [9.66 Code of Practice 2015 paragraphs 9.61 to 9.69. EHC plans must specify the outcomes sought for the child or young person [9.64 SEND Code Practice 2015]

Outcomes will usually set out what needs to be achieved by the end of a phase or stage of education in order to enable the child or young person to progress successfully to the next phase or stage. The provision should enable the outcomes to be achieved. [9.68 SEN Code Practice 2015]

Economic Responsibility

Home educators assume economic responsibility for their child, and the local authority may not continue supplying services that your child previously received through school, such as occupational therapy, physiotherapy or speech and language therapy (SaLT). Funding is at the discretion of the local authority but in practice, it is rarely available.

There may be other ways of you accessing this support. Your GP may be able to arrange the therapies your child needs on the NHS. Some charities also offer support or financial aid to help you meet your child’s needs.

Where the child already has an EHC plan, parents should be aware that if they remove their child from school to home educate the LA will be relieved from the duty to ensure any special educational provision, specified in Section F of the plan is provided. The EHCP would need to be amended to remove the named school.

Home educating parents with a child with no existing care plan can request an EHC needs assessment which may eventually result in an Education, Health and Care Plan (EHCP). You will need to collect evidence to prove that your child has significantly greater difficulties than other children of the same age and would require much greater support than other children if he/she attended school or has a disability which prevents them from accessing their education in an ordinary school. The process can be quite lengthy.  Flowchart for requesting an EHC assessment. If you are asking for an EHCP because you believe your child would need one in school, you may find that the authority suggests enrolling the child in a school to see how it goes before proceeding any further. You do not have to agree to this and there is a right of appeal against a refusal to assess. Some home educating parents want an EHCP in the hope it will lead to the possibility of Personal Budgets and Direct Payments but being able to do this is extremely rare. All children with EHC Plans can request a personal budget, and as long as home education is specified on your child's EHC Plan for educational provision, the council can provide this funding to ensure the best outcome for them.

Personal budgets can be paid in four ways:

  • Direct payments, where you receive the cash to contract, purchase and manage services themselves.
  • An arrangement whereby the local authority, school or college holds the funds and commissions the support specified in the plan (these are sometimes called notional budgets).
  • Third party arrangements, where payments are made to and managed by an individual or organisation on behalf of you or your child.
  • A combination of the above.

The council will check how your personal budget is being spent. They must monitor the use of direct payments at least once in the first three months, and when reviewing the EHC plan.

The payments must be being used effectively and the amount must be appropriate.  However, as mentioned, actually getting this provided, especially for home educated children is exceedingly rare.

Read what SEN lawyer Steve Broach has to say about direct payments for special educational provision in the Children and Families Act here

If the child was attending school, the school would have to show that they had already made various adjustments and implemented various strategies within the school setting and that these had not worked.

This is known as the "graduated approach" or "Assess, Plan, Do, Review" cycle. So, if your child has previously attended school, your case will be strengthened by any evidence of what has already been tried and not worked.

Some families want the plan so that their child can go to a particular special school. In this case, in addition to making the plan, the council will have to agree that the required category of placement is a special school and the plan will need to name the school. Parents have a right to express a preference over which school is named but if the preferred school is further away than an available, comparable school (which results in more expense in travel for the LA) or over the border in another local authority then this is often more difficult to secure. It helps if mainstream school has been tried and failed and/or if the council admits that there isn't a suitable local school because otherwise their default position is often to try it first and see. Parents may have to go to tribunal over placement.

Who will carry out the assessment and where will the information come from?

There is a flowchart here detailing the conduction of an EHCP Needs Assessment from Special Needs Jungle .

The LA has a legal duty to carry out the assessment process. They cannot ask a school or college to carry out the assessment for them, and they cannot require the school, college or parents to pay for any part of the assessment (such as the educational psychologist’s report).

The local authority must gain information and advice on a child or young person’s needs, the provision required to meet those needs, and the outcomes expected to be achieved by the child or young person. This advice must come from a range of different people or agencies.

The list is set out in Regulation 6(1) of the Special Educational Needs and Disability Regulations 2014 (the “SEN Regs”):

  1. the child’s parent or the young person;
  2. educational advice (usually from the head teacher or principal);
  3. medical advice and information from a health care professional;
  4. psychological advice and information from an educational psychologist;
  5. advice and information in relation to social care;
  6. advice and information from any other person the local authority thinks appropriate;
  7. where the child or young person is in or beyond year 9, advice and information in relation to provision to assist the child or young person in preparation for adulthood and independent living; and
  8. advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from.

The LA is legally required to seek all of this information as a minimum.

If a child or young person is hearing impaired and/or visually impaired the educational advice must come from a suitably qualified person (SEN Reg 6(2)).

The LA should consider whether a social care assessment or health assessment is also needed. There is some debate as to whether health and care assessments are automatically triggered when a request for an EHC needs assessment is made. In practice, it is best to request social care and health assessments independently to ensure the request is received.

Can other information be requested?

Under point SEN Reg 6(1)(h), a parent or young person can ask the LA to seek advice from anyone within education, health or social care, as long as it is a reasonable request. This can include a speech and language therapist, occupational therapist, physiotherapist or someone from CAMHS (Child and Adolescent Mental Health Services).

A request would be considered reasonable where, for example, a child or young person has been identified as needing an assessment already and they are on a waiting list, or where the school, college or other professionals have said this advice may be needed.

It is best to request that a particular professional is approached in writing (either in a letter or an email), so that you have a record of your request. If the LA do not agree to your request, you can make a complaint.

What if there are existing reports or advice about the child or young person?

The LA does not have to seek new advice where that type of advice has previously been provided for any purpose – for example, if there already was a recent educational psychologist’s report. However, the LA and the child’s parents need to be satisfied that the existing advice is sufficient. Earlier advice can only be sufficient for an EHC needs assessment if it is relatively up to date and accurately reflects the child or young person’s current needs.

If a parent or young person already has their own advice and reports, these can be submitted as part of their own advice (which the LA must ask for under SEN Reg 6(1)(a)) to ensure that they form part of the assessment process. This evidence must then be considered when the LA makes its decision.

Copies of evidence submitted by the parent or the young person must be supplied to the other people from whom information is being sought (SEN Reg 6(3)).

Their advice must be clear, accessible and specific (see paragraph 9.51 of the SEN and Disability Code of Practice). In particular, it should address the child or young person’s needs, the special educational provision required to meet those needs, and the outcomes which this provision will aim to achieve.

Any advice received should comply with SEN Reg 6(1).

How should the LA involve the parents, child and/or young person?

As well as the duties relating to evidence, the LA must:

  • Consult with the parent or young person, and where the case involves a child, they must also consult with the child. They must consider their views, wishes and feelings;
  • Engage the child and the child’s parent or the young person, ensuring that they can take part in decisions; and
  • Minimise disruption for the child, the child’s parent, the young person and their family.

SEN Reg 9 requires the LA to consider whether the child’s parent or the young person requires any information, advice and support in order for them to take part effectively in the EHC needs assessment, and provide this, if necessary.

How long will this take?

Anyone who is asked for information and advice must respond within 6 weeks (SEN Reg 8(1)) unless there are exceptional circumstances affecting the child.

This is a legal duty which must be complied with; it cannot be avoided because there is a long waiting list or because there are staffing shortages. If an LA is genuinely unable to obtain one of the necessary pieces of advice during the time frame, they would be expected to obtain an independent report in its place.

The LA must notify the parent or young person of their decision whether or not they will issue a plan within a maximum of 16 weeks from the request for assessment.

Following an EHC needs assessment, when does the LA have to issue an EHC plan?

The LA must decide, based on the evidence from the EHC needs assessment, whether it is necessary for the child or young person to have an EHC plan.

The legal test which the LA must apply is found in section 37(1) of the Children and Families Act 2014 which says:

(1)    Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan -

(a)     the local authority must secure that an EHC plan is prepared for the child or young person, and

(b)     once an EHC plan has been prepared, it must maintain the plan.

If the LA decides not to issue an EHC plan, it must tell the parent or young person within 16 weeks of the date the request was made. This decision can be appealed to the SEND Tribunal.

If the LA decides to issue an EHC plan, it will first send out a draft plan for the parent or young person to review and comment on. It should then send the final EHC plan to the parent or young person within 20 weeks from the date the assessment was requested. To meet this deadline, they would need to send out the draft plan a maximum of 14 weeks from the date the assessment was requested.

A common labelling system has been introduced in the SEN Regulations and followed by the Code of Practice meaning that every EHC plan must contain specified sections that must be labelled with the same letter as follows:

A: The views, interests and aspirations of the child and their parents or young person;
B: The child or young person’s special educational needs;
C: The child or young person’s health needs which are related to their special educational needs;
D: The child or young person’s social care needs which are related to their special educational needs;
E: The outcomes sought for the child or the young person, including outcomes for adult life. The EHC plan should also identify the arrangements for setting shorter term targets by the early years provider, school, college or other education or training provider;
F: The special educational provision required by the child or the young person;
G: Any health provision reasonably required by the learning difficulties and disabilities which result in the child or young person having SEN, and where an Individual Health Care Plan is made for them, that plan;
H1: Any social care provision which must be made for a child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970;
H2: Any other social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having SEN. This will include any adult social care provision being provided to meet a young person’s eligible needs (through a statutory care and support plan) under the Care Act 2014;
I: The name and type of the school, maintained nursery school, post-16 institution or other institution, or the type of school or other institution to be attended by the child or young person where no such institution is named;
J: Where there is a personal budget, the details of how the personal budget will support particular outcomes, the provision it will be used for including any flexibility in its usage and the details of any agreement for a direct payment for education, health and social care as set out in respective regulations;
K: The advice and information gathered during the EHC needs assessment (in appendices).

SECTION A further info – This section sets the scene but the outcomes must be in Sec C. Paragraph 9.65 SEND Code of Practice 2015 says "long-term aspirations are not outcomes in themselves – aspirations must be specified in Section A of the EHC plan. A local authority cannot be held accountable for the aspirations of a child or young person" Paragraph 9.69 SEND Code of Practice 2015 says "for children and young people preparing for the transition to adulthood, the outcomes that will prepare them well for adulthood and are clearly linked to the achievement of the aspirations in section A.".

SECTION B further info - Paragraph 9.69 SEND Code of Practice 2015 says "all of the child or young person’s identified special educational needs must be specified. SEN may include needs for health and social care provision that are treated as special educational provision because they educate or train the child or young person (see paragraphs 9.73 onwards)" This part also says "provision must be specified for each and every need specified in section B. It should be clear how the provision will support achievement of the outcomes"

Paragraphs 6.28 - 6.35 SEND Code of Practice 2015 have the following "broad areas of need" carried over from the 2001 Code of Practice which are often reproduced in EHC plan templates.

  • Communication and interaction
  • Cognition and learning
  • Social, emotional and mental health difficulties
  • Sensory and/or physical needs

Paragraphs 6.27 SEND Code of Practice 2015 says ‘these four broad areas give an overview of the range of needs that should be planned for. The purpose of identification is to work out what action the school needs to take, not to fit a pupil into a category. In practice, individual children or young people often have needs that cut across all these areas and their needs may change over time. For instance, speech, language and communication needs can also be a feature of a number of other areas of SEN, and children and young people with an Autistic Spectrum Disorder (ASD) may have needs across all areas, including particular sensory requirements. A detailed assessment of need should ensure that the full range of an individual’s needs is identified, not simply the primary need’.

SECTION C further info - Health needs relating to SEN listed in section C should have corresponding provision in section F. If provision is listed in section F it is ultimately the responsibility of the local authority to make sure it is delivered. Families can go to the SEN tribunal over special educational provision in section F. See Appeal Form SEND24‘Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision(instead of health care provision or social care provision)’
Section 21 (5) Children and Families Act 2014.

SEND Code of Practice 2015 9.74. ‘Decisions about whether health care provision or social care provision should be treated as special educational provision must be made on an individual basis. Speech and language therapy and other therapy provision can be regarded as either education or health care provision, or both. It could therefore be included in an EHC plan as either educational or health provision. However, since communication is so fundamental in education, addressing speech and language impairment should normally be recorded as special educational provision unless there are exceptional reasons for not doing so.’
Paragraph 9.74 SEND Code of Practice 2015

SECTION D further info - Social care needs relating to SEN listed in section D should have corresponding provision in section F. If provision is listed in section F it is ultimately the responsibility of the local authority to make sure it is delivered. Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision)
Section 21 (5) Children and Families Act 2014.

The EHC plan must specify any social care needs identified through the EHC needs assessment which relate to the child or young person’s SEN or which require provision for a child or young person under 18 under section 2 of the Chronically Sick and Disabled Persons Act 1970. The local authority may also choose to specify other social care needs which are not linked to the child or young person’s SEN or to a disability. This could include reference to any child in need or child protection plan which a child may have relating to other family issues such as neglect. Such an approach could help the child and their parents manage the different plans and bring greater co-ordination of services. Inclusion must only be with the consent of the child and their parents. Regulation 12 (3) says "where the child or young person is in or beyond year 9, the EHC plan must include within the special educational provision, health care provision and social care provision specified, provision to assist the child or young person in preparation for adulthood and independent living.

SECTION E further info - The special educational provision set out in section F should support the child or young person to achieve the outcomes set out in section E and be backed up by advice in section K

Paragraph 9.66 SEND Code of Practice 2015 says "an outcome can be defined as the benefit or difference made to an individual as a result of an intervention... When an outcome is focused on education or training, it will describe what the expected benefit will be to the individual as a result of the educational or training intervention provided"

Paragraph 9.61 SEND Code of Practice 2015 says "in preparing the EHC plan the local authority must consider how best to achieve the outcomes sought for the child or young person. The local authority must take into account the evidence received as part of the EHC needs assessment."

Paragraph 9.64 SEND Code of Practice 2015 says "EHC plans should be focused on education and training, health and care outcomes that will enable children and young people to progress in their learning and, as they get older, to be well prepared for adulthood. EHC plans can also include wider outcomes such as positive social relationships and emotional resilience and stability. Outcomes should always enable children and young people to move towards the long-term aspirations of employment or higher education, independent living and community participation."

Paragraph 9.65 - Long-term aspirations are not outcomes in themselves – aspirations must be specified in Section A of the EHC plan. A local authority cannot be held accountable for the aspirations of a child or young person.

Paragraph 9.69 also says "for children and young people preparing for the transition to adulthood, the outcomes that will prepare them well for adulthood and are clearly linked to the achievement of the aspirations in section A."

For home educators, there is an important distinction in the new Code between "outcomes" and "targets". EHCP "outcomes" are medium to long term, whereas targets are more short term, and - crucially for home educators - targets are set "at the level of the school or other institution where the child is placed" (see paragraph 9.6 SEND Code of Practice 2015). In other words targets are not applicable in the home setting.

SECTION F further info - For provision to be included in section F, there must be corresponding needs identified in sections B, C and D. "Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision) Section 21 (5) Children and Families Act 2014.

Section 21 Children and Families Act 2014 says "Special educational provision" ... means educational or training provision that is additional to, or different from, that made generally for others of the same age in— (a)mainstream schools in England, (b)maintained nursery schools in England, (c)mainstream post-16 institutions in England, or (d)places in England at which relevant early years education is provided."

The significance of provision being listed in section F rather than elsewhere in the EHCP is that families can ONLY go to the SEN tribunal over provision which is categorised as ‘special educational provision’

Section G further info - Health care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having special educational needs (Reference = Regulation 12 (1))

SEN Regulation 12 (2) says The health care provision specified in the EHC Plan in accordance with paragraph (1)(g) must be agreed by the responsible commissioning body’.

"any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs"
Section 37 (2) (d) Children and Families Act 2014.

SECTION H further info –

H1

Social care provision which must be made for the child or young person as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970 (Reference = Regulation 12 (1))

H2

Any other social care provision reasonably required by the learning difficulties or disabilities which result in the young person having special educational needs (Reference = Regulation 12 (1))

"any social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs, to the extent that the provision is not already specified in the plan under paragraph (e) (ie Chronically Sick and Disabled Persons Act 1970)"
Section 37 (2) (f) Children and Families Act 2014.

Paragraph 8.70 SEND Code of Practice 2015 says local authorities must set out in section H2 of the EHC plan any adult care and support that is reasonably required by the young person’s learning difficulties or disabilities. For those over 18, this will be those elements of their statutory care and support plan that are directly related to their learning difficulties or disabilities.

SECTION I further info - Section I

The name of the school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person and the type of that institution or, where the name of a school or other institution is not specified in the EHC plan, the type of school or other institution to be attended by the child or young person (Reference = Regulation 12 (1))

The new SEN Code envisages two different types of "home education." One choice - set out in 10.32 - is where parents take responsibility for making provision, with no help from the LA, which is what home educators would usually understand as "home education". The other possibility - set out in 10.31- is where the local authority agrees the arrangements and takes responsibility for funding the provision.

SECTION J further info - Where any special educational provision is to be secured by a direct payment, the special educational needs and outcomes to be met by the direct payment (Reference = Regulation 12 (1))

Reference for direct payments can be found in section 49 of the Children and Families Act 2014; SEN Personal Budget Regulations (The Special Educational Needs (Personal Budgets) Regulations 2014). As amended by The Special Educational Needs (Miscellaneous Amendments) Regulations 2014 No. 2096.

"Provision for which a local authority is not required to prepare a personal budget Amended Regulations
4A. (1) For the purposes of section 49(2), the particular provision to be secured by an amount identified in a personal budget does not include provision that is specified, or proposed to be specified, in an EHC plan (the "specified provision")—
(a)which the local authority secures, or proposes to secure, under arrangements within the meaning of paragraph (2); and
(b)where the conditions in paragraph (3) apply.
(2) "Arrangements" for the purposes of this regulation means any arrangements between the local authority and a third party under which the local authority pays an aggregate sum for special educational provision which includes the specified provision.
(3) The conditions are that—
(a)the aggregate sum paid by the local authority under the arrangements includes a notional amount for the specified provision; and
(b)the notional amount cannot be disaggregated from the aggregate sum because the disaggregation—
(i)would have an adverse impact on other services provided or arranged by the local authority for children or young people with an EHC plan; or
(ii)would not be an efficient use of the local authority's resources."
.

SECTION K further info - The advice and information obtained in accordance with regulation 6(1) must be set out in appendices to the EHC plan (Reference = Regulation 12 (1))

"A response stating “not known to this service” is not going to fulfil the local authority’s duty to obtain the advice necessary for a full and accurate EHC needs assessment. IPSEA have a model letter that can be used in circumstances when any professional contained in the Reg 6 list provides such a response" Reference Ipsea, What is an EHC needs assessment, October 2015. Paragraph 9.51 of the SEND Code of Practice 2015 says "the evidence and advice [for section K] submitted by those providing it should be clear, accessible and specific. 

If you disagree with any part of the process and want to complain or want to appeal a decision please see this flowchart for more information on what to do and how to appeal. We would also recommend getting information and advice from other sources such as https://www.ipsea.org.uk/.

 
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