Election 2019 – How the new government might ease SEND struggles over EHCPs

This is a the third in a series of blogs focusing in on specific priorities that CfEY called for in this year’s election manifestos.

In this article Kate Bowen-Viner takes a look at how we might streamline the process of awarding Education Health and Care Plans. 

Here at the Centre for Education and Youth, we’ve spent a much of our time over the last five years researching various issues affecting children with SEND. We’ve found that the complex system for awarding Education Health Care Plans (EHCPs) is one of several problems driving a crisis in the SEND sector. One of these problems is the increasingly adversarial relationship between parents and local authorities, exacerbated by frustrations with the EHCP assessment process, despite the policy’s original intention to give parents a greater role in decision making. Things need to change. Resolving this problem requires a multifaceted approach, led by the new government from December 13^th.

This approach is likely to involve a combination of:

• increased overall funding for both “high” and “low” needs SEND
• Beefing up mainstream schools’ capacity to deliver a decent education for young people with SEND
• Reforming the accountability system’s perverse incentives for schools to deprioritise young people with SEND
• Resolving the current demand for places in special schools, whether through increasing capacity in the specialist sector, or reducing demand through improving mainstream provision
• Rethinking schools’ ability to access health, care and education specialists when needed

There are no quick fixes. Having said that, we think that the new government might be able to make one relatively simple change to the system, that would bring about an improvement.

EHCP Assessments

Local authorities currently decide whether or not to put forward children with SEND for EHCPs for assessment.  They also conduct statutory assessments of SEND and also commission and fund the services specified in EHCPs. This creates a conflict of interest for local authorities and makes it challenging to deliver support to young people who need it. As Evan Odell, a researcher from Disability Rights UK says:

“The promise of EHCPs was that the needs and interests of disabled young people would be the highest priority when making decisions, in practice it seems to receive little but lip service.”

The new government should urgently decouple the ‘assessment of need’ process from EHCP funding decisions. Local authorities should be solely responsible for assessing pupils needs, gathering evidence and drafting EHCPs. The Department for Education, NHS England and the Department for Health and Social Care should then collaborate to appoint a working group of specialists who decide whether a young person is in fact eligible for the level of funding support set out in their draft EHCP. Funding should then be distributed from central government so that local authorities do not have a conflict of interest.

Why is this needed?

If local authorities are assessors, commissioners and funders, there is a risk that decisions about whether or not to award EHCPs to individual young people will not be made in the interests of that young person. To balance the books, LAs may feel pressured to avoid judging a young person as needing extra support.  This means that many young people may be missing out on essential provision.

The variable funding between local authorities also adds to the problem. If a local authority has more money, they may have more leeway on EHCP decisions compared to cash-strapped councils who feel they cannot afford to provide support to a young person in their region. One young person may therefore qualify for support and high levels of funding in a particular local authority, but not in another. This is not fair or equitable. Appointing a working group to evaluate draft EHCPs, and suggested funding, would improve things by relieving some pressure from local authorities.

What would be the benefits?

Separating ‘assessments of need’ from EHCP funding decisions would be relatively easy to deliver. Councils across the country already have the infrastructure and experience to collect information- from education, health and care professionals, parents/carers and young people- that guides EHCP assessments. This makes the policy shift easier to deliver because central government would not need to fund and build up a brand-new organisation to gather information on each child put forward for EHCP funding.

Separating SEND assessments from EHCP funding decisions could also benefit parents, and reduce pressure on the public purse, by decreasing the need for SEND tribunals. At the moment, if parents are unsatisfied with a SEND assessment, they can challenge the decision through a tribunal. Thousands take place every year and a high proportion of local authority decisions are overturned. For instance, in 2017-18, just over 2298 appeals were heard at tribunals nationally. A whopping 2035 of these tribunal cases ended in a decision which favoured the appellant, suggesting that many decisions made by local authorities were unjust. Decoupling SEND assessments from funding would improve decision making, meaning that there would be a reduced need for parents to appeal decisions through costly and time-consuming tribunals.

Joined up working between government departments would also help to foster better informed decisions about EHCP funding. NHS England, the Department of Health and the Department for Education should therefore work together to appoint a working group of experts across the SEND sector to make funding decisions centrally. A working group would include professionals who understand effective support for different situations and the likely cost of support. For example, a working group might be constituted of education psychologists, occupational therapists and paediatricians, as well as teachers, SENCOs or care workers.  This would provide a variety of expertise in the working group itself and give central government departments a stake in EHCP funding.

Transparency about decisions on EHCP funding would also help local authorities who regularly feel short-changed. The working group would justify funding decisions case by case, meaning that local authorities could make a case to the media, or a formal appeal, when they feel that the working group’s decision is unjust.

The government has a duty to meet all young people’s education and healthcare needs. Young people with SEND need to be put front and centre of our education system. Whilst wide ranging reforms are needed before this can happen, decoupling SEND assessments and EHCP funding would help LAs, schools and central government produce fairer outcomes for young people, and help reduce some of the toxic distrust between parents of SEND and LAs.