Can The LA Remove Provision From My Daughter’s Statement?

Parent asks:


18 months after our LA asked my daughter’s school to start the transfer to EHC Plan process (she is now in Y9 at specialist independent school) we had a meeting to discuss our amendments to their draft.


Our amendments including putting back all the needs and provision detailed in her 2014 Statement, 2016 transfer to EHCP Review (school), and 2017 Annual Review that the LA had ‘omitted’.

The LA rejected many of the inclusions from her 2014 Statement saying this was out of date and there was no evidence for these needs or provision. Yet much of her 2014 Statement has been transferred to her draft EHC Plan.

The LA also tried to remove the references to “on-site” therapists which we see as a step towards changing her placement post 16 (could they try to do this earlier?) that we won through an expensive and stressful tribunal. The independent specialists wrote her Statement back in 2014 hence our reluctance to let the council ignore its recommendations.

Is a transfer to EHC Plan intended to be such a major review of, and opportunity for the LA to pare down, a child’s statement needs? The LA are now saying that they will just issue a final EHCP and we will have to appeal if we are not happy with the content.


Helen Gifford replies


The EHC transfer process is intended to lead to a new document, following a full EHC assessment of a child, rather than a copy and paste exercise from a statement of SEN. So, the authority should have sought advice from you, the school, an educational psychologist, medical advice and social advice as part of this transfer process, unless you agreed with them that some or all of the existing advice was suitably up to date and sufficient. This is in regulation 6 of the Special Educational Needs and Disability Regulations 2014. Government ministers have consistently been clear that the changes to EHC plans were not intended to reduce provision.
Now in practice, despite this legislation, this new assessment is often not happening on transfer to an EHC plan, and local authorities are simply copying large parts of statements across to EHC plans and are not seeking the required new advice, or seeking parents' agreement that existing advice is sufficient. It sounds as though this is what your authority has chosen to do, but are also taking the opportunity to remove information that was ordered by the tribunal. I note that your authority is claiming that there is no evidence to support the parts that they have removed, but there must, of course, have been evidence for the tribunal to have ordered these things to be in the statement. So, I would suggest turning the question on its head, and asking your authority to explain why they think that these things that were needed in 2014 in needs and provision, are no longer required, and to produce their evidence for this stance. After all, if your daughter's needs have changed such that the special educational provision that she requires has changed, the authority must have evidence that shows that to be the case, and if they don't, then they have no justification for reducing provision or not referencing those needs.
There is also a clause in regulation 6 that requires the authority to seek advice from any person that you reasonably request they seek advice from, so you could direct them to this, and if there are appropriate practitioners whose advice has not been gathered in the review papers and would support the continuing levels of special educational provision, ask that the authority seeks advice from them.
The authority can decide to issue the final EHC plan at this stage, despite these obvious difficulties with it. As you know, that will, of course, give you a right of appeal, although I do understand that you do not want to go through that process again. In that case, it may well be worth considering mediation as that structured conversation supported by a mediator, can actually be quite helpful. If the authority does not have evidence to support the reductions in your daughter's needs and special educational provision, then using a mediation to pursue that conversation might produce some progress for you.
It also worth noting that the authority is way over the statutory timescales for completing an EHC plan transfer having taken 18 months to do a job that should take more than 5 months. Given that, and the other failures in their EHC plan transfer process, it may also be worth considering making a formal complaint to the local authority.