I recently went to tribunal regarding Occupational Therapy ( OT ) provision for my son and it was agreed that this would be provided annually for the duration of my son's primary school years.
The LA and health commissioners agreed to this in front of the Tribunal judge. Three months later, following transfer to Education, Health and Care plan and at the next annual review, OT are proposing discharge of my son from their caseload.
At this point, he will only be in year three. I have written to them highlighting the tribunal outcome, which they continue to ignore. What can I do?
Julie Moktadir, IPSEA CEO says:
Unfortunately, because an Education Health Care Plan is subject to an annual review, the LA is within its powers to amend the plan and to change, reduce or remove elements of the provision at that time. It is worth checking your tribunal decision carefully as we think it is unlikely that the tribunal would have ordered provision beyond the duration of 12 months for this reason. The existence in law of the annual review process effectively limits the tribunal to decide the issues on appeal to the next twelve months of a child's education.
If the LA does amend your son’s EHC plan following the annual review you will have a right of appeal against the new plan, and if you have evidence that he still requires OT it is likely that the Tribunal would order OT provision to be returned to the EHC plan.
In the meantime, until and unless the EHC plan is amended, the LA has a statutory duty to secure the provision specified in Section F of the EHC Plan (s.42 Children and Families Act 2014). There are resources about this on IPSEA’s website here: https://www.ipsea.org.uk/what-you-need-to-know/ehc-plans/final-ehc-plans-and-enforcement
We also have a model letter which you can use to complain to the Local Authority if the provision in an EHC plan is not being provided here: https://www.ipsea.org.uk/what-you-need-to-know/model-letters/model-letter-6
We should point out that we are assuming here that the OT provision has been specified in section F (the special educational provision section) of your son’s plan, rather than in section G, the health care provision. If OT is specified in section G of your son’s plan there is a duty on the responsible commissioning body to arrange the specified health care provision whilst it remains there. As there is no right of appeal against the contents of section G of an EHC plan you would need to appeal to have OT specified in section F. This is where we would usually advise therapies such as OT to be specified because of the explanation at section 21(5) of the Children and Families Act that “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).”