Inclusion Now 68

Legal Question

This legal question was posed by ALLFIE’s Michelle Daley and answered by Bethany Parr, Simpson Millar Solicitors

Our 14-year-old daughter, Billie, uses a powered wheelchair and ventilator for respiratory support. We live in rural Yorkshire and, along with her two siblings, she actively participates in her local secondary school, and community activities. Billie enjoys school and has a sociable group of friends. She’s expressed a keen interest in a career within the Disabled People’s Movement as a Researcher. This passion stems from Citizenship lessons that included a visit to a Disabled People’s Organisation, where the class learned about the contributions and achievements made by Disabled people in the UK.

Recently, Billie has experienced a change in healthcare needs during the school day, and her current Health Budget, as part of her Education, Health, and Care (EHC) plan, no longer meets her needs. We approached our Local Council for an increase, but they refused, asserting that Billie’s needs could be met more economically within a special school setting for children with “complex medical needs.” The Council has stated the decision has immediate effect and all existing support in her current school will stop. We are devastated by this decision and feel it’s an injustice. Can you advise us on our rights to advocate for Billie to remain in her mainstream school, while concurrently challenging the council’s refusal to increase the Health Budget?

“The local authority (LA) and the responsible health body (RHB) have a duty to secure (and fund) any special educational or healthcare provision in Sections F and G (respectively) of Billie’s EHCP unless and until it is amended. In addition, the school named in Section I has a legal duty to allow Billie to attend, and there are additional legal duties on schools to support pupils with medical conditions, and make reasonable adjustments for Disabled pupils. If the LA refuses funding to allow Billie to access the educational provision she is entitled to, or the school refuses to allow Billie to attend, you should seek legal advice about a claim for judicial review and/or disability discrimination. The EHCP trumps any statement by the LA that funding will be ceased or similar.

As Billie’s healthcare needs have changed, it would be sensible to ask the school to hold an emergency review of Billie’s EHCP (if one hasn’t already taken place) to discuss the provision that she requires. Following this meeting, the LA must issue a final EHCP within 12 weeks, giving you at least 15 days to comment on a draft. Draft EHCPs do not include a placement, so you can express a preference for a different school at this point if you wish.

For children with EHCPs, there is a legal presumption in favour of mainstream education if this is what parents want. The LA must specify mainstream education in Section I of an EHCP unless a) this would be against parental wishes, or b) educating the child at school would detrimentally affect the education of other students (and there are no reasonable steps that could be taken to prevent this). Importantly, a LA cannot refuse to name a mainstream school on the basis of costs alone.

Billie’s EHCP should set out her healthcare needs which relate to her SEN in Section C. If healthcare provision does not ‘educate or train’ a child, but is reasonably required, it should be included in Section G. The RHB must agree if healthcare provision is to be included in Section G; however, if it does, it has a legal duty to secure/pay for it. If healthcare provision is needed to educate/train, it may be deemed to be special educational provision which should be included in Section F. If healthcare provision appears in Section F, the LA must secure/pay for it.  A failure by either body to secure provision in these sections could give rise to a judicial review challenge. Legal Aid may be available for these cases.

If Billie’s EHCP is amended, you should get a right of appeal to the First-Tier (SEND) Tribunal. The Tribunal does not have power to determine whether healthcare provision is included in an EHCP, unless it deems it to be educational provision. It can, however, make non-binding recommendations to the RHB.  This is a longer-term solution as Tribunal appeals take time.

You may also want to consider applying for an assessment for NHS Continuing Care as this may entitle Billie to additional support, dependent upon the nature and extent of her health needs.”

This legal question was posed by ALLFIE’s Michelle Daley and answered by Bethany Parr, Simpson Millar Solicitors