Inclusion Now 65

Legal Question

This Legal Question was posed by Joe Whittaker and answered by Emily Chalk, Simpson Millar Solicitors

“My 13-year-old son, Noah, has an Education, Health and Care Plan (EHCP). However, his health and social care managers do not agree on who should be funding the essential (overnight) support at home and at school that he requires. The manager responsible for the education aspect of the plan appears to ‘stand back’ and allows the disagreement to continue. This means Noah is not getting the essential support he requires at mainstream school. It has reached the point where we need to pursue a legal case. We cannot afford to fund this, but my husband and I have been means tested based on our assets and are unable to receive legal aid. Who has the lead authority for delivering the EHCP, and is a Disabled child entitled to make a claim for legal aid in their own right? Thank you, an exhausted and overwhelmed parent”

First of all, I am so sorry to hear you are exhausted and overwhelmed. We know first-hand how demanding and tricky the process can be, particularly for a parent with a child labelled with special educational needs.

Different government bodies are responsible for delivering different sections of the EHC plan. It will depend on where the provision is named in the plan as to who the responsible body is. Each provision must be specific and quantified in order to be enforceable. If not, you may need to appeal the plan to the SEND Tribunal following an Annual Review in order to ‘firm up’ the wording which would then stand you with a better chance of holding the relevant body to account.

If the provision is named in Section F (the Special Educational Provision), the Local Authority is responsible for securing the provision named in the plan. If they fail to do so they may be subject to challenge by way of Judicial Review proceedings.

These are proceedings made in the High Court. There is Legal Aid available for issuing Judicial Review proceedings subject to the means and merits assessment (explained below). For this type of action, funding would be applied for in your son’s name although there are usually requirements to take action to try and resolve the issue prior to securing legal aid. A solicitor would be able to advise you on the facts of your specific case and the availability of funding. It is possible that you would need to fund some limited work before securing funding.

If the provision is named in Section G (Health Provision), responsibility for providing this provision would be the commissioning health body. This is likely to be the local health body, known as Integrated Care Boards (“ICB”) (previously CCG). They can also be challenged by Judicial Review in the same way as the above.

If the provision is named in Section H1 or H2 (Social Care Provision), the situation is slightly more complicated, and provision cannot be enforced simply because it appears in the plan. Failure to provide for necessary social care needs can still be challenged by way of Judicial Review proceedings but you would need to show that the LA had assessed the provision as necessary. Although inclusion in the EHCP is indicative of this, it is not determinative. A solicitor would be able to advise you on this.

Ultimately, the relevant bodies need to work together to ensure they are meeting your son’s needs. It is unacceptable that Noah is not receiving essential provision simply because of a disagreement over who is to fund such provision. Although the question of who is responsible could be a tricky one, it is not for you to know the answer. The Local Authority and other agencies need to work this out between themselves.

If it is not clear that the EHCP entitles your son to the provision, then you may need to consider appealing the EHCP to the Special Educational Needs and Disability Tribunal. Availability of legal aid for these types of actions is based on the parents’ means rather than the child’s. There are many charitable organisations that may be able to assist in such circumstances though the situation is less than ideal.

This Legal Question was posed by Joe Whittaker and answered by Emily Chalk, Simpson Millar Solicitors