Guide

Education Health Care Plans (EHCP's): how to prepare for the annual review process

Gateley Legal

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In this episode, Catriona Attride is joined by Sarah Fitzgibbons, a specialist in Special Educational Needs and Disability (SEND) law. Together they provide an overview of the annual review process and explain how, as a parent, you can best prepare for the annual review meeting.

Listen to our latest episode:

In this episode:

  • We provide an overview of the Education Health Care Plan (EHCP) annual review process and what parents can expect to happen at the annual review meeting.
  • We outline the reasoning behind an EHCP annual review.
  • We discuss the benefits of the EHCP annual review process.
  • We outline who is required to attend an EHCP annual review.
  • We discuss the preparation that should be done prior to an annual review meeting.
  • We provide an overview of the parent's role in the EHCP annual review process.
  • We provide insight into the challenges parents face during the EHCP annual review process and provide insight into how they can overcome these challenges. 

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This episode is part of our Talking family and wealth podcast series. Learn more about the series and what we cover. This podcast is available on iTunes, Spotify and Soundcloud.

Read the transcript:

Catriona Attride: Welcome to Talking Family and Wealth, your straight talking guide to dealing with matters that are at the heart of the family in terms of planning for the future and protecting assets and resolving difficulties that might arise in family relationships. My name is Catriona Attride, and I am a private client lawyer with over 20 years of experience supporting clients in their estate and tax planning. In each episode, I'll be joined by an expert and together we'll lift the lid on how best to handle everything from inheritance to divorce. Along the way, we'll share some of the situations we've encountered some good, some bad and many ugly, but all useful in helping you to protect your family and wealth.

Welcome to Talking Family and Wealth. Today I'm joined again by Sarah Fitzgibbons to talk to us a bit more about EHCPs. Welcome, Sarah.

Sarah Fitzgibbons: Hi, Cat. Thanks for having me.

Catriona Attride: Thank you for joining us. So a couple of weeks ago, we talked about EHCPs for children with special educational needs and you talked us through the process in terms of how we apply for those and what is involved. And one of the things that cropped up in that was you mentioned about annual reviews. So we talked about the fact that once you've got your EHCP, it isn't just then there and put in a cupboard and forgotten about. And there is a process to look at it at least annually and review where things are and whether things have changed for the better, for worse, et cetera. And it's an opportunity for both the local authority and the family to review provision. And so today I think you're going to talk to us in a little bit more detail about what is involved with an annual review. So perhaps if you could sort of start at the beginning, which is always a good place to start, isn't it?

Sarah Fitzgibbons: Okay, thanks, Cat. Yes, so an annual review is, as you say, the opportunity for the local authority and the family to have a look at the terms of the EHCP and decide whether that EHCP still reflects the needs of the child and whether it still reflects the provision which the child needs for them to be able to access education equally and to meet all the needs that the EHCP says the child has, and that the child currently has. And it's a really useful process, but obviously for a family it can be fairly daunting and can feel fairly onerous because sometimes people have spent a long time getting the EHCP in the first place. It's taken 20 weeks to do that. And then it feels that very, very quickly, suddenly they're having to start to think about looking at it all over again. It's an annual review. And there is a fair bit involved, so I can understand why sometimes it can feel a bit onerous for people. But it is a good opportunity to relook at everything and make sure your child is still getting everything that they need for the next stage of their education the next year.

Catriona Attride: And who instigates it? Do the local authority automatically diarize and it happens, or is it one of those things that you as a family have to nudge them on?

Sarah Fitzgibbons: Yes, again, I would say that the best thing to do is for families to be mindful of when that annual review should be taking place. The law is a bit different. So the law says that local authorities should be informing schools of the children who need an annual review in the next term. And it is then the responsibility of the school to put the initial meeting, which is part of the annual review process, into the diaries of every body that needs to attend and for the school to essentially gather the information which is needed for that meeting. That, I would say more often than not, doesn't happen like that.

Catriona Attride: No.

Sarah Fitzgibbons: You may have a school that are a bit more hot on what needs to be done, and they do instigate things themselves. But really the better approach, as I think with all of these things, is always for a family to diarize essentially a couple of months before the end of the 12 month period that would be 12 months from the date of your child's EHCP, and to start talking to school at that stage about the fact this annual review is coming up. Because that then will give school the chance to get their act together and to make sure that the meeting itself is diarized and that people are actually available to attend.

Catriona Attride: And who does attend?

Sarah Fitzgibbons: Again, it will be very much dependent upon the needs of the child. So certain people who must attend would only really be the school and the family and property representative from the LA, but written advice must be obtained for the purposes of that annual review and that is something that has to be provided two weeks in advance of the meeting. And that should be written information from the family themselves, written information from the head of the school the child attends, from the SEN officer of the local authority, a health care professional who is responsible for meeting the needs of the child in that area, and an officer from the local authority from the social services side of things if the child is receiving social care support. So all of these written bits of evidence about what the child currently needs, whether the outcomes set out in the EHCP have been achieved or partially achieved as a result of the support the child has received across the previous year and what needs to be done going forward should be set out in those written bits of advice.

Catriona Attride: So it sounds like a good opportunity, if nothing else, for the family to have a proper discussion with those involved in the provision for the child to really look at where they are and what's happening moving forward in quite a formal setting.

Sarah Fitzgibbons: Yes, exactly. And it's a great time for a family to be able to really look back at the EHCP and take a view about how they feel things are going and what they feel is needed to do for the next year and in advance of the actual meeting, to speak to the people who are delivering care whether that's therapy or teachers of school, and to make their own decision about what they feel is necessary. Whether the school is still the appropriate school could be another thing that they might want to think about. And even though the written advice that is set out in the regulations only needs to come from those people that I've just mentioned, there's absolutely no reason why, if a child is supported also by an occupational therapist or speech and language therapist, or as an example for my daughter, a qualified teacher of the visually impaired or a habilitation officer, why parents can't ask for those people to also provide a written report. Because if under an EHCP a child is receiving support from lots of different therapists and teachers, it would make sense that all of those people will have something useful to say in terms of how the EHCP is working for the child and what might need to happen over the following year.

So again, even though the rules only specify those people, families are in a position to take control of the process themselves and ask those other people to produce some helpful information. And any of those people could also attend the meeting if families felt that it was important that they did.

Catriona Attride: Yeah, and I suppose when you first get your EHCP, it could well be that it's not tried and tested at that point, is it? So a year in, everybody knows where they're at and you can then look at, "Well, do we need a bit more?" So if there hasn't been the right provision or enough provision, you can look at trying to extend it, I suppose. The counter would be ...

Sarah Fitzgibbons: Absolutely.

Catriona Attride: If things have been better, the local authority might be pushing for to reduce it. But it's a good time to actually say, "Right, well, this is what we thought we needed. And now this is what we know we need."

Sarah Fitzgibbons: Yes, that's absolutely right. And it is often the case, in fact unfortunately, that local authorities are looking to reduce provision. And again, that's why it can be really helpful to make sure that you've got all of your evidence lined up in advance of that meeting in order that you are able to demonstrate why a reduction in provision isn't appropriate if you feel that is the case. And if there are particular things that you're wanting to achieve, like extra provision around different areas, to again be able to evidence why that is going to be appropriate for your child and why that's going to help them.

And sometimes the outcomes in an EHCP can be helpful for that reason. So there is a section E in the HCP, and that is essentially a list of outcomes that if the child's needs are met by the provision in the EHCP, those outcomes should be achievable for the child. And so if you get to an annual review and you look at those outcomes and actually the child hasn't achieved those outcomes, then that is another way of evidencing that the provision in the plan isn't necessarily doing what was expected.

Catriona Attride: So there is something actually measurable within the EHCP that you can set your stool against, right?

Sarah Fitzgibbons: Yes, there is. But again, families have to be a bit careful about that because often local authorities will want to focus on just looking at an annual review on the outcomes and nothing else. And it's important that families realize that the purpose of an EHCP isn't just to go through a tick box exercise of saying, "Has my child has met this outcome or not?" It is really a holistic process of them being able to look at the whole document including whether the school remains appropriate. And it's a chance to sort of pick over absolutely everything in there so that you can feel confident that over the next school year, your child is going to get the support they need.

Catriona Attride: Because I suppose also, you might have reached the outcomes in that particular year, but the reason you've met those outcomes is because of the support.

Sarah Fitzgibbons: That's absolutely right.

Catriona Attride: And if that's not going to stay, you're not going to meet the outcomes the next year, are you? Because it's not normally the case that you've got needs and therefore, "Oh, right, I'm cured now."

Sarah Fitzgibbons: That's absolutely right. A good EHCP will have a range of outcomes, so short term, medium term and long term outcomes in there. But you're absolutely right that a local authority sometimes will want to focus on, "Oh, well, fantastic. Your child has met all these outcomes. No longer need any EHCP provision." And that obviously is something that we would want to want to avoid.

Catriona Attride: You've got to be prepared, haven't you?

Sarah Fitzgibbons: Yeah, absolutely. But again, the legislation really supports families in being in the driving seat in these things and having a seat at the table, which is why the law says that written advice from parents is part of the process. So again, the most important thing is always to remember that you are an active and essential part of the process and not to sort of feel that you're a bystander in what's going on.

Catriona Attride: Yeah, so again, the key is preparation, isn't it with the things? You need to go into these meetings fully armed and ready.

Sarah Fitzgibbons: Yeah, absolutely. But I understand as a parent of a child with SEND that being fully prepared and having everything lined up for these meetings and then having to review after the meeting the next draft EHCP that arrives and then negotiate that with the local authority and then potentially end up at another appeal if it's not what you want, is extraordinarily stressful, sometimes worrying and upsetting and also a time consuming process that is relatively complicated because we're essentially talking about a legal process. And again, that is why families might want to talk to somebody like me about these things, because it's not something that you can sort of spend five minutes on it. It can become a full-time job for a few weeks.

Catriona Attride: Yeah and I think that's it, and it's a yearly commitment, isn't it as well? So for a period of time every year, you're having to go through this stress and anxiety of not knowing what's going to happen. And then also all the time you're having to put in to make sure that you've got the best shot at it. And like you say, even when you've done the appeal, you've then got to make sure that the EHCP that comes out and not the appeal, sorry, the annual review you've then got to make sure that the EHCP that comes out of it is correct and appropriate moving forward.

Sarah Fitzgibbons: Yeah, that's right. And there's various steps in the legislation towards that draft coming out. So after the meeting that everybody gets together, the school are obliged to produce a sort of essentially a meeting note that sets out what's been agreed. And obviously sometimes there can be a dispute about if that note is actually reflective of what everyone thought had happened. And then the local authority after that note comes out, have to produce either an updated EHCP or say that they don't believe an EHCP is any longer needed or to say that the EHCP stays as it is. And most of the time, again, it will be most helpful if the family actually presses the local authorities or ask schools to do the same. Because what I hear incredibly often is that the annual review meeting will take place and families assume that whatever was discussed at that meeting is then the provision their child is going to get going forward. But actually, unless and until the EHCP is amended and signed off by the local authority, whatever has been discussed at that meeting is entirely irrelevant because unless it's in the EHCP, your child is still the provision from the ... yeah.

Catriona Attride: Right, yeah. So it's actually not worth the paper it's written on until it's in the EHCP.

Sarah Fitzgibbons: Yes because the annual review process actually only comes to an end when the local authority have either produced an up-to-date EHCP or said they're going to stop the child's EHCP provision or they say that they don't need to produce another one. That's the end of the process. But often that isn't something that families are aware of. It's entirely understandable because they don't need to be aware of that if they went away and wrote all the law.

Catriona Attride: Yeah, yeah, absolutely, absolutely. A lot to think about, isn't there?

Sarah Fitzgibbons: Yeah there is a lot to think about. But again, done well, it's a positive thing because it's allowing your child to have everything they need for the next year of school. But it isn't something to go into lightly necessarily, because we do hear horror stories about children who have very clear and very significant needs and local authorities just saying, "Oh, well, we don't think we need to provide for you anymore. Thanks very much. That's the end of that." And trying to take away EHCPs or reduce provision. And then of course, you're then into the process of looking to appeal the decision again, which is another thing that can cause a real problem.

Catriona Attride: Absolutely. And we are going to talk again at a later date on the whole appeal process.

Sarah Fitzgibbons: We are.

Catriona Attride: Because that's quite a wide ranging area, isn't it?

Sarah Fitzgibbons: Absolutely.

Catriona Attride: And is it appropriate for a family to have a representative, a legal representative, with them at the annual review meeting? Or can they not have representation? Do they have to just do it themselves?

Sarah Fitzgibbons: Families are entitled to have somebody with them. Often that won't be the case, but yes, you can have somebody with you. I suppose there are considerations around the sort of the practicalities, but also how that's going to be helpful or not in that situation. So it may be the case that for the annual review meeting itself, in a particular situation it may be decided that it would be appropriate to have somebody with a family, or it might be a better decision for the family to be there and to try to work collaboratively for the purposes of the meeting but to have support around the meeting. And I think each situation may be different depending upon what the family feels is needed for the next stage of education.

Catriona Attride: Because is the decision actually made at the review meeting. Do the local authority say there and then what they think the outcome is?

Sarah Fitzgibbons: No.

Catriona Attride: Or do they then go away and come back and say and tell you?

Sarah Fitzgibbons: Yeah, so often at the meeting, all that will happen is that you will have people involved in the child's educational therapy talking about where things are, what they think is needed going forward. And the local authority representative is often just sitting there listening. And they will go away with all of that information. That's not to say some things may be discussed and agreed, but the local authority are not going to be held to that until it's actually in the EHCP itself.

Catriona Attride: Yeah, so you might get an idea during that meeting.

Sarah Fitzgibbons: Yes.

Catriona Attride: But actually, they will come back to you with their version of the new EHCP.

Sarah Fitzgibbons: Exactly, or to say it doesn't need to be changed or it's going to be stopped.

Catriona Attride: Yeah.

Sarah Fitzgibbons: Yeah. So sometimes a family may go into a meeting already really being very clear that the relationship with school has broken down, the relationship with the local authority has broken down, and that they're looking for their child to be moved to a different school and that they have good evidence to support that. In which case, they may feel it appropriate to have somebody with them because they may find it just too difficult to actually deal with that meeting themselves.

Catriona Attride: And it's very emotional, isn't it?

Sarah Fitzgibbons: Absolutely.

Catriona Attride: When it comes to your children.

Sarah Fitzgibbons: Absolutely. It's a lot. And if, during the previous year you have felt your child is either unsupported or they haven't been cared for very well or that nobody's actually interested in even looking at what your child may need, it can be a very difficult meeting to sort of maintain your composure. And if what you're trying to do is something quite complicated like look for a new school or significantly increase provision in circumstances where you know school and the local authority are going to be quite opposed to that, you may feel it would help to have somebody with you. However, it may be that in a different environment, you know that actually having that extra person with you is going to make the meeting even more combative and that you might want to go armed with some ideas from a lawyer or just stuff that you've written done in advance yourself if you don't need a legal representative, and deal with it in that way. It will be very much dependent upon the circumstances.

Catriona Attride: Okay. Okay. And are there any other tips that you can give people for the review process?

Sarah Fitzgibbons: I think what we've already discussed is the most important thing to know, that you are vital as the family and that you have so much to bring to the process and you can make the next draft of the EHCP really useful to your own child if you really are actively involved in the process or have a school that are very helpful. But it's a lot of time commitment.

Catriona Attride: So I think what I'm taking from this is that the EHCP has kind of got its pros and cons in the review process, in that you're having to possibly face defending what you've already got and keeping in the funding you've got or the provision you've got or maybe needing to go in for more. But also that there can be some positives that come out of this in terms of using the process to really tailor and tweak the plan to make sure that it is meeting the child's needs and continues to do so in each academic year.

Sarah Fitzgibbons: Yes, absolutely. And I think the other thing to remember is that if at any time during the school year a family feel that things are not going well, you can seek to do one of these processes early and there is a way of doing that. So, I suppose that's of some comfort to think that throughout anytime at school, if you're just feeling it's just not working, you can always start this process.

Catriona Attride: Which I suppose is good in case of, you've got your first EHCP and perhaps it just wasn't going, it isn't meeting needs, it isn't working for whatever reason because of the child or whatever. So you have got the opportunity to revisit it early. You haven't got to wait the full year if you're getting to crisis point.

Sarah Fitzgibbons: Absolutely.

Catriona Attride: Which I think is really useful. Well, Sarah, thank you so much again for your time. As I mentioned, we are going to talk in our next podcast about the appeal process, which I think people will find really useful. But in the meantime, if anyone listening to this podcast has any questions, contact Sarah, because I think you can tell, she knows a lot on this subject and is always happy to answer questions from clients. So Sarah, thank you for joining us.

Sarah Fitzgibbons: Thank you very much again, Cat.

Catriona Attride: And I'll speak to you again soon. Thank you.

Sarah Fitzgibbons: Thank you.

Catriona Attride: Thank you for listening to Talking Family and Wealth, to find out more about the series. Please visit Gateleyplc.com/talkingfamilyandwealth. From here, you can subscribe for all updates, meet our speakers and get more information on all of the topics being discussed.

Gateley Plc is authorised and regulated by the SRA (Solicitors' Regulation Authority). Please visit the SRA website for details of the professional conduct rules which Gateley Legal must comply with.

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