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The local authority (LA) has a legal duty to ensure that the special educational provision specified in an Education, Health and Care (EHC) plan is delivered to you and your child (this is set out in section 42 of the Children and Families Act 2014).
The only exception to this duty is if suitable alternative arrangements have been made. For example, you have made arrangements for you or your child to attend an independent school or college or education has been arranged at home through Elective Home Education (EHE) arrangements. In this situation the local authority stops having a duty to secure special educational provision in the EHC plan.
However, before this can happen, the local authority must satisfy itself that the alternative arrangements are suitable. This means considering whether the arrangements will support you or your child to make progress in achieving the outcomes specified in the EHC Plan and/or, if it is realistic that you can fund this arrangement for a reasonable period of time.
How does the LA “secure” or “arrange” this support?
If you or your child is attending a nursery, school or college, the setting will make the arrangements for organising the special educational provision in Section F of the plan, which may include provision or support from other services, such as specialist outreach teachers or speech and language therapists, as necessary. This would usually be overseen by the Special Educational Needs Co-Ordinator (SENCo) in the education setting.
If for any reason the education setting is not able to do this (for example, because they do not have the resources, money or expertise) then the LA must take steps and ensure the provision as set out in the EHC plan is made.
How do we know what should be provided?
This will be set out in Section F of the EHC plan. Provision must be detailed and specific and should normally be quantified, for example, in terms of times, frequency and who will deliver this provision. Section F provision may include provision delivered by health or care services if it educates or trains you or your child.
In some cases, flexibility will be required to meet the changing needs of you or your child but it should be clear how this may change.
What do we do if we are worried about the provision that is being made?
It is best to discuss any problems with your or your child’s teacher, SENCo or head teacher first, because often solutions can be found by working together. In many cases, the school will be able to share more information about the support that is being provided will reassure you. You might want to ask when the provision is being delivered during the school day, who is delivering it and how, and whether the school has received additional funding to support your child.
If you continue to believe your child is still not receiving the special educational provision specified in Section F of their EHC plan, please contact your local SEND Family Services Team.
If you would rather, you can also let us know your concerns using this Microsoft Form.
What will the Local Authority do when we raise concerns?
The SEND Family Services Team will record your concerns and ask what discussions have taken place and whether any actions have already been agreed.
They will then contact the education setting and discuss the reasons why the provision/support is not in place. This may include questions about whether settings are accessing the high needs funding available to them, whether specialist advice, guidance and training is needed for staff, whether there are staff sickness or recruitment issues impacting on the delivery of support or whether equipment is required. In addition, if the concerns relate to speech and language therapy, occupational therapy or physiotherapy which are set out in Section F usually provided by the NHS, an understanding as to why this provision is not being delivered.
We expect to have an initial response from the education setting within 5 working days.
What action will the Local Authority then take?
Resolving your concerns may depend upon the involvement required but you will be informed of the actions that the LA will take within 5 working days.
These are some of the possible outcomes:
- Advice is given about High Needs Funding arrangements to support the delivery of provision
- Inclusion Specialist Education Services provide advice and guidance to the setting and if they are not already involved, advise how the setting can request support with you or your child
- Contact will be made with Designated Clinical Officers (DCOs) regarding heath related therapy provision or Social Care Managers as appropriate to discuss how this can be provided, which may include securing this in a different way, or by the LA arranging this from another provider
- An annual review meeting is arranged at an agreed time with you to include attendance from Family Services Team and other practitioners involved with you or your child to review progress, provision and/or placement as appropriate to the concerns.
- Involvement of the LA’s Standards and Excellence Team, who support whole school development, or a request for support from the Regional Schools’ Commissioner
How will we know what the outcome of these discussions are and how our concerns will be addressed?
Following discussions with the education setting and liaison with any necessary services that are required to resolve your concerns about the special educational provision specified in Section F of the EHC Plan, the SEND Family Services Team will confirm any actions that are being taken, who is taking those actions and the deadline for the actions to be completed. These will be confirmed in writing.
What do we do if we are worried that the support arrangements that have been identified in the EHC Plan from Health (Section G) and/or Social Care (Sections H1 and H2) are not being made available?
As a first step, discuss the concerns with the practitioner who usually supports you or your child or you could ask for details of their manager and contact them too.
However, if this does not resolve matters and you or your child is not receiving the health and/or care provision specified in the EHC plan, contact can still be made with the local SEND Family Service Team. They will make contact with the service provider to make them aware of the concerns you have raised with the LA and ask that someone contacts you to discuss this further. This may be a manager within Social Care or the Designated Clinical Officer for the Clinical Commissioning Group (CCG).
The Local Authority has a duty to provide the social care provision specified in Section H1 and the local CCG is responsible for Section G provision.
What do we do if, after the LA has investigated and implemented the actions agreed, we are still not satisfied that the special education, health or care support specified in the EHC Plan is being delivered?
You should follow the relevant formal complaints process for the service or if you have already done this, you can bring your concerns to the attention of the Local Government and Social Care Ombudsman (LGSCO).
Further information about formal complaints is available through SENDIASS: https://www.suffolksendiass.co.uk/education/raising-concerns
These are not the only options, as you could apply for Judicial Review if the matter is serious or urgent. The Local Authority’s duty is to you or your child and can be enforced by mandatory order of the court following an application for judicial review. (R v London Borough of Harrow ex parte M  ELR 62.
Decisions about provision for children and young people with SEN should be made as soon as possible. In most cases this will be achieved by early years providers, schools, colleges, local authorities and clinical commissioning groups (CCGs) working closely together and agreeing what should be provided with parents and young people. However, where agreement cannot be reached, early resolution of disagreements benefits parents and young people and aims to avoid unnecessary stress and expense.
Disagreement Resolution is the process for exploring and addressing issues about any aspect of a child's SEN provision, including health and social care disagreements. It is intended to provide a quick, non-adversarial way to help parents and young people to resolve disagreements about any aspect of SEND provision. Disagreement Resolution is voluntary, independent, confidential and does not affect the outcome of a tribunal hearing. A parent or young person can ask for Disagreement Resolution at any time during the SEND process, even if you have already lodged a tribunal appeal.
Every Local Authority must make Disagreement Resolution services available to cover all children and young people with SEN, not just those with an Education, Health and Care plan (EHCP), and in Suffolk we have commissioned Anglia Care Trust to provide this for us.
Mediation arrangements apply to parents and young people who are considering submitting an appeal to the SEND Tribunal. Under Government guidelines, parents and young people must contact an independent mediation adviser before registering an appeal about EHC Needs Assessments or the SEN element of an EHCP with the SEND Tribunal.
Mediation can take place when the following decisions are made by the Local Authority:
- not to carry out an EHC Needs Assessment
- not to draw up an EHCP
- not to amend an EHCP
- to cease maintaining an EHCP
Mediation can also take place, if parents or young people want it to, after they receive a final EHCP or amended plan.
Mediation is confidential, without prejudice and privileged - what you discuss during mediation cannot be disclosed in court without consent. In Suffolk, we also use Anglia Care Trust to provide our mediation services.
The SEND Tribunal (you may also hear this referred to as the First Tier Tribunal or SENDIST) hears appeals against decisions made by local authorities in England in relation to children's and young people’s EHC needs assessments and EHC plans. It also hears disability discrimination claims against schools and against local authorities when the local authority is the responsible body for a school.
Parents (in relation to children from 0 to the end of compulsory schooling) and young people (over compulsory school age until they reach age 25) can appeal to the Tribunal about EHC needs assessments and EHC plans, following contact with a mediation adviser in most cases. The Tribunal hears appeals about:
• a decision by a local authority not to carry out an EHC needs assessment or re-assessment
• a decision by a local authority that it is not necessary to issue an EHC plan following an assessment
• the description of a child or young person’s SEN specified in an EHC plan, the special educational provision specified, the school or other institution or type of school or other institution (such as a mainstream school/college) specified in the plan or that no school or other institution is specified
• an amendment to these elements of the EHC plan
• a decision by a local authority not to amend an EHC plan following a review or re-assessment
• a decision by a local authority to cease to maintain an EHC plan
You can learn more about SEND tribunals on the Suffolk County Council website.