Children and young people with special needs across the country are being left without adequate support as local authorities struggle to complete important paperwork on time.
In light of this, the government is proposing to grant local authorities an extra four weeks in reviewing existing Education, Health and Care (EHC) plans for young people with special needs in a green paper.
This controversial move comes in spite of a landmark ruling from the High Court in March stressing local authorities must keep to existing time limits when assessing and reviewing young people with special needs.
Solicitor Dr Keith Lomax criticised councils after the judgement for their failure to comply with time limits.
He said: “Councils prosecute parents for failing to ensure their children attend school and argue that every day matters.
“Yet, they regularly delay for months in their duty to make sure children with special educational needs get the provision they must have.
“Children end up out of school for months. Mental health gets worse. Parents struggle to get suitable school placements. All because the council has delayed updating the EHC plans.”
What is an EHC plan?
An EHC plan is a legally-binding document detailing the special needs of a young person, up to the age of 25, who need additional resources on top of existing special educational needs support.
With an EHC plan, a young person can access aid like funding, speech and language therapy, and school transport.
They then must be reviewed within 12 months from the date of their issuing to make sure the plan is being followed and the young person is meeting their objectives.
Subsequent reviews must occur within 12 months of the previous review.
Across the country, the number of EHC plans issued has risen steadily since 2016.
This goes hand in hand with the rising number of young people identified as needing special needs support.
Contrary to popular belief, EHC plans cover more than just learning needs.
They can also cover emotional, social and mental health needs, hearing impediments, and other types of communication and physical disabilities.
The most common need being catered for by EHC plans is autism spectrum disorder.
Almost one in three young people with an EHC will have autism spectrum disorder as their primary need.
But not every young person with special educational needs (SEN) support requires an EHC plan.
As the graph above indicates, those with profound, multiple or severe learning difficulties are more likely to have an EHC plan rather than just SEN support alone.
This indicates that young people with EHC plans represent some of the most vulnerable and complex cases of special needs and disability.
How many EHC plans are issued on time in London?
Applications are made directly to the young person’s local authority, and the statutory time limit from the initial application to having a concrete plan in place is 20 weeks.
The national average of getting these applications done on time within these 20 weeks is 59.9%, for 2021.
Around a third of London boroughs are falling below the national average rate to complete EHC plans on time, according to figures from the Department for Education (DfE).
The poorest performing borough in 2021 was Hammersmith & Fulham which only managed to issue 21.1% of EHC plans on time.
A special educational needs coordinator working in Newham, who asked to remain anonymous due to the sensitive nature of their work, said: “In the end, it’s those vulnerable young people who suffer due to the failures of local government and through no fault of their own.
“For example, you have cases of children with autism spectrum disorder going into secondary schools with no support in place, having a difficult transition.
“When EHC plans aren’t done on time, parents can’t select schools of their choice, which undermines their trust in the education system, and children with special needs in mainstream schools won’t have access to specialist teachers.”
The best performing boroughs were City of London and Kensington & Chelsea, both at 100%.
However, City of London only issued one application, whilst Kensington & Chelsea only issued 62 plans, compared to the hundreds of plans that are issued by other boroughs.
Other boroughs that have consistently performed better than the national average rate since 2015 include Barking & Dagenham, Camden and Kingston.
But despite outperforming the national average rate, timeliness for each of these boroughs has been critiqued differently by Ofsted and the Care Quality Commission.
For example, Barking & Dagenham in 2017 were praised by a joint report in 2017.
The report stated: “The proportion of new EHC plans completed within the 20-week timeframe is well above the national average.
“Importantly, members of the EHC plan panel from education, health and social care are budget holders, so decision making is immediate and action is taken quickly.”
However, the same type of report in 2019 for Camden said: “Too many EHC plans are not completed within the statutory 20-week timescale.
“There are also delays in parents receiving information about annual reviews.
“These delays make it difficult for parents to contribute to annual reviews.”
Is getting a ECH plan a stroke of luck?
When EHC plans are refused, over a quarter end up going to an appeal tribunal.
This is where parents who deem their child in need of an EHC plan can appeal against their local authority’s refusal to grant their child extra provisions.
This step usually takes place after having exhausted mediation options between the parents and the local authority.
A 44 year old mother from Hounslow, who has asked not to be named, said: “Trying to get my son with autism and other learning difficulties an EHC plan was emotionally gruelling.
“Having our application refused left me feeling really hopeless, especially as money is a big factor in supporting him, so I decided to appeal against this.
“We were lucky, even though the whole process wasted an entire school year, some people can be waiting for even longer.”
The likelihood of an EHC plan application being rejected varies across the country, and in London, varies from borough to borough.
Again, City of London rejected the only request they received for an initial assessment, hence the high percentage.
The rejection rate for 2021 was much lower in boroughs in the north and east, with the exception of Hackney which was at 30.7%.
A young person is more likely to secure an EHC plan if their request for an initial assessment by a panel of experts has been approved.
In other words, this is if they manage to get past the first hurdle of getting properly assessed for their needs, it is likely they will not be refused an EHC plan down the line.
Camden was the only borough not to have refused a single request for an initial assessment from the years 2016 to 2020.
But this changed in 2021 when they refused 22.1% of requests for an initial assessment.
Camden was also anomalous in the national picture, as it was one of the local authorities that was least likely to refuse a request for an initial assessment.
The variation in refusal rates may come down to variations in access to funding which has an impact on available staff and resources that can help with the EHC plan applications process.
But what does this data mean for the people it affects most?
For a young person with special needs, where you live may play a big role in determining the likelihood of you securing an EHC plan.
Why can’t local authorities keep up?
The government’s ‘Right Support, Right Place, Right Time’ green paper suggested that there are ambiguities in the law of what the appropriate steps should be in providing the right care.
However, a leading legal charity for young people with special needs, IPSEA, disagree and stated in an official paper submitted to the government: “The green paper is based on the mistaken premise that there is currently a lack of clarity about what should be provided to children and young people with special educational needs and disabilities (SEND) and there is too much local discretion.
“This is false: the law is clear and specific, and applies in every local authority area in England.
“The SEND system is broken because it lacks local accountability. It is riddled with unlawful decision-making in local areas, with no negative consequences for local decision-makers – only for children and young people with SEND.”
A 2021 Ofsted and Care and Quality Commission report for Newham identified barriers when assessing the eligibility of young people.
Before a young person is granted an EHC plan, they need to be assessed by a series of professionals who may include psychologists, speech and language therapists and doctors.
The report found that some children in early years can wait up to eight months to be seen by a speech and language therapist.
The Newham-based special educational needs coordinator added: “The bottom line is all of this is happening because of cuts and not enough financial resources being given to councils for SEND.
“In an ideal world, every school should have a speech and language therapist on site, who are part of the EHC plan application process, as demand is increasing, but we just don’t have the money for it.”
How many children with special needs are being failed?
Lateness completing EHC plans is compounded with other failures in supporting young people with special needs, rendering this a complex issue that needs to be tackled on many fronts.
Current government data only reveals the tip of the iceberg, and it does not tell us anything about the quality of care provided by EHC plans and how they are implemented.
Therefore, there is very little data on how many of these young people attain their objectives and feel that their plan is working for them.
For example, the annual reviews are done differently in different London boroughs.
Yet, the DfE has not given an official explanation as to why this year’s data collection on annual reviews has been postponed for another year, sparking questions about transparency.
In Newham, EHC plans are renewed in phases, for example, from early years to key stage 1 and from key stage 1 to key stage 2.
The Newham-based special educational needs coordinator added: “My concern with this is if you’re in year two, you may have the same EHC plan provisions as you did in year one, but these are formative years for children and the differences are large.
“There’s probably a lot you can do in year two that you couldn’t in year one, so the EHC plan should be updated on that basis.
“It’s not just about throwing money at the situation either, it would be helpful to exchange knowledge between boroughs and to have a support network of professionals.
“Boroughs who are struggling can learn from boroughs that are dealing well with EHC plan applications.”
According to figures retrieved by the Bureau of Investigative Journalism this year, 43,000 young people in the country with special needs travel outside of their local area to go to school, with almost a third travelling long distances in private taxis.
The number of children who have been rendered educationally homeless across the country has increased by 5% from 2018, either having dropped out of mainstream school because their needs cannot be met or because they are still waiting for a place at a specialist school.
Many social media support forums and campaigns have been set up in wake of the EHC plan crisis calling for greater accountability and transparency from local authorities.
The existing data evokes a plethora of questions: How many objectives are met in those plans? How long do they take to be met? How many parents decide not to go ahead with applying for EHC plans despite the opinions of education professionals? Why do some parents back out of applying for them?
If such questions remain unclear for much longer, then the detrimental impacts of inadequate support for young people with special needs may paint a dismal future.