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Friday, 22 July 2022 18:25

The Path to an Education and Health Care Plan in Kent

This article follows a previous, entitled Kent County Council’s special-education system is on its knees. It looks in more depth at matters relating to children with Special Education Needs and Disabilities (SEND) in the first of four planned articles and focuses on the process of applying for an Education and Health Care Plan (EHCP), which give children with high levels of SEND a statutory right to specified levels of support. I don’t go into detail as the excellent educational charity, the Independent Provider of Special Education Advice (known as IPSEA), takes parents through the process comprehensively, with advice at every point, see below.  I follow this up with data reporting on success rates at various stages of applying for EHCPs in Kent last year, and the outcomes of the Mediation process available where there is initial disagreement. I also look briefly at the dreadful record of KCC's performance as measured by the 2019 Ofsted Inspection, and its failure to deliver EHCPs in a timely way.

This is a continuation of a subject I began before I announced my retirement, and so I shall be following it through. The article will be followed in Part Two by an analysis of the EHCP appeals process  through to Tribunal outcomes, also looking at the considerable misinformation circulating about such matters. KCC has been very helpful in providing information for this and I have a large amount of material to explain the reality. Part Three will look at the placement of children with EHCPs in mainstream schools, Specialist Resource Provision (primarily SEND Units) and Special Schools. The final part will re-visit the number of placements in private schools in Kent and private and state schools outside the county, as I have now resolved a major discrepancy between numbers in the public domain and uncovered further detail.

Update: This is the 1500th article of information, advice, news and comment, since this version of the website was launched in  2010. It opened with a group of newspaper articles I had written, including: SEN Unit Review: KOS February 2010  This one focused on my initial exposure of  the planned removal by officers of all Kent's SEN Units and finished with a warning which read: 'Meanwhile KOS reported last week that many children coming up to secondary school transfer have found their proposed Statements of SEN have been delayed' - Nothing changes!

Introduction
There has been an explosion in the number of EHCPs awarded nationally and in Kent over the past seven years. During this period, the number of young people holding EHCPs rose in Kent from 6,884 in 2015 (when most awards were for Statements of Educational Need, now phased out and replaced by the EHCP) to 17,733 in January 2022. This has placed enormous pressure on the system throughout, exacerbated by the severe budgetary constraints imposed on Kent County Council along with all Local Authorities (LAs), which is attempting to reduce costs in a number of ways as a result. The turnover of officers in the Department is high and morale is reportedly very low. This is only partly explained by their split function pulling in opposite directions, to support families through the process and to keep down the number of EHCPs awarded, which can see relationships become very fractured.

The quiet departure of Matt Dunkley, Corporate Director, Children, Young People and Education for KCC for five years is indicative of his contribution to the service.

KCC's Special Education Needs and Disabilities Director, Mark Walker, claimed in a Kent Online item that ‘parents have lost faith in the ability of Kent’s mainstream schools to meet their children’s needs’, explored further in the next two Parts. A contrary point of view is put forward in Jon Whitcombe’s open letter in my previous article, to be looked at in more detail in Part Three and points out that many if not most of the problems arise from the performance of KCC’s SEND operation.

Since my previous article, the investigative website Shepway Vox has published its own second article on the state of affairs at the three sections of KCC Children Services and Young People’s Directorate, which are responsible for SEND issues, namely Special Education Needs and Disability, and Integrated Children's Services itself divided into a further two sections: North and West Kent; and South and East Kent. 

Education and Health Care Plans
The invaluable IPSEA website has a major section on EHC needs assessments, which is divided into five parts and offers invaluable advice at all stages of the process: Asking for an EHC needs assessment; What happens in an EHC needs assessment; What to do when you receive your draft EHC plan; What to do when you receive your final EHC plan; and EHC needs assessment FAQs. Along the way there are draft letters for parents to use, to cover the main contingencies. The IPSEA advice is for parents to make their own request for an Assessment in most cases, which will allow them the opportunity to draw on the evidence of independent specialists such as educational psychologists, although many are appreciative of a supportive school carrying out the task.

The KM item also reports that ‘Currently, KCC turn down more than 25% of requests for EHCPs. This is some way off the reality, with over a third of requests being turned down in 2020-21, either by refusal to assess for an EHCP or declining to issue a Plan after assessment. The KHCP application outcomes are summarised in the table below, drawn from the KCC data provided. This follows the progress of requests for an EHCP for the year 2021-22. Numbers between stages are not consistent, as many cases cross over the beginning and end of each school year.   

Outcomes of Requests for Consideration of the
award of an Education and  Health Care Plan by
Kent County Council, 2020-21 
 Action and Decision  Number
Requests for Assessment by Schools  1347
Requests for Assessment by Parents 2567
Requests to Assess Withdrawn 52
Requests to Assess Declined 1143
Statutory Assessments Carried Out* 2933
EHCP Plans Issued 2899
Requests for EHCP Plans Declined 233
EHCP Plans Agreed 2940
 * Including Reassessments

1,143 requests for children to be assessed for an EHCP were turned down, and only 67 of these chose to appeal against the decision, perhaps a surprisingly small number. 

A KCC document sets out the process and timelines for delivering an EHCP. This makes clear that 'The process from assessment request to issue of the plan must take no more than 20 weeks', amplified by the IPSEA  advice here. There are also time limits of six weeks to agree to an assessment, and a further 16 weeks to issue a Plan. I am reliably informed that in order to keep to these limits, KCC too often currently issues an EHCP whether or not all the consultation processes have been completed. Two side effects of this pressure are first of all that KCC is issuing plans where they may not be necessary contributing to the large rise in numbers, and secondly, that these may not have an agreed content, leading to increased numbers for the mediation and appeal process. The figure of 266 appeals registered against the Contents of the EHC Plan for 2020-21 does not fit with the very high proportion of Plans agreed according to the table, so again, one must assume, this is partly the consequence of an overlap between two school years.

Delays in Processing Education and Health Care Plans 
A Report (Page 81 of the agenda items) to KCC's Children, Young People and Education Cabinet Committee in May, outlines part of the reason why, by July 2020, only 29% of EHCPs were delivered in line with statutory timescales. It confirms the shocking fact that 'Kent County Council remains subject to a Written Statement of Action (WSOA) following the Ofsted inspection of the Local Area in January 2019 which identified weaknesses in nine key areas. One of those areas was the ability of the Special Educational Needs and Disability (SEND) Service to deliver Education, Health and Care Plans (EHCPs) in a timely manner and to an agreed quality. The provision of an Educational Psychology (EP) assessment or advice for all children within a six-week timescale was a critical factor affecting delivery of the Council’s statutory duties'. In July 2020, the figures indicated that only 29% of EHCPs were delivered in line with statutory timescales. By July 2021 there was a backlog of approximately 450 children waiting for an EP assessment as part of their Education, Health and Care needs assessment. The Report, whilst offering plenty of explanation (excuse?), records that 'In 2020, an external provider was commissioned to provide additional EP capacity for the initial assessments required for EHCPs. This has reduced the number of initial assessments waiting over 20 weeks and brought KCC closer to meeting its statutory duty. It is predicted that by the end of July 2022, 80% of EP assessments will be completed within the six-week statutory deadline, assuming the number of initial EHC needs assessment requests remains within the range forecast' (That is around 800 not completed). There is no apology for the abject failure to allow this situation to arise and to support families desperately trying to fight for their children's futures. Too many have had to wait for months just to get an Educational Psychologist's report about their children's difficulties. These will sometimes create problems so intense that they can lead to permanent damage to the child's future, or even family breakdown. Mr Dunkley, Mr Abbott (both now happily departed from the scene) and Mr Walker, promoted to be responsible for this debacle, would surely have much to answer for if there was any accountability. It is hardly surprising that so many of these families find themselves in conflict with the Council over their children's education, as they learn from an early stage that they have to fight, fight and fight again (as I have so often advised despairing families) to secure an appropriate education for their children. The Council's ideas on ways forward from the problem (Page 84 of the document) hardly look promising. 
 
Note 27/7: As so often, I met today one of the many parents of families I knew whilst Chair of Governors at Ifield Special School. Her son is now 23, with severe learning difficulties, but has found an occupation with a future, after following the Ifield Link19 course for 19-25 year olds. Her first move was to thank me for the advice to fight, fight and fight again to secure his future! Coincidentally, the day before I met the lead officer in a small Local Authority with responsibility for the same area of work. He was shocked by my description of the situation in Kent. 
 
Next Steps
The IPSEA article also explains the parental right to appeal to the independent First-tier Tribunal (Special Educational Needs and Disability) if they are not happy with a Local Authority decision at any stage of an EHCP application, although it is probably best to seek first an informal review or else mediation. Overall, some 10% of all families who set out to request an EHCP were so dissatisfied with the outcome that they decided to take the often complex and expensive decision to try and reverse the decision at Tribunal. I make no judgement on this percentage, reasons ranging from that of most families simply doing their best for their children with Special Education Needs or Disabilities, to others trying to secure a KCC funded place at an expensive private school. KCC's view is that this is  'a tribunal system where most tribunal's results come down on the side of parents, that's a bit like the Japanese legal system', according to Kent Online, and I explore these outcomes in the second article in this series, to follow.  
 
Last year 187 cases were settled by KCC's Mediation Support Service designed to resolve differences informally; see table below. Anecdotally, this can also become a conflict as KCC officers strive to keep the number of EHCPs down. Many of the 393 families who were unhappy enough to appeal to a Tribunal for a different decision in 2021, saw their case concluded before a formal Hearing took place. The large majority of these saw KCC conceding the case, with smaller numbers of parents not following it through, also considered in the table. 
 
Successful Outcomes from Mediation
and Appeals Withdrawn 
  In Favour*  Withdrawn
  KCC Parent
KCC
Accepted
KCC
Conceded
2021-22** 13 57 12 75
2020-21 27 160 14 114
2019-20 22 148 11 142
2018-19 46 183 18 196
* Mediation often results in both sides conceding part of their position. This part describes outcomes by which either KCC or the parent has the majority of the decision in their favour (at least, that is my interpretation!). 
**To 5th July 2022. I suspect these figures are lower than previous years as many outcomes have not worked through.
 
It may be of limited relevance, but the KCC website informs us that: 'If your child does not get a needs assessment or EHC plan, find out who to speak to and how to pursue meditation'. Perhaps meditation is not the speediest way to reach a solution!
 
Final Thoughts 
It is hardly surprising that with the current pressures on schools and KCC limiting the support they can offer, many parents will quite understandably take whatever action they can to secure appropriate support for their children; hence the high numbers appealing against negative decisions through the Tribunal process. The high success rate raises more questions than it answers! I was once strongly criticised by KCC for writing in a national newspaper article that the system strongly advantages those with the resources to secure the best provision for their SEND children. My view has not changed.  
 
What I have not done is discuss government's role in this debacle, especially in relation to funding.  
 

 

Last modified on Monday, 08 August 2022 15:21

2 comments

  • Comment Link Monday, 25 July 2022 18:50 posted by Grateful Client

    Five years ago, you came with us to Tribunal, and won our case for us. We know our son would not have had the same chances at the wonderful Ifield Special School without your intervention and have followed KentAdvice ever since. So sorry for others who can't benefit in the same way since your retirement. PETER: Thanks for this, it is much appreciated. Sadly there is no one to carry on the role apart from expensive solicitors/barristers that I am aware of; so who looks after the interests of ordinary families?

  • Comment Link Monday, 25 July 2022 11:35 posted by Desperate Parent

    What a disgrace! We have been waiting the regulation maximum 20 weeks for our son's EHCP and have now been told a decision will have to wait until next term. We are watching his life chances nose dive as he is unable to cope with school and is now at risk of expulsion. This is because school refuses to put anything in place without EHCP. Peter, what do you advise. PETER: Not a lot, I am afraid. Below I say, fight, fight and fight again. Complain and keep complaining. Do not assume good will from what I am afraid is the opposition. Sorry I can't do more; sadly you are certainly not alone.

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