EHCPs and the uphill struggle for justice


A guest post by Rachel Amos, co-founder of Support SEND Kids

Amos: Access to justice issue

The staggering truth behind the education system supporting children with special education needs and disabilities (SEND) is that 80% of SEND children don’t receive the regular in-school support they need.

How is this possible? Unfortunately, the system established to provide SEND children with the educational support they need, allegedly designed so as to be ‘self-serve’, only complicates the process.

In the words of the House of Commons’ education select committee, navigating the SEND system is a “bureaucratic nightmare”.

Whilst all SEND children are legally entitled to a vital education, health and care plan (EHCP), all too often parents are forced to resort to legal action to attain the support their children need.

As of January 2021, in a school population of 8.9m pupils, there were more than a million with SEN support but only 326,000 with a contractually binding EHCP.

The EHCP is produced by the local authority and sent to parents with a two-week window to ‘agree’ it. If the EHCP does not adequately cater for the child’s requirements, a lengthy, gruelling and expensive tribunal is required and precious time is wasted in the child’s crucial development years.

It is no wonder that parents struggle. Caroline Withers, legal director commercial at Virgin Media, said she has been “horrified by the EHCP system” – if this process is obscure to a high-profile commercial lawyer like this, what hope do ‘regular’ parents have?

In any other contractual negotiation, safeguards might be put around what is clearly an unequal bargaining position. For example, in employee/employer negotiations, the strength of the employer is taken into account throughout any negotiations around the format of employment contracts and any termination of employment (when separate representation for the employee is paid for by the employer).

Nothing like that happens in this unequal bargaining situation: documentation is not standardised and representation is not available except at parents’ own cost. There is a distinct lack of legal aid available to parents going through this process too, who can incur frightening bills driving a tribunal process to the end.

This feels like a huge waste of money when there is a 95% likelihood of parents’ success. These costs are also unrecoverable, unlike normal litigation where the risk of bearing the other side’s costs is a driver to settle.

The lack of legal aid creates not only a David and Goliath situation, but an access to justice issue.

Due to unaffordable costs, lawyers are inaccessible to many parents, who then go to tribunal themselves. Unlike, say, mediation for divorce, this simply puts families into a one-sided negotiation.

The local authority is represented by a solicitor who has done these many times before, but the parents are (hopefully) on a one-time journey. Knowledge to manoeuvre the process is stacked against the family.

In a couple of cases, parents have even reported that local authority solicitors mis-represent the views of other key parties who are not in the tribunal (for example, the school or the author of a medical report).

There is an element of gamification using the hearsay of who is not in the room. Again, this is not usual in litigation and for good reason.

This is why Support SEND Kids has launched a free-to-access online platform that provides parents with the necessary resources needed to navigate the EHCP process smoothly.

SEND legal experts, healthcare professionals and special educational needs coordinators (SENCos) have all donated their time pro bono to create a searchable pool of answers for a community that has long been burdened with trying to piece together a fragmented and inconsistent system spanning over 400 local authorities.

As an industry first, the platform also hosts the first digitised version of David Wolfe, QC and Leon Glenister’s definitive guide to special educational needs law, the ‘Noddy Guide’.

In the words of SEND parent Victoria Fox: “The EHCP process was one of the most exhausting, difficult things I’ve ever done. There are a huge number of organisations doing great work but navigating all the resources is a challenge in itself. A one-stop-shop service like this will be so valuable.”

As such, the authors have worked to turn the Noddy Guide into bite sized Q&A so parents can quickly identify the section most relevant to their particular circumstances.

The current state of the EHCP system means that children are too often shut out from the support they need. Parents are forced to enter into unequal contract negotiations where the normal checks and balances aren’t applied, whilst trying to protect what is a legal right for their child.

Something has to change, and whilst systemic innovation is still behind schedule, we need to help parents fill the resource deficit.

Backed by leading law firms such as Reed Smith, Support SEND Kids hopes to be part of the solution and deliver on our fundamental belief, that every child has the right to learn and develop to their full potential.

We need to stop the unnecessary waste – the waste of children’s time and the waste of parents’ money to give them what they need now. With your support, we can give more to those who need help.




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