This type of appeal is where you disagree with the Local Authority's description of your child's needs under Section B of your child's EHC plan and/or the special provision listed under Section F.
Section B and Section F
If a child's special educational needs are identified in Section B then appropriate provision to meet each need must be specified in Section F.
It is often said that Sections B and F should fit together like a hand and glove. The 'hand' represents the various needs and the 'glove' is the provision that should match the needs exactly. Case law (appeals to the High Court) has confirmed this important principle. For more information see here.
Many Local Authorities issue EHC plans with a lack of clearly identified provision under Section F. For example:
· There are no hours of Teaching Assistant (TA) or Learning Support Assistant (LSA) under Section F.
· There are hours of TA support under Section F but the vague wording is used such as 'regular', 'access to' and 'benefit from' in relation to the hours of support. This means the actual provision your child is meant to receive becomes unclear.
· Speech and Language therapy is either omitted entirely or placed under the Health Section of the EHC plan.
Education, Health and Social Care
The law is quite clear: Health or Social Care provision which educates or trains a child is to be treated as special educational provision and specified under Section F, not under Health or Social Care provision.
Communication is of huge importance to a child's education - often described as their ability to access the curriculum. Therefore it is almost always possible to argue that Speech and Language therapy input should be specified under Section F. This makes it the responsibility of the Local Authority to provide the therapy your child requires.
If your child needs to be placed out of their chronological year, then case law has clarified that this can be a special educational provision. In which case if your child's needs mean they should be 'back-classed', this should be identified in Section B as a special educational need and their placement in a year below their age group should be specified in Section F.
Evidence and specified provision
It vital to read the 'Evidence' section and to read through all the reports under the 'Appendices' under Section K of your child's EHC plan. If, for example, you believe your child requires 1:1 support from a trained Teaching Assistant then you will need the evidence to show this is required.
The hours of support or input by, for example, a Teaching Assistant, must be clearly identified and spelled out. A reference to 'full time' support is not a recognised legal term. The actual hours of support needed should be quantified and specified in Section F.
If any of the reports written as part of the EHC assessment are unclear (presuming this appeal arises from a final EHC plan), particularly any recommendations about specific provision, you can write to the professionals concerned and ask them for their professional recommendations based on the report they wrote as part of your child's statutory assessment under Regulation 6 (see 'Evidence' section for further information).
You may already have had to arrange an independent assessment by, for example, a Speech and Language therapist. If you qualify for Legal Aid, then it might be possible to obtain an independent assessment through this route, once you are registered with one of the Legal Services organisations providing Legal Aid.
Section 37 of the Children and Families Act 2014 and Regulations 11 and 12 of the SEND Regulations 2014.
SEND Code of Practice (2015). Chapter 9. You should read Chapter 9, particularly section 9:61 - 9:76 which covers the content of the EHC plan.
Note that Section 21 (5) of the Children and Families Act 2014 (CFA 2014) states that Health or Social Care provision which educates or trains a child is to be treated as special educational provision and specified under Section F (rather than Health or Social Care provision).