EHCPs for Children in Care are a complex issue, with schools, virtual school heads, parents and guardians all involved in the process. Here Lydia Dunford, Education Solicitor at Boyes Turner, provides an overview of how to secure EHCP funding for a child in care.
Lydia will be speaking at our training day on developing and delivering EHCPs. You can register your interest here to attend the next training day.
A subject that often has areas of uncertainty is children who a) have EHCPs and are, b) under the care of their local authority.
EHCPs are legally binding documents that set out a child’s special educational needs and the provision to meet these needs that are above mainstream school resources. EHCPs also either have a placement/type of placement named that the local authority is responsible for the child attending, including the funding, unless alternative arrangements have been made.
Children in care are in the care of a local authority for at least 24 hours, and will typically live in a foster or children’s home, or in a residential school. This can also include children and young people on remand to youth detention accommodation. These children will have a Care Plan. Local authorities are viewed as a ‘corporate parent’, and therefore must promote the welfare of children in care.
Children in care are often under the supervision of a local authority appointed Virtual School Head (VSH), who is responsible for overseeing and monitoring a child in care’s educational progress, promoting and supporting professionals working with them, as well as ensuring their achievements are seen as a priority.
A large proportion of children in care have some form of special educational need, with social, emotional and mental health needs the most prominent, potentially because of the vulnerability of these children, who can be moved between multiple settings throughout their childhood. A lack of a strong and consistent parent advocate can mean a risk of children in care ‘falling through the net’ and their needs not being recognised for what they are; behaviours that are part of their special educational needs can often be regarded as disruptive.
In order to ascertain if an EHCP is necessary, a request must first be made for an assessment of the child’s Education, Health and Care Needs. This request can be submitted by a child’s parent (including the foster parent and or the local authority as the corporate parent), school or appointed social worker and, if agreed to, needs to be undertaken by the child in care’s home local authority (i.e. the borough where they normally live). Given that needs may be missed or possibly misdiagnosed for children in care, particularly if they move between residences, it is essential that sufficient information (which is clear, accessible and specific) is gathered during this assessment process from the necessary professionals, including from the VSH and the child’s Care Plan. It is also important that the EHC Needs Assessment process is undertaken as quickly as possible, to try and avoid delays in an already fractured young life.
For children in care whose needs have been identified to require an EHCP, it is the responsibility of the VSH to make sure that the Special Educational Needs and Disability Code of Practice is followed in their support and teaching, and the EHCP works collaboratively with their Care Plan, rather than duplicating the information.
As for any child, EHCPs for children in care must set out all of their needs that impact on their ability to learn, and what support they need.
Most social care provision should be detailed under Section H1 of the EHCP, as provision required to meet the child or young person’s (who are under 18) care needs, such as personal care (including at night), adaptations in the home or support in accessing the community. The home local authority must deliver this provision for the duration of the EHCP. Section H2 must set out any additional support reasonably required and agreed by social care such as support for short breaks outside of the home.
Once an EHCP is issued, consideration needs to be given to when the Plan is to be reviewed. Reviews are required to take place annually as a minimum (for any child over 5 years of age) but, these should also aim to coincide with a child in care’s review of their Care Plan.
For children in care who are preparing for their transition into adulthood, their local authority must plan ahead with them and their Personal Advisor, who is assigned to provide personal support and signposting. From Year 9 onwards, as with all children with an EHCP, Annual Reviews of a child in care’s EHCP must include ‘Preparation for Adulthood’.
Throughout the EHCP process, the home local authority must establish the views, wishes and feelings of the child in manner that is appropriate to their level of understanding and needs.
Should an appeal need to be made against the contents of the EHCP then, if for a child, this can be brought by the child’s parent, someone with parental responsibility or the person who cares for them. There is the presumption that a young person over 16 years has capacity to bring an appeal, unless proven otherwise.
Overall, and as to be expected, additional consideration needs to be given for both the EHC assessments and Plans for children in care, taking into account the pressure and emotional hardship that they face as well as their special educational needs. It is essential that each child in care, who requires it, has an EHCP that not only meets all of their needs and provides the necessary provision, but are supported to reach achievable outcomes, as well their aspirations.
Later this year we'll be taking a more focused look on how to better support children and young people at the Looked After Children and Care Leavers Forum 2021. Insights and expertise will be shared by the Department for Education, Adoption UK, The Fostering Network and many more key leaders and organisations. View the agenda here.