Automated Transcript Episode 7

 EHCP First Steps and Insights into Navigating the Local Authority

Guest speaker Adam Friel Head of Education and Partner at Geldards Law

Please excuse any errors as this transcript has been automatically generated

Dr Olivia Kessel:

Welcome to the Send Parenting Podcast, focused on supporting, inspiring, and empowering parents and their Neurodiverse children. I'm your Neurodiverse host, Dr. Olivia Kessel. We'll be speaking weekly with experts in the world of neurodiversity. No topic is too big or too small for us to discuss. We will include things like, how do you navigate education? How can you understand what your child's legal rights are to an education? Practical advice on neurodiversity, and most importantly, hearing the voices of other parents just like you. Looking forward to having you join US weekly as part of the SENDParenting Tribe.

Dr Olivia Kessel:

In this episode, we welcome back Adam Friel, partner and head of Education Law at Geldards. He will demystify whether your child can apply for an EHCP, what the first steps are, and how to navigate the barriers and challenges you will face with your local authority. I really wish I could have listened to his advice when I started my EHCP journey. Welcome back to the show, Adam. It's great to have your knowledge and expertise on everything. EHCP. Could you take us through what's the first step in getting an EHCP?

Adam Friel:

So, as I was saying the first starting point would be making an application for EHCP plan and the kind of, I suppose the legal test of that is whether it may be necessary to consider whether the provision for your child, the special educational provision, needs to be outlined in an EHC plan. Now, a parent can make that application, a school can make that application. They both can make that application. Often the problem where say a parent is being faced with a wall of no from a school is a misunderstanding by the school. They don't know the legal definition and threshold for application so a parent can do it themselves. I would say that local authorities online forms are very complicated and I wonder whether that's done on purpose to make it put parents off making those applications.

Adam Friel:

But you don't have to fill in those forms. You can do it just by writing out a letter outlining your childs needs in the areas you think that they have needs and also outline the provision, which has been put into place. And I suppose why that provision hasn't been working. The biggest important thing I always say to parents is if you guys have been supplementing the education of your child already, so putting into place speech and language therapy, dyslexic teaching, occupational therapy, or even moved your child into a smaller environment, those are all additional provisions. And when we're looking at the question about whether it's necessary to make that assessment or not, it may be necessary, looking at what you guys have put into place previously. It is really important to understand whether, I suppose a mainstream school can put that provision into place. So when you're looking at that and making that application, it's really important to highlight what's been put into place previously and what the school has done, but what you've been doing.

Adam Friel:

And in addition to that, if you have been, so if the local authority, received that request, they have to make a decision within, six weeks whether they're undertake that needs assessment or not. If they say no, as a parent, you have a right of appeal to the SEND tribunal. And in most cases where a parent does appeal, at some point the local authority will usually concede because the legal threshold is so low. Then there is a stage if the local authority does agree to the needs assessment, where they will effectively have an additional 10 weeks in which to undertake those assessments. That in areas of need which have been identified. So you'd expect an educational psychologist to assess, you'd usually expect if there's language needs there or motor difficulties or there's implications from the paperwork that there's needs in those areas. You'd usually expect those professionals like a speech and language therapist and occupational therapist to assess as well.

Dr Olivia Kessel:

You know, the local authority provides those assessments, but also, you know, you can be advised also to get your own assessments. Can you share with us, should a parent get their own assessments as well? Should they rely on the local authority assessments? What's common practice?

Adam Friel:

So it really depends on what the paperwork already exists shows. So in some cases I think if a school is supporting the application for needs assessment or there's a lot of say, reports from professionals who have been working with the child already, that information could be submitted with the application. And in most cases, if it shows that the need for the needs assessment that will be sufficient. You do sometimes get local authority saying, well, we won't consider this information because it's not by one of our professionals. But that is total nonsense. It's not a legal position to take. And if you would say, if you did have to appeal, a tribunal would consider all evidence what weight it will attach. That evidence depends on the evidence itself. But often parents I think are misinformed by local authorities that say their past reports are not important when they often are during the needs assessment.

Adam Friel:

It's a good question. Do you go and do your own assessments yourself or let the authority do their assessments and they make a decision about whether to issue or not. Again, I think it's circumstantial. So if you are say a parent who has provision in place independently yourselves already, and that's going to continue during that time, it will be worth your therapists providing reports outlining what they have been doing and the provision they have put into place. Same goes for any specialist teachers that are, that you may have involved. You can get independent expert reports in addition to that. But I think it, you know, this can be an expensive process if you are having to appeal as well and kind of bringing in independent experts obviously has a cost to it as well. So I think that's a kind of judgment call of whether you need that at that stage or whether you allow the authority to complete its assessment, hoping that it will obviously issue an EHC plan and if it doesn't have those experts in place following that assessment to really look at the need.

Adam Friel:

I think common key indicators of that will be who assesses during the needs assessment. So we talked about the local authorities should use professionals in areas of identified need, but you often find in a lot of local authorities that you might see an educational psychologists, but none of the other experts in those other field assess, which can obviously undermine the EHC plan, which is produced at the end of it or undermine the local authorities decision about whether they're issue or not. So once they've completed that needs assessment, they've got to make a decision over whether they are going to issue one or not. In most cases, local authorities, if they have agreed to do the needs assessment, it will usually lead to an EHC plan. There are cases that are more at risk than saying no. I tend to find in our practice that the ones more at risk are your neurodiverse students.

Adam Friel:

So those who are kind of cognitively able, so are kind of bright dyslexic students. Your, the old term used to be Asperger's, but I suppose the, the modern term is mild, although I always think that label is very misleading or a kind of speech and language disorder or, and difficulties. Those are usually the students that if it can be shown that they are bright students, the local authorities often say, well, their needs could be met within the resources of their current school. Again, for all the reasons we've outlined before, I would usually be challenging that decision because usually if you actually look at what a child has been receiving previously, it's far more than an EHC plan would provide anyway. So for instance, if a parent is putting into place lots of therapy and specialist teaching themselves, or the child is say in a smaller environment or even already in a specialist environment, a local authority should see those as key indicators that a mainstream school could not meet that child's needs within their own resources.

Adam Friel:

So it would be necessary to issue a plan. And that legal test with that is whether it's necessary or not, looking at what's been put into place previously, what the needs assessment, um, assessment show now and working out whether an EHC plan is necessary is what a tribunal would look at. The problem is with the needs assessment is often flawed because not the right assessment, the right experts are not brought into assess or the reports are not in line with the code of practice, which makes it very clear that, an EHC expert report should be thorough about what a child needs are and should quantify fully the provision they require. And because a lot of the reports produced during the needs assessment are incredibly vague and wooly, it can lead to a local authority wrongly saying that a child doesn't need an EHC plan when it's, it's quite clear that that they do, it's just the evidence of the, in the reports isn't thorough enough, the assessments haven't been as rigorous as they should and the expert hasn't really quantified fully their recommendations.

Adam Friel:

If none of that happens, it's going to lead to, either the authority saying they are not going to issue a plan, or in most cases they do issue a plan and it's inadequate, doesn't address the child's needs, doesn't outline them properly, doesn't quantify the provision that they require and either names the wrong school in section, either the plan or names the school which could meet needs but can't because it doesn't have the provision, which are all those kind of cases for me can be really frustrating because if you put the right provision in place, maybe that child who is really struggling in mainstream, for instance, can make progress. But usually what happens is a parent will accept that plan, the provision doesn't work, the needs gets greater, and then you are looking at a specialist environment. So it's totally, um, what's the word?

Adam Friel:

It is totally not in the local author's best interest to provide inadequate plans in the long term, but unfortunately it's short-termism. It's looking at let's save as much money as possible now protect our budget and not look at, well, if you actually provide the right provision now and you address the needs, it might be that that child can make such progress that they are able to do well, and they are not so reliant on the local authority in terms of putting into place significant levels of provision later on, but because they do it the wrong way round, it ends up in that kind of situation where you, you've got a broken cycle and, and it just continues really.

Dr Olivia Kessel:

And at the center of that, you have a kid who's probably getting anxious, is getting frustrated, self-esteem is going down, you know, they're getting older hormones and it creates a perfect storm that is not good for kids.

Adam Friel:

Exactly. And the thing is once you have someone who is disengaged with learning and completely kind of, I suppose given up or refusing to go to school, you have got to undo that before you even put the right provision into place. And that is really hard. Because it can take, it can take I suppose a couple of months, it can take years to really build up that confidence. So a lot of students we help as well may not even be in school because they're so disengaged. So usually you are kind of building through therapy, their kind of ability to return to a setting which would have been totally unnecessary if you just addressed the needs in the first place. So we see a lot of those cases. We have seen more and more of them since I suppose Covid and I don't know if that's had an impact, but you do tend to find that there are a lot of students out there who have become so mentally disengaged with, education that you are unplugging that and trying to address that need.

Adam Friel:

But if the provision had been provided earlier on, you wouldn't be even facing that kind of problem. And that's the problem, if you were asking me about the system, the actual law in this area is good. It says, you know, we've got an individual, a child with special educational needs, we need to provide them with a provision necessary to meet those needs. The actual law, the EHC plans, the basics are all there. The problem is it's completely underfunded. So local authorities are not getting the right kind of funding from government and although the government have constantly said that they're putting more money into the system, I think the last time I actually looked at that, the funding that they'd put in place was around about what it was in 2010 before you had the kind of austerity cuts that you have now dealing with cost of living crisis, et cetera.

Adam Friel:

So actually the money isn't that much more, and we actually have a greater level of, I suppose understanding of needs. So we're diagnosing more and we're kind of trying to address needs better, but actually the funding hasn't caught up with that. The other issue is obviously accountability. So we talked about all the issues about getting the plan, the inadequacies of the plan, the actual funding put towards the plans. Problem with the system at the moment is if you don't do all the things that you should do legally, local authorities, other than going through the tribunal and parents being successful, those types of appeals don't have much incentive to actually do that. So they will look and focus purely on budget because there is no, I suppose, penalty for not doing their job properly. There is the local government, obudsman but its powers are quite restricted.

Adam Friel:

The usual argument given by local authorities or I suppose decision makers for why there shouldn't be more penalties towards local authorities for not implementing the law properly which I believe is actually a good legal system. It's just not enforced in the right ways, where if you start doing that, you are going to have to do it to parents. And there might be a lot of parents say appealing who were unsuccessful and they might be liable for costs, awarded against them by local authorities. So I should expand that. Tribunals are a non-cost tribunal. So unless someone acts effectively, wholly, unreasonably, you can't get your costs back for running your cases. But the counter argument to that is local authorities are big legal bodies. They have lawyers in turn in their departments, they should have better understanding of the law than say a parent who's going through the system themselves.

Adam Friel:

And there are actually good, comparisons to our system where I suppose bigger legal bodies aren't held accountable. So if your child was permanently excluded from a school and you challenge that decision, a school could be potentially fined up to about 4,000 pounds for making a wholly unreasonable decision. Schools are held more to account, but we keep on saying with SEND Tribunals, we shouldn't do that. Well, I wonder if local authorities were being fined for basically opposing a case which they knew that they were never going to win anyway, that that might be a good incentive to lead them to the kind of, I suppose, discussion table about a case or, you know, conceding earlier on. 4.

Dr Olivia Kessel:

I completely agree with you and it's interesting because with the green paper that's been written it wants to take even less accountability to the local authority and in some regards, but it's a financially based nightmare.

Adam Friel:

Yeah. And the thing is if you put, so the kind of ideas of the SEND review are not wrong. So if you, you get early intervention into place, there might be a lot of students who now require EHCP who don't actually need that intervention because the gap wouldn't have got so wide in their learning that you could have addressed it earlier on. So we have an issue where we are not funding at source, we're not funding the provision at early years in the way we should, um, to help students make progress. And then we're being so difficult about ensuring that they get the additional support they require for an EHC plan. A lot of the time local authorities are making the situation worse and if you look at kind of outcomes, the whole point, the Children and Families Act, which is to ensure better outcomes for children with special educational needs in their life and their education, that aspiration is something which I see as so fundamental to what I do as a lawyer.

Adam Friel:

That's all I ever think about is how we can ensure the best possible outcomes and ensure that these children and young people get the provision necessary to meet their needs. If we do that, in most of the cases I've helped with over the years, the students I have supported have either been able to go on to university or go on to college and, achieve and be able to hold down employment. In the more severe cases we have been able to help those people kind of live in assisted living environments or, you know, be able to access the community and that's what we should be doing, you know, it's great talking about this and talking about, having a system which is, which helps parents, but unless you ensure that the the system is actually working properly across the board, then there are a lot of people who are gonna fall through the cracks.

Adam Friel:

And my concern is, is the green paper, the outcomes of that green paper are totally the wrong way around. It's basically adding more red tape to make it harder for parents and not really holding local authorities accountable. So instead of looking at, say, ripping up the system and burning it down and building a brand new system, what you want to use is the good structure that we have, the good areas of the law and you just want to enhance the accountability. If we did that, you'd almost revolutionize the system overnight. At the moment we have a situation where I think local authorities across the country are just sitting on cases that they know they're not going to win or they're eventually gonna have to concede on. But you know, there is very little incentive for them to do that. So we need to give them that incentive. We need to give them that ability to come to the table, have an adult conversation about ensuring that these young people have the right support. And if we do that they're less likely to be a burden on the public purse later on when they're adults anyway. So it's all benefit to everyone.

Dr Olivia Kessel:

It's almost like education has to go through what healthcare is going through in terms of, you know, it's better to have preventative care for diabetes than to actually get diabetes, you know, and the cost of that. So it's better to have preventative education measures in place. And it's funny, there's less when they're little, there's more when you get to university, but there's a whole slew of people that are never going to make it to university without those provisions. So the system has to change, change the way it looks

Adam Friel:

A hundred percent agree with that. And like if you look at what we're trying to avoid, which is people not in an education and employment or training. So when they have basically given up or you know, in the kind of extreme cases where say young people are bright but they're not getting the right support, they might end up in a a kind of life that, that they shouldn't do. They might be kind of more attracted to say, kind of criminal activity if they're not getting the right support because they see that as an easy way to live, earn a living, and obtain money and they feel completely let down by the system. If we are thinking about those types of people ending up saying the prison system, and I think I heard the other day that the prison system, a place within a prison costs more than a place at somewhere like Eaton every year. So the end result is almost the same. We are going to spend a hell of a lot of money having these people within those types of environments when if we actually put the provision in place in the first place, we avoid that situation entirely.

Dr Olivia Kessel:

And I've heard statistics that there are quite a lot of dyslexic and ADHD kids that end up, I'm not sure of the statistics on autism that end up in, in the prison system. It's a larger than normal number than you would think be because of that lack of support.

Adam Friel:

Yeah, so the significant proportions of people in prisons have, they don't have basic reading or writing skills, so we're almost setting them up for that outcome when it could have been completely avoided in the first place. And why do we want to spend that amount of money on say, just holding someone in a prison cell when if we put the right provision in place in the first place, that they could actually be benefiting and contributing to society. So it's that short-termism in terms of our system and you know, protecting budgets, not funding the system properly, which is actually coming to bite us once people have left their education. So you have people who are unable to access society or you know, the local, the government in terms of I suppose supporting them in being out of work or in the prison system or being unable to kind of contribute appropriately to society.

Adam Friel:

They are funding a lot of money towards those systems when if they put it into the education system, you probably have a much smaller prison population, much smaller amount of people who are on benefits and more people in employment, more people kind of contribute to society. So it's totally convoluted and it's, it's works the wrong way round. Everything has told us in life that early intervention is key. So when we identify a need, if we put the provision in there, um, to start off with, we can ensure good outcomes, good outcomes mean adults who are able to hold down a job, contribute to society and do well. So if we don't do that, then we have to live with the consequences of that. And I think that's something that maybe we are not brave enough to be saying. So having this conversation about, okay, what's the outcome?

Adam Friel:

If the outcome of the situation is that we have lots of people who are not able to contribute to society, then the system's not working. But actually when you look at the system, the law is good. The guidance of the code of practice at the moment is good. It's actually a lot of it's just common sense about how you support people. The problem is, is it's been underfunded for, you know, almost 20 years. There are more and more people I suppose who we're identifying as having needs, which is great, but then the pot is smaller anyway because the funding is smaller in the first place. So instead of looking at the system in that way, there needs to be an injection of, of public funding into the education system. There needs to be an injection of public funding into, um, supporting people with identified with special educational needs. And by doing that, we are actually ensuring that we are going to have people and paying their taxes and contributing to society. Otherwise we are just goint to continue the cycle. And I could be here another 30 years having the same conversation, basically <laugh>,

Dr Olivia Kessel:

Let's hope not Adam, let's hope that, uh, <laugh> things are, you know, that things are going to change. You know, and I think you've highlighted today how those things can change and now it's up to, you know, those parents out there who don't want their kids to end up in prison would rather them end up being functioning, you know, contributing members of society to raise their voices and to make it known to people. And you know, we each can fight our own fight with this to make a difference. And it sounds like, you know, it is a no-brainer really, you know, <laugh>, it just is!

Adam Friel:

Makes sense. It is needs to me, and I should say like I worry that I sound like some kind of voodoo witch doctor or something by saying, you know, if you don't get the right support, your child will end up in prison or not working. I'm not saying that there are lots of people who will do well anyway. Um, and you know you can hear about kind of the entrepreneurs out there, like the guy who runs Soho House, who's severely dyslexic and has done amazingly in his life, and same with

Dr Olivia Kessel:

Joe Malone.

Adam Friel:

Yeah. And, you know, Richard Branson and stuff like that. So I'm not saying it's, it's a hundred percent bleak. I'm just saying there is a real issue in our system and you know, I have to be honest, like I'm very lucky. I come from a middle class family, I have people around me who, who knew what my needs were and try to help and address them. Didn't a hundred percent get it right, but you know, which parent does. And that's allowed me to get where to where I am today. The problem is if I was born into a different environment and I didn't have that support around me, my outcomes could have been very different. And that's always what has been my kind of goal and my vocation for helping other people, is to ensure that people who may not know what they're entitled to may not know the support out there that I'm actually able to help them.

Adam Friel:

And it's, it's an amazing outcome. As I say, I get to talk to my ex clients and their children or young people later on and see the outcome and see that they're doing so well and they are, you know, reaching their potential. There are very few areas of law where you can sit there and say that you know, there are lots of areas of law where you might be defending someone who is you know, clearly guilty in a case or you might be helping a company take over another company and looking at making people redundant. You know, in terms of my area of law, it is a beautiful, kind of area to work in because you actually see the best outcomes being achieved. So I love doing it and I love being involved in seeing, you know, all the kids that I helped do well, the frustration for me is I feel that there are a lot of cases I help in now where I'm actually not needed. If the system was working properly, they would never have got to me in the first place. And I prefer that system to be honest with you, than a system where, you know, I'm being called in and parachuted in when I don't need to be basically. Um, if that makes sense.

Dr Olivia Kessel:

It makes sense. It also makes it only accessible to those people who can, you know, get second mortgages on their house, borrow from family members and friends. It cuts off a lot of people who don't have the financial means to call in a specialist like yourself. And, but like you said, there are charities as well, so there are other places to get support from, but a parent should be able to navigate this with their school by the, you know, it should be a system that works and it doesn't at this point work

Adam Friel:

There is legal help available, but it's very limited. And then you have people who can afford to use our services, and then you have this group in between and that, that's the group I always worry about. That is why kind of, we've been really kind of trying to promote the kind of free advice out there to parents through social media platforms. So at least people can get the kind of basics of what they can do. A parent can take a case to tribunal themselves, they don't need to have lawyers involved. They might be able to get assistance from a charity. They may also go to down other route in terms of doing the cases more themselves. It is frustrating that I think the legal aid isn't higher for people who can't. So there's a lot of people who fall just above that threshold and may not be able to use lawyers or advocates in their cases.

Adam Friel:

Charities are over ridden at the moment in terms of the amount of cases coming their way and their kind of limited resources. And I just don't think it's the way we should be looking at things. I don't think we should be relying on an effectively the third sector and doing the job of local authorities and um, you know, ensuring that children are getting the right support. If the system was funded better, I would hope that local authorities were making better decisions in the first place and schools would have the right support in place anyway. But if the accountability was better on local authorities in the first place, I think we would see a change of behavior. I do think with the, the green paper, one of the biggest flaws in it is nobody who uses the SEND system like myself and, you know, the charities involved, or even the SEND itself has been ever asked by government for our input for what would make a better system.

Adam Friel:

And lo and behold, that means that the green paper is quite alien to any of us about how that is a good idea. So it's completely flawed in the first place. And you know, I don't think parents want more red tape what parents want are quicker decisions and decisions, which are fair. The reason why there's such an influx of cases going to tribunal and it's increased significantly over the last five years, is one with EHC plans which replace statements of special educational needs. They go from zero to 25, whereas statement went up to either 16, 16 or 18 depending on the environment, you won't see. So your population of potential people using the tribunal has doubled almost overnight. And I think people have got better understanding of their needs and their rights. But also the reason why more cases are going to tribunal is the decision making is flawed in the first place.

Adam Friel:

So parents feel there is only one way to get the right decision and that is to have an independent judicial body look at it. And that's what the tribunal is even now. Lots of cases don't go to tribunal usually where a local authority is aware that it its case is weak or flimsy. It will eventually with the kind, I suppose the threat of having a hearing and that being used to get them into the negotiation table. They will come to the table and talk about the cases. But it's so disappointing that it takes all that process all the way through the appeal system to have a conversation that we all knew you should be having, you know, six months ago, even a year ago.

Dr Olivia Kessel:

Meanwhile, you have a kid who is getting more and more disengaged that is being pushed down the road and not getting their needs met and becoming more and more disengaged and it's harder and harder and will cost more to get them back to where they need to be. So it's the kid that suffers at the end of the day, which is very, very sad.

Adam Friel:

Yeah, and I mean, again, this is the problem where you've got financial decisions being made over the individual's needs and the whole legal system is based on the individual, not on finances, but if you get the provision in there earlier enough, usually it will cost you as a local authority much less anyway. And if we're looking at the, the long-term outcomes, you know, as we said before, it's an extreme example, but do we really want to, to be in a situation where someone is unable to access, you know the modern world because of their needs, they haven't got the right support and therefore we are kind of having to do that anyway. So it's going to be more expensive in the long term than it would be if we just put the provision in place in the first place.

Dr Olivia Kessel:

Thank you very much, Adam, for your insight and wisdom into the very confusing topics of EHCP and navigating the local authority. It's been a pleasure having you on the show. Thank you for listening and being part of the Send Parenting Tribe. If this is your first time joining us, remember to follow us so you can join us weekly for more insightful interviews to support you and your children on their educational journey to reach their potential. Please also go to send parenting.com or the Send Parenting Facebook or Instagram page to leave your comments on what you would like to hear next on the Send Parenting Podcast. Wishing you and your family a happy week ahead till next week.