The Tragic Consequences of Misunderstandings and Misinformation regarding EHCP's

Recent reports have highlighted alarming failures in the Education, Health and Care Plan (EHCP) process, which have contributed to tragic outcomes for children with special educational needs and disabilities (SEND). A recent inquest in to the tragic death of a young girl with an EHCP who took her own life in 2021 has highlighted how delays, misinformation, and legal misunderstandings within schools and local authorities (LAs) in the UK can lead to severe consequences. This post will guide parents on the role of EHCPs, how failures by LAs can be challenged, and what steps to take to secure timely support for their child.

1. The Tragic Consequences of EHCP Confusion

A recent case reported in Schools Week (link: https://schoolsweek.co.uk/send-suicide-risk-over-ehc-confusion-coroner-warns/) revealed that confusion surrounding EHCPs has contributed to fatal consequences. A child with SEND died by suicide after being left without the necessary support, despite having an EHCP in place. This tragedy underscores systemic problems, including delayed assessments and misunderstandings in schools regarding their legal obligations, which are leaving vulnerable children at greater risk.

Coroners and SEND experts have raised urgent concerns about the EHCP system, warning that delays in providing necessary educational and mental health support can worsen children’s conditions, particularly for those with social, emotional, and mental health (SEMH) needs. Delays in implementing support leave children at risk of escalating mental health issues such as depression and anxiety.

2. Challenges Facing Schools and Local Authorities

A major issue affecting the SEND system is the reliance on inaccurate advice from local authorities, which often leads to delays in securing EHCPs, or EHCPs not being applied for until years after they are required. Local authorities are legally required to issue EHCPs within 20 weeks of a request, but recent data shows that nearly half of these plans are delayed beyond the statutory deadline. These delays mean that children are left waiting for the critical support that is often essential for their emotional wellbeing.

Some local authorities have failed to understand their statutory duties correctly. For instance, several councils have been found to incorrectly assume that schools are responsible for providing full-time education for SEND pupils when they are unable to attend due to mental health reasons. In the case in question, the school’s management was incorrectly led to believe that they had to spend an additional £6,000 supporting a child or young person before they could apply for an EHC needs assessment. This lack of clarity and problems with misinformation passing between LAs and schools exacerbates delays in support, leaving many children without adequate care.

3. The Importance of Timely EHCPs for Children with SEMH Needs

An EHCP is a legally binding document that provides children with SEND, including those with SEMH needs, access to tailored support that meets their individual requirements. For children struggling with mental health issues, the EHCP process can ensure they receive timely interventions, such as access to mental health services, educational psychologists, and specific learning environments.

The early intervention provided by an EHCP can prevent more severe mental health crises by ensuring a child’s needs are addressed promptly. Delays in issuing these plans or incorrect assessments can severely impact a child’s emotional health, hindering their ability to learn and thrive in school.

4. Challenging Failures in EHCP Provision Through Judicial Review

When an LA fails to meet the statutory deadlines for EHCPs, parents have the right to challenge these delays through a Judicial Review. A Judicial Review is a legal process where a court examines the lawfulness of a decision, action or inaction taken by a public body, such as an LA. If your child’s EHCP is delayed or not being implemented, this legal avenue can ensure the LA is held accountable.

The Judicial Review process can be used when an LA has failed to comply with the 20-week statutory deadline, misinterpreted their legal duties, or refused to provide the necessary support outlined in an EHCP. The High Court can compel LAs to fulfil their legal obligations, ensuring that children with SEND receive timely and adequate support.

For parents facing such issues, seeking legal advice from an education law specialist can be invaluable in navigating the complex Judicial Review process and ensuring their child’s rights are upheld.

5. Conclusion: Protecting Your Child’s Mental Health with an EHCP

For children with SEND, especially those with SEMH needs, an accurate and timely EHCP is essential for providing the support necessary to thrive both academically and emotionally. Delays or errors in the EHCP process can have devastating effects on a child’s mental health, as evidenced by recent tragic cases.

If you are facing difficulties with your child’s EHCP, whether it be delays or inadequate provisions, it is important to act quickly. You can challenge local authority decisions through a SEND tribunal or, in cases where the LA has acted unlawfully, a Judicial Review. Legal support from specialists in education law can help ensure that your child’s needs are met and that their mental health is safeguarded.

If your child is experiencing mental health issues and they are not being appropriately supported by your LA, our team of experienced education lawyers can provide the advice and representation you need. If you would like discuss your matter with one of our SEND lawyers, please contact us on 0333 202 7175 or education@hcbgroup.com.

Acknowledgments:
1.Schools Week. (2024). SEND: Suicide risk over EHC confusion, coroner warns. Chaminda Jayanetti (https://schoolsweek.co.uk/send-suicide-risk-over-ehc-confusion-coroner-warns/)
2.Schools Week. (2024). Trauma, expense and delays - a system in ‘crisis’. 
Samantha Booth (SEND: Trauma, expense and delays - a system in ‘crisis’ (schoolsweek.co.uk))