EHCP draft plan response template

When to use this letter, and when not to

Use this letter when the council has sent you a draft EHC plan and you are inside the 15 day window in regulation 13(1). This is the single most valuable fortnight in the whole process. What you get changed now goes into the final plan without a fight. What you leave unchallenged becomes the thing you have to appeal.

Use it if:

• A draft plan has arrived and you are within 15 days of it being served.
• Section F contains wording you cannot pin a number to.
• Something a professional recommended is missing, watered down, or in the wrong section.
• You want a particular school named in Section I.

Do not use it if:

• The plan is already final. Representations are for the draft stage. Once the final plan is issued, the route is an appeal to the First-tier Tribunal on Sections B, F and I under section 51(2)(c), within two months of the notice being sent.
• This is an amendment notice after an annual review. The process is similar and you get at least 15 days again under regulation 22(2)(c), but the council then has 8 weeks from the amendment notice to issue the amended final plan (regulation 22(3)). The deadlines paragraph in this letter would be wrong.
• No draft has arrived and week 20 is close. That is a delay problem, not a content problem. Use themissed deadline complaint letter instead.

The 15 day window and what it gives you

Under regulation 13(1) the council must give you at least 15 days, beginning with the day the draft was served, to do three things. Paragraph 9.42 of the Code confirms these are calendar days.

1. Make representations about the content of the draft plan.
2. Request a particular school or institution be named, from the list in section 38(3) of the Children and Families Act 2014.
3. Require a meeting with an officer of the local authority.

Three practical points. First, 15 days is a floor on what the council must allow, not a cap on you. A thorough response arriving on day 18 is still a response the council has to consider. Second, the draft is not allowed to name a school (section 38(5)), so its silence on placement is not an oversight. Third, none of this changes the 20 week deadline for the final plan in regulation 13(2), which still runs from your original request. Check where you are with the deadline checker.

The specificity standard to hold them to

Section 37(2) of the Children and Families Act 2014 requires the plan to specifythe child's special educational needs, the outcomes sought, and the special educational provision required. Everything below flows from that one word.

The SEND Code of Practice 2015, in the Section F table under paragraph 9.69, says provision "must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise", and that provision "must be specified for each and every need specified in section B".

In L v Clarke and Somerset County Council [1998] ELR 129 the court held that a plan must be "so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case", and that "very often specification of hours per week will no doubt be necessary". That case is still good law for EHC plans under the 2014 Act.

The phrases to challenge, and what to ask for instead

These five turn up in almost every draft plan. Each one looks like support and delivers nothing you could enforce. Find them in your draft, quote them back, and supply the replacement wording yourself. Councils are far more likely to accept wording you have written than to draft it for you.

Two more worth knowing about while you have the draft in front of you. Therapy that educates or trains your child, speech and language therapy above all, belongs in Section F and not in Section G. Section 21(5) of the Children and Families Act 2014 treats such provision as special educational provision, and paragraph 9.74 of the Code says that because communication is so fundamental in education, addressing speech and language impairment should normally be recorded as special educational provision unless there are exceptional reasons not to. It matters because only Section F carries the council's absolute duty under section 42(2) to secure the provision.

And where a professional recommended something that has not made it into the plan, the Code says there should be clarity as to how the advice gathered informed the provision specified, and that where the council has departed from that advice it should say so and give reasons. Ask for the provision or ask for the reasons. Either answer helps you. Our guide to the EHCP sections sets out what each part of the plan is supposed to contain.

The letter

Copy everything in the box. Anything in [SQUARE BRACKETS] is for you to fill in or delete. Repeat the numbered Section F blocks as many times as you need.

[YOUR NAME]
[YOUR ADDRESS]
[POSTCODE]
[YOUR EMAIL]   [YOUR PHONE]

[CASE OFFICER NAME]
SEN Team
[COUNCIL NAME]
[COUNCIL ADDRESS]

[TODAY'S DATE]

By email to: [CASE OFFICER EMAIL], copied to [SEN TEAM EMAIL]

Dear [CASE OFFICER NAME]

REPRESENTATIONS ON THE DRAFT EHC PLAN, REGULATION 13(1)
Child: [CHILD'S FULL NAME], date of birth [DD/MM/YYYY]
Your reference: [REFERENCE NUMBER]
Draft plan dated: [DATE ON THE DRAFT]   Served on me: [DATE RECEIVED]

Thank you for the draft EHC plan. I am making representations within the period
allowed by regulation 13(1) of the Special Educational Needs and Disability
Regulations 2014.

Within the same period I also:
   - request that a particular school is named, as set out under Section I
     below; and
   - [require a meeting with an officer of the authority / do not require a
     meeting at this stage].

THE STANDARD I AM ASKING YOU TO APPLY

Section 37(2) of the Children and Families Act 2014 requires the plan to specify
my child's special educational needs, the outcomes sought, and the special
educational provision required.

The SEND Code of Practice 2015, in the Section F table under paragraph 9.69,
states that provision "must be detailed and specific and should normally be
quantified, for example, in terms of the type, hours and frequency of support
and level of expertise", and that provision "must be specified for each and
every need specified in section B".

In L v Clarke and Somerset County Council [1998] ELR 129 the court held that a
plan must be "so specific and so clear as to leave no room for doubt as to what
has been decided is necessary in the individual case", and that "very often
specification of hours per week will no doubt be necessary".

Several parts of the draft do not meet that standard. My representations follow
section by section.

SECTION A: VIEWS, INTERESTS AND ASPIRATIONS

   Requested change: [SET OUT THE WORDING YOU WANT.]
   Reason: [FOR EXAMPLE: this section does not currently include
   [CHILD'S FIRST NAME]'s own view about [TOPIC], which [HE/SHE] expressed on
   [DATE].]

SECTION B: SPECIAL EDUCATIONAL NEEDS

   B1. Requested change: please add the following need, which is identified in
       [REPORT NAME] dated [DATE] at [PAGE OR PARAGRAPH], but does not appear in
       Section B: [DESCRIBE THE NEED, IN THE REPORT'S OWN WORDS WHERE POSSIBLE].

       Reason: Section B must record all of my child's identified special
       educational needs, because Section F must then specify provision for each
       and every one of them (Code paragraph 9.69). A need that is missing from
       B will have no provision in F.

   B2. Requested change: please amend "[QUOTE THE DRAFT WORDING]" to
       "[YOUR WORDING]".

       Reason: [FOR EXAMPLE: the draft understates the level of need described
       in the [REPORT] of [DATE], which records [QUOTE].]

SECTION E: OUTCOMES

   Requested change: [SET OUT THE OUTCOME YOU WANT ADDED OR AMENDED.]
   Reason: [FOR EXAMPLE: there is no outcome relating to [AREA OF NEED], so
   there is nothing in Section F working towards it.]

SECTION F: SPECIAL EDUCATIONAL PROVISION

This is the section I am asking you to change most. For each item below I have
set out the draft wording, the wording I am asking for, and why.

   F1. The draft says: "[QUOTE THE EXACT DRAFT WORDING]"

       Please replace it with: "[CHILD'S FIRST NAME] will receive [NUMBER] hours
       per week of [1:1 / small group] support from a teaching assistant who has
       completed [NAMED] training and has at least [NUMBER] year's experience
       supporting children with [NEED], directed by the class teacher and
       reviewed each term by the SENCO."

       Reason: as drafted, the provision is not quantified. Nobody reading the
       plan could say what must actually be delivered, which is the test in
       L v Clarke, and it does not meet the requirement in Code paragraph 9.69
       to specify type, hours, frequency and level of expertise.

   F2. The draft says: "[QUOTE THE EXACT DRAFT WORDING]"

       Please replace it with: "[YOUR PROPOSED WORDING, QUANTIFIED]"

       Reason: [PICK WHAT FITS: "access to" promises availability rather than
       delivery; "as required" leaves delivery to someone else's judgement;
       "up to [X] hours" is a ceiling that would be satisfied by delivering
       nothing; "opportunities for" was held to be vague, meaningless and
       unenforceable in B-M v Oxfordshire County Council [2018] UKUT 35 (AAC).]

   F3. Therapy in the wrong section. [The speech and language therapy
       recommended in the report of [DATE] appears in Section G / does not
       appear in the plan at all].

       Please move it into Section F and quantify it: [NUMBER] sessions of
       [LENGTH] per [week / term], delivered [directly by a qualified speech and
       language therapist / by a trained teaching assistant under a programme
       written and reviewed by the therapist], with the programme reviewed
       [half-termly / termly].

       Reason: section 21(5) of the Children and Families Act 2014 provides that
       health care provision which educates or trains a child is to be treated
       as special educational provision. Paragraph 9.74 of the Code states that
       because communication is so fundamental in education, addressing speech
       and language impairment should normally be recorded as special
       educational provision unless there are exceptional reasons for not doing
       so. Only Section F carries the authority's duty under section 42(2) to
       secure the provision.

   F4. Advice departed from. [REPORT NAME], dated [DATE], recommended
       "[QUOTE THE RECOMMENDATION]" at [PAGE OR PARAGRAPH]. That does not appear
       in the draft plan.

       Please either include that provision in Section F, quantified, or set out
       in writing your reasons for departing from the advice. The Section F table
       under Code paragraph 9.69 states that there should be clarity as to how
       advice and information gathered has informed the provision specified, and
       that where the authority has departed from that advice it should say so
       and give reasons.

   F5. Needs with no provision. The following needs appear in Section B but have
       no corresponding provision in Section F: [LIST THEM].

       Please add quantified provision for each, or explain in writing why none
       is required. Code paragraph 9.68 requires the plan to specify the
       provision required to meet each of the child's special educational needs.

SECTION I: PLACEMENT

I request that [FULL NAME OF SCHOOL], [ADDRESS], is named in Section I. It is
[a maintained school / an academy / a non-maintained special school / an
institution in the further education sector / an institution approved under
section 41], and so falls within section 38(3) of the Children and Families Act
2014.

Under section 39(3) and (4) you must name the school I have requested unless it
would be unsuitable for [CHILD'S FIRST NAME]'s age, ability, aptitude or special
educational needs, or [HIS/HER] attendance there would be incompatible with the
efficient education of others or the efficient use of resources.

If you do not intend to name it, please tell me in writing which of those
grounds you rely on and the evidence behind it. Please also send me a copy of
your consultation with the school and the school's response.

TIMESCALES

I note that the final EHC plan is due by [DATE], which is 20 weeks from your
receipt of my request on [DATE], under regulation 13(2). Nothing in these
representations changes that deadline.

Please confirm receipt of this letter and confirm the date by which you will
respond to each of the points above.

Yours sincerely

[YOUR NAME]
Parent of [CHILD'S FULL NAME]

Enclosures: [LIST ANY REPORTS OR EVIDENCE YOU ARE SENDING WITH THIS LETTER]

How to adapt it

1. Write down the date the draft was served and count 15 calendar days.Put that date at the top of your notes. Everything else is done against that clock.
2. Make two lists before you write a word. List every need in the professional reports, then check each one appears in Section B. Then list every need in Section B and check each one has provision in Section F. The gaps in those two lists are your B1 and F5 points, and they are usually the strongest ones.
3. Go down Section F with the four part test. Type, hours, frequency, who delivers it and their expertise. Anything missing two or more of those gets an F block of its own.
4. Write the replacement wording yourself. Do not just say "this is too vague". Quote the draft, then give the exact sentence you want in its place, with numbers in it. A council under time pressure will very often paste in wording that is ready to use.
5. Anchor every request to a report. "I would like more speech therapy" is a wish. "The therapist recommended weekly 30 minute direct sessions at page 12 and the draft offers a termly review" is an argument.
6. Delete the sections you have no comment on. A four page letter that changes five things beats a twelve page letter that quibbles with everything, and it is much harder to dismiss.
7. Ask for the meeting if there is real disagreement. It costs you nothing, it is your right under regulation 13(1), and it is often faster than three rounds of email.
8. Send it inside the window and keep the sent copy. Email is fine. Ask for written confirmation of receipt. If this ends up at the Tribunal, this letter is the document that shows what you asked for and when.

What happens next

1. The council considers your representations and issues the final plan.The final plan must be in the form of the draft or modified in the light of the representations (regulation 14(1)), and it must still be issued within 20 weeks of your original request (regulation 13(2)). It comes with notice of your right to appeal, the time limits, and the mediation information (regulation 14(2)).
2. Some points are accepted, some are not. This is the normal outcome. Compare the final plan against your letter line by line and note which of your requests were adopted, which were refused, and which were quietly ignored. That comparison is your appeal grounds, already written.
3. Your requested school is not named. The council must consult the school under section 39(2) and can only refuse on the two grounds in section 39(4). If it refuses, ask which ground and on what evidence. Placement appeals are one of the few appeals you can bring without a mediation certificate, under section 55(2).
4. The deadline passes with no final plan. Your representations do not stop the 20 week clock. If day 140 arrives with nothing, switch tracks and send the missed deadline complaint letter linked above.

Once the final plan is issued you have two months from the date the notice was sent to appeal Sections B, F and I to the First-tier Tribunal, and two months to contact a mediation adviser. The deadline checker will work those dates out from your letters. Before you appeal, get free advice from IPSEA or your local SENDIASS. They are very good at telling you which battles are worth fighting.