Looked after children and EHCPs: a back-to-basics overview

According to the SEND Code of Practice, around 70% of looked after children have some form of special educational need (SEN). For this vulnerable group of children, two overlapping legal frameworks are engaged – care (under the Children Act 1989) and education, health and care (EHC) (under the Children and Families Act 2014). This can create complexity, particularly in relation to who is responsible for decision making and planning in the context of EHC Plans and how different statutory roles fit together. This article is designed to assist schools navigating these complex scenarios by providing an overview of key roles and responsibilities. 

Key roles and definitions 
Looked after children are primarily those children who are being accommodated, or who have been taken into care, by a local authority. Where a child is “looked after” local authorities must act as their “corporate parent” and have specific duties to safeguard and promote their welfare and educational achievement. This includes ensuring that a personal education plan (PEP) is in place as part of the child’s Care Plan. 

Parents for the purposes of education law include biological parents, anyone with parental responsibility and those with care of the child. For a looked after child, this may mean that both their biological parents and a foster or other carer fall within the definition of “parent” for the purposes of the SEN framework. 
 

Virtual school heads (VSH) are senior local authority officials responsible for promoting and tracking the educational achievements of looked after children. They do not run a physical school; instead, they oversee a "virtual" network of these students to promote and safeguard their educational achievement. VSHs are a legal requirement for local authorities and also have responsibilities for other groups of vulnerable children. 

Designated teachers for looked after children must be appointed by every maintained school, academy and free school. Where the designated teacher is not also the SENCO, the two should work closely together so that staff understand the implications of a child being both looked after and having SEN.
 

Key practical points for schools
Sections 10.1-10.11 of The SEND Code of Practice contain guidance regarding looked after children with SEN which all schools are advised to familiarise themselves with. The additional considerations we would particularly highlight include the importance of:

• appointing a designated teacher for looked after children;
• avoiding delay, as unmet needs can jeopardise a child’s placement and contribute to poor attendance, exclusion risk and breakdown in care arrangements – therefore timely identification of needs and submission of EHC needs assessment requests is essential;
• joined-up working between the school (led by the designated teacher and SENCO) and the local authority (the Virtual School Head, SEND Team and the child’s social worker); and
• aligning care and education planning across both legal frameworks, in practical terms this would mean taking steps such as ensuring that the timing of the child’s EHC Plan review factors in the timing of review of the child’s PEP.
   

Decision making issues
Occasionally confusion can arise as to who is responsible for taking decisions about a looked after child’s education, particularly in the EHC Plan context. As schools will be aware, local authorities must involve parents in the EHC Plan drafting process and allow them to request a particular school or placement for their child. “Parent” in this context means the broad education law definition of parent described above. This means that LAs should be consulting both the looked after child’s biological parents (unless a court order has removed parental responsibility) and the person with care of the child. The child’s social worker must also be involved though day-to-day decisions will generally be delegated to the carer. The SEND Code of Practice advises that:

“It is the looked after child’s social worker (in close consultation with the VSH in the authority that looks after the child) that will ultimately make any educational decision on the child’s behalf. However, the day-to-day responsibility for taking these decisions should be delegated to the carer who will advocate for the looked after child and make appeals to the First-tier Tribunal (SEN and Disability) as necessary.”

Similar principles will apply to schools’ responsibilities to parents of pupils with SEN, such as conducting regular reviews of provision and outcomes and reporting on them.

 
Conclusion
Looked after children with SEN sit at the intersection of two complex legal frameworks, and schools can easily find themselves navigating uncertainty about roles, responsibilities and decision-making. A clear understanding of the relevant legal definitions, combined with strong joined-up working between the designated teacher, SENCO, social worker, VSH and carers, is essential.