Post-16 Phase Transfer Deadline - Who Can Appeal?

Portrait of Sarah Woosey
Sarah Woosey
Partner, Education & Community Care Solicitor

On 31st March 2021 the Local Authority is legally required to issue your child or young person with an amended EHCP (Education, Health and Care Plan) if they are moving to a new school or placement in September 2021.

The Post-16 phase transfer appeals process can be different to the secondary school phase transfer process, because if your child is 16 years old or older the right to appeal is theirs to make if they have the capacity to do so. If they aren’t happy with their amended EHCP, they can make an appeal to the SEND Tribunal themselves or with your help if they ask for it.

Unlike any other appeals process, if your child doesn’t have the mental capacity to make an appeal themselves then the right to appeal will automatically be passed onto their parent/s.

A person is considered to lack capacity to make the decision to appeal if they’re can’t:

  • Understand the information relevant to the decision
  • Retain that information
  • Use or weigh up that information as part of the process of making the decision

We know that if you have a child with SEND who is moving into Post-16 education, you’ll already understand how important it is for them to get the right provision for their education. But making an appeal to the SEND Tribunal for a young person is not always as straightforward as appealing for younger children, and things can quickly become complex.

And as well as understanding the law relating to EHCPs, it can also be important to have an understanding of the law relating to mental capacity as well. Which we know is a lot to ask from parents if you’re already concerned about your child’s wellbeing.

Our Education Lawyers are experts and we will give you legal advice tailored to your child, no matter what phase of their education they are entering. Get in touch for an initial chat, or for legal advice on what to do if the Local Authority haven’t amended your child’s EHCP yet.

Call us on 0808 239 9764 or request a callback

Is the Appeals Process the Same for a Post-16 as it is for Secondary School?

Mostly. The general appeals process is the same in that if you don’t have an amended EHCP by the phase transfer deadline or the Local Authority have left Section I blank, you may be able to challenge this through a Judicial Review.

And if you get your EHCP in time, but you don’t think it’s right for your child then you or your child can make an appeal to the SEND Tribunal.

The main differences if your child is transferring into Post-16 education are:

  • The Deadline - The Post-16 phase transfer deadline is on 31st March every year, whereas the secondary school deadline is always 15th February
  • The Person Appealing - Now that your son or daughter is a young person, they could lodge the appeal themselves if they have the capacity to do, although they may still need your help

It’s equally important that the Local Authority meet these deadlines, as it means that if you and your child aren’t happy with their amended EHCP, you’ll have time to appeal it before your child is due to start their new placement in September.

This means you can be sure the Local Authority has named the correct institution in Section I of the EHCP, as well as having all the correct provision they need to support them there.

How We Can Help You

Our Education Solicitors and SEND Lawyers can help you challenge the Local Authority through a Judicial Review, or help you make an appeal to the SEND Tribunal if the EHCP isn’t right.

We can just offer you legal advice where you need it or we can represent your child at the SEND Tribunal Hearing as well. We have the largest Education Law team in the UK so we have a wealth of expertise in handling cases against the Local Authority to make sure children and young people get the support they need.

Here’s just a few examples of the young people we’ve helped:

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