31 March is an important date for your child or young person if they have an EHCP (Education Health and Care Plan) in place and are due to transfer to the Post 16/19 phase of their education. This is because the Local Authority is legally required to issue an amended Final EHCP by 31 March, naming the placement or type of school, they should attend from September 2020.
It is important that Local Authorities meet this deadline, as it makes sure that there’s enough time for the transition work to be completed for the child or young person. And, it also makes sure that there’s enough time to appeal the placement and contents of the EHCP and for that appeal to be heard in the First-Tier Tribunal (Special Educational Needs and Disability), more commonly known as the SEND Tribunal before September 2020.
We're rated‘Excellent’Lots of people have been calling to ask us this question as they’ve heard that Local Authorities don’t have to comply with the deadline because of Coronavirus. In short, Local Authorities must still comply with the Phase Transfer deadline because the Secretary of State for Education must give notice in order for the legislation related to Coronavirus to be in force in relation to SEND and this has not happened at the time of this article being published.
If the Secretary of State for Education provides the required notice, then it will lead to some of the laws relating to SEND changing. The Covid-19 Act includes legislation to water down the duty to provide the provision in Section F of an EHCP. This is a specific duty which must be complied with but the Act gives the power for it to be replaced with ‘a duty to try their best to provide it’.
This will weaken your rights and we’re monitoring this very carefully.
Your Local Authority still has a legal requirement to issue the Final Amended EHCP for Post 16/19 phase transfer. This duty will continue unless the Secretary of State for Education, gives the notice as set out above before 31 March 2020.
If your Local Authority doesn’t meet this deadline, you can challenge this through a Judicial Review which our Education Law Solicitors can help you with.
You could also make a complaint to the Local Authority about this but the complaint route takes time. We’ve become aware that the Local Government and Social Care Ombudsman who can investigate complaints against Local Authorities have suspended all casework and will not accept any new cases in response due to the Coronavirus.
The Judicial Review route is usually a quicker resolution to a complaint and in light of the Ombudsman’s decision is the only independent process available at the time of writing this article.
The Local Authority is legally required to either name a specific placement or type of placement your child or young person should attend from September 2020. If they don’t do this, you can also challenge this through a Judicial Review. This is normally the quickest way to resolve the issue. You could consider making a complaint to the Local Authority but this does take time and as explained, if that’s unsuccessful you cannot currently submit a complaint to the Ombudsman.
4.5 out of 5 based off 2587 reviewsYou can make an appeal to the SEND Tribunal if you aren't happy with a decision made about your child’s school placement or the contents of the EHCP. But, if your child is deemed to be a young person, the right to appeal is theirs to make. They can do this themselves or with your help if they ask for it or if they don’t have capacity to appeal and you are a suitable alternative person, you can do it for them.
There is a chance to improve your chances of succeeding in your appeal by including the description of educational needs and the provision recorded in the EHCP as part of your appeal. In most cases our Solicitors find that the drafting of the educational needs and provision included in EHCP’s is poor, so it’s usually beneficial to appeal these sections of the EHCP as well.
The SEND Tribunal can consider any amendment requests to the Health and Social Care sections of the EHCP for any appeals registered by 31 August 2020.
You should consider including Health and Social Care sections of the EHCP in the appeal as these issues are often relevant to what placement should be named in the EHCP.
The inclusion of social care in the appeal can be particularly helpful if you are trying to get a residential placement. This often increases the cost of the Local Authority package, making the cost of a residential placement more comparable.
Because our Education Law Solicitors have helped many other people with their Phase Transfer Appeals, we know what works. We can put all those years of expertise into your appeal – helping you throughout the whole process from giving you legal advice to representing you during proceedings.
If there have been problems with your child or young person's phase transfer, their EHCP doesn't meet their needs or they don't get a place at their preferred choice of school, speak to us as soon as possible. We can help you.
A good Education, Health and Care Plan (EHC) should be clear, concise, understandable and accessible to education providers and practitioners, as well as the parents, child or young person.
Special Educational Needs and Disability (SEND) Tribunal appeals happen when you need to challenge a Local Authority’s decision over your child’s Education and Health Care Plan (EHCP). However, we’re currently seeing serious delays in the Tribunal - many hearings are listed for almost a year in the future.
We come across many frequently asked questions and misconceptions surrounding the assessment process for an EHCP, known as an Education, Health and Care Needs Assessment (EHCNA). Jessica Wake from our nationally leading Education Law team tells you everything you need to know.
