Over 4500 EHC Plans Delayed As Local Authorities Claim Special Circumstances


The Law Of... special circumstances

New figures have revealed widespread delays by local authorities in delivering education plans to young people with special educational needs.

Over 4500 EHC plans delayed as Local Authorities claim ‘special circumstances’

Local authorities are legally obliged to put in place, where required, an Education Health and Care (EHC) plan for young people in further education and training who had a Learning Difficulties Assessment (LDA).

The deadline for transferring all existing LDAs to EHC plans for 19-25 year olds was 31 August 2016, but in July, the Department for Education wrote to local authorities:

"Local authorities must make every effort to ensure that, where Education, Health and Care (EHC) plans are needed for those young people who currently have a LDA, they are in place by 1 September 2016. However, there may be some exceptional circumstances where local authorities, despite their best efforts, are unable to complete the full transfer process for a few individual young people by 1 September 2016. In order to avoid any disruption to high needs support for the young person, EFA-funded institutions can continue to deliver programmes to 19-25 year olds, where needed, in the following specific circumstances:"

  • "Where the young person has an LDA and is already attracting high needs funding and the local authority is in the process of an EHC assessment and has not yet decided to make an EHC plan"
  • "Where the local authority has decided to make an EHC plan but has not yet finalised the plan"

"These cases should be the exception not the rule, and cases where an EHC assessment is still underway by 1 September should be particularly exceptional. […] This flexibility applies until 31st December 2016."

Yet despite the fact that delays were only acceptable in 'exceptional circumstances', a large number of authorities appear to have interpreted the letter as a general extension of the deadline until 31 December 2016.

By way of an example, Lancashire County Council replied to an FoI request that: "It should be noted that in July 2016 the DFE changed the deadline for completion of LDA transfers to 31st December 2016. Therefore Lancashire's transfer strategy was adjusted to reflect this." And Tameside Metropolitan Borough stated: "Tameside Council would like to point out that the Department for Education has extended the deadline for transfer of LDAs to EHC plans to 31 December 2016."

As a result, over 4500 EHC plans had not been delivered by 31 August 2016, according to a Freedom of Information request made by law firm Simpson Millar. In fact, some local authorities had not delivered a single of the required EHC plans – sparking heavy criticism from Imogen Jolley, Head of Education and Community Care at Simpson Millar.

She says: "The assessment and planning reforms for children and young people with special educational needs were announced years ago, and the deadline for making sure EHC plans were in place was well-known to local authorities. Yet, according our data, only 13 authorities managed to provide all the required plans on time. Ten local authorities told us that they failed to deliver a single final ECH plan for this group of young people, before 31 August."

Simpson Millar submitted a Freedom of Information request to all local authorities in England.

How many LDAs for young people between the age of 19 and 25 were successfully transferred to an EHC plan before 31 August 2016? How many young people between the age of 19 and 25 were still waiting for their LDA to be transferred to an EHC plan post 31 August?
North West 601 920
North East 287 145
London 642 832
South West 578 354
South East 734 600
East 1267 522
West Midlands 604 376
East Midlands 184 238
Yorkshire and Humber 439 542
Total 5336 4529

In 11 councils, more than 100 young people were still waiting for their EHC plan after the deadline.

How many LDAs for young people between the age of 19 and 25 were successfully transferred to an EHC plan before 31 August 2016? How many young people between the age of 19 and 25 were still waiting for their LDA to be transferred to an EHC plan post 31 August?
Hampshire County Council 30 205
Essex County Council 415 179
Derby City Council 24 148
Lancashire County Council 19 143
Bolton Metropolitan Borough Council 54 139
Norfolk County Council 564 133
Rotherham Metropolitan Borough Council 27 128
Devon County Council 187 118
Leeds City Council 40 116
Manchester City Council 15 115
Staffordshire County Council 7 113

Thomas Mitchell, specialist education law solicitor at Simpson Millar says: "The Department for Education letter clearly refers to a 'flexibility' which is allowed in 'exceptional circumstances'. Yet many of the local authorities we spoke to told us that the deadline had simply been moved."

"No legislation was passed to allow the Department of Education to grant an extension to local authorities in this matter, which effectively makes it unlawful. The local authorities that have not met the original deadline could all face Judicial Review proceedings."

According to Simpson Millar’s figures, more plans were delayed than were delivered on time in the North West, London, Yorkshire and East Midlands.

Thomas says: "Having an EHC plan is necessary to attract the necessary funding from the Education Funding Agency and local authority. I’m struggling to see how local authorities can justify the delay of thousands of plans which are necessary for young people with special educational needs to continue learning. It paints a picture of a system that lacks the necessary resources, and which is allowed to operate outside of the law with no repercussions for widespread failure."

"Although further EHC plans will clearly have been completed since our request for information was made, I’m concerned about whether all of them will be completed by 31 December, given the high number of plans that were outstanding. If all EHC plans aren’t in place by 31 December, these young people could find themselves without the necessary college support or placements."

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