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  • Writer's pictureSEN Legal

The power of a simple Pre-action Protocol Letter.

A recent BBC News article (from 4th December 2018) has once again highlighted the scale of our national SEND crisis - with it being reported that thousands of Children are being denied support which is specified in their EHC Plan. This is not only scandalous, but is also unlawful.

But what can you do if your local authority are dodging their legal obligation to provide the specified and quantified support set out in your Child's EHC Plan - for example speech and language therapy or the use of a full time 1:1 teaching assistant?

The easiest way to challenge this is by issuing a “Pre-Action Protocol Letter”, which is a legal letter sent to the public bodies legal team. This letter must follow the Pre-Action Protocol, which sets out the form of a Pre-Action letter, and the information that it should contain.

A well drafted and legally sound Pre-Action protocol letter resolves the issue in 99% of cases, without the matter ever needing to be referred to the Administrative Court.

Other instances where a Pre-Action Protocol letter would be useful to force the Local Authority into complying with their legal duties are:

  • The Local Authority not letting you know if they are going to do an EHC Needs Assessment within 6 weeks of the day you requested it.

  • The Local Authority not letting you know if they’re going to issue an EHC Plan within 16 weeks of the day you requested an EHC Needs Assessment.

  • The Local Authority not issuing your final EHC Plan within 20 weeks of the day you requested an EHC Needs Assessment.

  • The Local Authority not giving you a decision within 4 weeks of an Annual Review.

  • The Local Authority not providing your child with appropriate or full-time education.

  • The Local Authority unlawfully refusing to provide, or fund home-school transport.

  • The Local Authority not undertaking appropriate social care assessments or providing appropriate social care support and services.

If Pre-Action Protocol correspondence setting out the unlawful behaviour and the action we expect the public body to take does not resolve matters, then it may be necessary to submit a Judicial Review claim to the Administrative Court. This is very unusual, but unfortunately not impossible.

However, in the event of a successful claim, you can recover your costs from the public body. For this reason, public bodies are almost always open to resolving the matter within 14 days and outside of the Administrative Court, once we have set out where they have acted unlawfully.

Challenging a public body can seem a daunting task, but many of our clients are surprised to find that the law is in fact in their favour, and that forcing their Local Authority to act lawfully is achieved quickly and easily.

If your Local Authority has veered off course, contact us on 01284 723952, and we can talk through getting things back on track.

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