Forget valentines, where's my amended EHC Plan?
If you are a parent of a child/young person who has an EHC Plan and will be transferring to a new phase of education in September 2020, I hope that your child’s final amended EHCP dropped through your letterbox (or into your email inbox) today (alongside your valentines’ card!).
The reason for this is that the 15th February is the final deadline by which your Local Authority must have issued all children in a ‘phase-transfer’ category with a final amended EHCP stating (in Section I) the placement they are to attend.
The legal reference for this is Regulation 18(1)(b) of The Special Educational Needs and Disability Regulations 2014.
Which children does this apply to?
The 15th February deadline applies to all children who will be moving from:
Early years education to primary school;
Infant to junior school;
Primary/first to middle school;
Primary to secondary school;
and Middle to secondary school.
For young person's moving into post-16 education – the deadline is instead 31st March 2020 in the year of transfer. We will remind you of that closer to the time.
So, what should you expect?
Your Local Authority should have already been in contact with you to ask which placement you would like named in Section I of your child’s EHC Plan and consulted with that school (in fact they should have done so when they commenced a 'transfer review' around November 2019). They should also have proposed their own placement which they consider can meet your child’s needs (if different to your own choice) and have given you an opportunity to comment on it.
I say ‘should’ very loosely because every year, up and down the country, this is not being done - despite the law being very clear.
Why is it important?
The deadline is 15th February for all children in this category for very good reason.
Bearing in mind that a standard Tribunal Appeal is listed on a 12 week timetable, even if you lodged an Appeal with the SEND Tribunal on 17th February 2020, your Appeal Hearing would not likely be until between 11th and 25th May, depending on how quickly the Tribunal register your Appeal. In addition to this you have to take into account, obtaining a mediation certificate, seeking your own evidence (which may involve booking expert assessments) all of which take time and are likely to take you into June 2020. That leaves us with two months at best (before the Tribunal closes at the end of July, as they do not sit in August) to fit all of the children in this category in to have their Tribunal heard. It is important for Hearings to be heard before the end of July, so that parents are in receipt of a decision as to where their child will attend from the beginning of the new term.
This was the case even before the SEND crisis that we are in now, where we are seeing nearly 80% of all first Hearings being vacated 'due to a lack of judicial availability' and a whole new Tribunal date having to be found (which can lead to a further 2-3 month delays)
There is also the further delay of two weeks from the date of the Tribunal Hearing before parents are likely to receive a decision so time is very much ticking.
Every year there are several parents left behind who did not allow sufficient time to run their Appeal, who are left without a named placement from September 2020 and worse – with no time to prepare their children for transition. For children with autism specifically, this step is vital, and transition can take many months. This is why 15th February deadline is so important.
I don’t have an amended EHCP – What should I do?
If you are not in receipt of your child’s EHC Plan, do not delay. Local Authorities nationwide are already under significant pressure to transfer all children and will likely listen to 'those who shout loudest'. Not chasing, puts you at risk of your case not being resolved in time.
You can seek the expertise of a specialist Solicitor in this area to issue a ‘pre-action’ letter for you. This is the preliminary stage of Judicial Review and is effectively a letter that goes to the Head of your Local Authority’s Legal Department to explain ‘you are acting unlawfully and unless you correct it and provide my child’s EHC Plan within 14 days, we are going to take action against you.’ It is surprising how effective this can be.
An alternative means of resolution is negotiation, but its success is often limited.
If you do choose to negotiate, discussions cannot carry on indefinitely and particularly not at the cost of your child not having a placement to commence at the beginning of September. Keep a very close eye on each passing day and if you are not getting anywhere, seek specialist legal advice.
If you need legal assistance, we can help.