At this time of the year, we are often inundated with questions from parents regarding phase transfers and what Local Authorities should be doing. A question which is coming up much more than it should be in our view, is whether the Local Authority should be holding a review of the plan for the phase transfer?
The short answer is yes. Regulation 18 of the Special Educational Needs and Disability Regulations 2014 sets out clearly the circumstances in which the Local Authority must review a plan:
where a child or young person is within 12 months of a transfer between phases of education, the local authority must review and amend, where necessary, the child or young person’s EHC plan before—
(a) 31 March in the calendar year of the child or young person’s transfer from secondary school to a post-16 institution; and
(b)15 February in the calendar year of the child’s transfer in any other case,
and where necessary amend the EHC plan so that it names the school, post-16 or other institution, or type of school or institution, which the child or young person will attend following that transfer.
Regulation 18 clearly states that the Local Authority must review the plan. Regulation 19 & 20 covers how a review of the EHC Plan must be carried out, which includes consulting with parents, the young person and school, and considering any progress towards outcomes. Invites must be sent out to the relevant professionals involved and advice sought from these.
What we are seeing when discussing this with parents, is Local Authorities stating they do not need to hold a review of the EHC plan, and they will go straight to amending the EHC Plan and this will be provided by the relevant deadline. This entirely ignores the requirements of Regulation 18.
Alternatively, we are also seeing Local Authorities holding these review meetings in the previous academic year and leaving the process until the phase transfer deadline. This ignores the statutory timescales relevant to the Annual Review process. It should be a 12-week process, 4 weeks to provide a decision and 8 weeks following this to amend the plan. The LA are therefore acting unlawfully.
The issue with these approaches from Local Authorities is twofold:
1. Parents do not get an opportunity to sit down with the school, LA and professionals working with the child/young person to discuss current needs, future provision and what the next appropriate placement should be. There is no opportunity to formally discuss. The next avenue to do so would be mediation or an appeal to the Tribunal.
2. Alternatively, if these meetings are taking place in the previous academic year, the child/young person’s needs may well have developed positively or negatively, and parents may well not have had the opportunity to consider the next placement at that time, making the review at that time pointless.
You are well advised to require your Local Authority to hold the phase transfer review and this should have happened by now.