Annual Reviews and the Expired Loop!

An update to an article that we first produced in 2018 and following the recent case of R (on the application of L and others) v Devon County Council [2022] EWHC 493 (Admin) which has put to bed the Loop!

A reminder of parent and young persons’ rights under Annual Reviews

Section 51 Children and Families Act 2014 (CFA) gives parents and young persons the right to appeal of the Local Authority’s decision following Annual Review. The appeal must be made within two months of the decision letter or one month from the date of the mediation certificate, whichever is the later date.

The first Annual Review must be held within 12 months of the date of the EHCP and then within 12 months of the completion of any previous review.

Flow chart 1 sets out the process and timescale.

The Annual Review should be timed carefully where a child/young person is within 12 months of a transfer between phases of education, for example to secondary school or post 16 institution, where the Local Authority must review and amend where necessary the EHCP before:

• 31 March in the calendar year of the child/young person transfer from secondary school to post 16 institution, and
• 15 February in the calendar year of the child’s transfer in any other case

to include the name of the school or institution or type of school/institution.

All Annual Reviews from Year 9 onwards must focus on preparing for adulthood, including employment, independent living and participation in society.

It is important that parents make sure the Local Authority is kept to one of the three options and within the timelines, failing which  parents/young people can quote and rely upon R (on the application of L and others) v Devon County Council [2022] EWHC 493 (Admin) and start the process of judicial review.

Flow Chart 1 - Annual Review Process and Decision to Re-Assess 

What are some Local Authorities doing?

Some Local Authorities failed to issue a formal decision giving a right of appeal within 4 weeks of the Annual Review meeting because they were going to amend the Plan. The problem lay with the law remaining silent about the starting point of the timetable following a Local Authority’s decision to amend the Plan after an Annual Review with the SEND Code of Practice 2014 simply stating that it ‘should start the process of amendment without delay’ with no defined timeframe to issue a proposed amended EHCP. The timetable was therefore suspended pending delivery of a final amended EHCP.

Some Local Authorities introduced a "4th option", a reassessment which Local Authorities can quite lawfully undertake at any stage in the year under Section 44(3) CFA 2014. Often Local Authorities decide more evidence is required before they can properly amend the EHCP. This process must take no longer than 14 weeks to conclude from the date of the decision to reassess, in contrast to the 8 weeks required following an Annual Review decision to amend – a further 6 weeks.

Invariably timelines slip and a year later parents were often still in the “reassessment process” or further assessment process with no clarity or certainty and without closure of the Annual Review process thereby missing the right of appeal arising from an amended Plan which at least offers the certainty of a timeline offered by the tribunal process.

Local Authorities’ decision to reassess can occur at any time not as a part of the Annual Review process. See flow chart 2 below:

FLOW CHART 2 – REASSESSMENT WITHIN AR – THE LOOP

STARTS AS AN ANNUAL REVIEW PROCESS

What has the case law done?

The Devon case clarifies the Annual Review process. 

The High Court decided there is a fixed timetable to be followed by Local Authorities in England when completing Annual Reviews and follows flow chart 1 above.

A proposed amended EHCP will need to be issued and completed promptly after an Annual Review. Local Authorities and schools and colleges will need to ensure that Annual Reviews are front-loaded properly i.e. information is sought from professionals before the Annual Review meeting, and not after the meeting, as is often the case.

Within 2 weeks of the Annual Review meeting, the school or college must send a report to the Local Authority and everyone invited to the meeting. The report must set out recommendations on any amendments required to the EHCP.

Within 4 weeks of the Annual Review meeting, the Local Authority must send a decision letter to the parents or carers notifying them whether they intend to amend the EHCP, maintain the EHCP as it is with no changes, or cease to maintain it.

When the EHCP is to be amended, the Local Authority must include a draft amended EHCP with it’s decision letter.

Where an amended EHCP is issued, parents or carers or the young person will be given 15 days to provide comments on the draft amended EHCP.

If amending a Plan, the Local Authority must issue a final amended EHCP within 12 weeks of the Annual Review meeting.

The meaning of ‘notify’ in Regulation 20(10) of The Special Educational Needs and Disability Regulations 2014 means to notify the relevant people of the ‘substance’ of the way forward. Where amendments are to be made to an EHCP, that ‘substance’ includes a draft of the proposed amendments. Therefore, when the Local Authority issues its notice within 4 weeks of the Annual Review meeting, if it is proposing to amend the EHCP, it must enclose the draft amended EHCP at the same time.

Our recommendations remain:

Make sure your Annual Review remains on track and provides as much detail to the Local Authority in the run up to your Annual Review Meeting.  If this has been done correctly, then a decision to re-assess should only have to be undertaken under exceptional circumstances.

The Local Authority has three options at the end of this process - make sure they make their decision and at least trigger a parent’s right of appeal.

An appeal can always run alongside reassessment and indeed we always encourage ongoing engagement with your Local Authority.

Don't lose the benefits envisaged by Annual Reviews.

As a final note the EHCP consultation issued on 15 June 2022 is seeking views upon proposed changes to the timetable following Annual Reviews – so watch this space. The response date is 12 August 2022.

If you discuss this or any similar problems with your child’s educational provision then please contact us at senexpertsolicitors@boyesturner.com – our expert SEN solicitors are here to help.