Annual Reviews and the Loop

A reminder of parent and young person’s rights under Annual Reviews.

What are the rights of appeal following Annual Review?

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 2 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 plan and then within 12 months of the completion of any previous review.

The flow chart 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 naming 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 1of the 3 options and within the timelines failing which Judicial Review should be considered.

What are local authorities doing?

What we are seeing however is some Local Authorities seeking to introduce a "4th option" a re- assessment 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 should take 14 weeks to conclude from the date of the decision to re-assess, in contrast to the 8 weeks required following an Annual Review decision to amend – a further 6 weeks.

See the Flow chart below.

Invariably timelines slip and a year later parents are often still in the re-assessment process with no clarity or certainty and without closure of the Annual Review process thereby missing the right of appeal which at least offers the certainty of a timeline offered by the tribunal process.

The time for assessing a child or collating up-to-date information should be in the period running up to the Annual Review. If this has been done correctly, then a decision to re-assess should only have to be undertaken under exceptional circumstances.

What we recommend to parents

Our recommendation to parents is make sure your Annual Review remains on track and provide as much detail to the Local Authority in the run up to your Annual Review Meeting. The Local Authority has 3 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 "re-assessment” and indeed we always encourage ongoing engagement with your Local Authority. Don't lose the benefits envisaged by Annual Reviews.

An Annual Review must take place within a year of the last Annual Review or anniversary of EHCP with 3 options available to the Local Authority each triggering appeal rights for parents/young person. The Annual Review anniversary is NOT the meeting date rather the conclusion of the Annual Review process. Your next Annual Review should be concluded on or before that date.

The Local Authorities’ decision to re-assess can occur at any time.

Know the difference and stick to your pathway timeline – avoid getting caught in the Annual Review Loop.

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.