Key Education Health and Care Plan diary dates for the year ahead

If you are a parent with a child or young person (YP) with an Education Health and Care Plan (EHCP), then now is a good time to look ahead at the New Year and to plan for the key dates in the SEN calendar.

Whilst timescales for the EHCP process are legally binding on local authorities, e.g. six weeks to respond to a request for an EHC Needs Assessment and twenty weeks to complete the process from as assessment request to issuing a final EHCP, many parents experience delays and lack of communication from their authority at some, if not all of these stages. Therefore, it is very important to be prepared for key EHCP deadlines that are coming up this year, so you can make sure you have all the necessary information to put to your local authority in good time to account for any potential delays or necessary appeals.

Education Health and Care Plan key dates

15 February

Deadline for local authorities to have held a transition review of the EHCP and issue its decision confirming the placement named in Section I of the EHCP for the child to start from September. There are a number of school transitions where this deadline will apply:

• early years provider to school
• infant school to junior school
• primary school to middle school
• primary school to secondary school, and
• middle school to secondary school

The most common transition is from primary to secondary and this can pose a potentially tricky time for the child in question, particularly if their current school does not cater for secondary and so a change of placement is necessary.

Ahead of any transition review make sure you do your research on potential schools. Visit lots of schools and the types of school could mainstream, specialist and independent. If you have a preference/s it is important to also take your child for a visit. Check what information the school requires to be able to confirm if they can meet needs – the EHCP and appendices (Section K reports) will be the minimum.

Do they need to carry out an assessment or trial, particularly if the placement is boarding? Aim to provide as much evidence as you can about your preference to the local authority, who should consult with your preference ahead of the transition review. You will also need to show you have considered the school being proposed by the local authority, and if you do not think it is suitable to meet needs do you have evidence to back this up? It might be the case the local authority is proposing a mainstream school and you are seeking specialist, or a local authority maintained specialist placement compared with an independent specialist placement.

This is also the time to check you are happy that the description of your child’s needs and provision to meet those needs is up to date, specified and quantified. We can advise before and after your transition review if you have questions about the process or next steps.

After the review, if the local authority issues the amended EHCP and does not name your preference in Section I, and you have evidence this placement can meet needs, then you should consider lodging an appeal with the Special Educational Needs and Disability Tribunal (SENDIST) to challenge the local authority’s decision. This is also a further opportunity for you to challenge the contents of Sections B (needs), F (provision) as well as (but currently only up to 31 August 2020) the health and social care parts of the EHCP. SENDIST can only make non-binding recommendations in relation to health and social care; their decision in relation to B, F and I (educational parts) however is binding on the local authority. You will have this right of appeal once you receive the local authority’s decision letter, and will have two months to contact mediation. Your appeal must be lodged within two months of the decision letter or one month from the date of the mediation certificate, whichever is the later date. We can help with an appeal to SENDIST or answer your questions about what is involved in an appeal.

31 March

Deadline for local authorities to have held a transition review and issue a decision in relation to the EHCP for a YP who is due to move from secondary education to either a post-16 placement or apprenticeship in September. As for transition to secondary placement, make sure you do you research ahead of the review and provide evidence to your local authority about your/YP’s preference.

You/your YP will also have a right of appeal to SENDIST once the local authority issues its decision. Again, we can explain the next steps involved and assist with an appeal.

If you are thinking of appealing either a post-16 or secondary placement named in your child/YP’s EHCP it is important to act quickly as there will be limited time to get your appeal registered, as well as gathering any further evidence, in order for a tribunal hearing to take place, and a decision reached, before the summer holidays so a decision is known before September. Consider seeking legal advice, particularly if you may need additional evidence to support your appeal.

August

SENDIST does not hold hearings that parties can attend during August, due to holidays and schools being closed etc. This means if you want to appeal a transition review decision (above) then getting your appeal in as soon as possible is vital to have the best chance of securing a hearing date ideally before July, when holidays and school closures begin taking effect, so your witnesses and the local authority are able to attend in full and, hopefully, a tribunal decision is issued before the summer holidays fully kick in.

Once SENDIST registers your appeal they will issue a 12-week timetable with deadlines for both you/your YP and the local authority to comply with. Starting your appeal with evidence already available about your preferred placement, and any amendments required to needs and provision, and health and social care if applicable, will not only assist you in meeting these deadlines, but also hopefully help in negotiations with the local authority to try and reach agreement if possible. Each case will depend on the strength of each party’s evidence and the placements being proposed as to whether agreement can be reached or a decision will need to be made by SENDIST.

It is important to remember that whilst SENDIST will not hold oral hearings during August if both parties make a request for a ‘papers’ hearing then SENDIST may grant this to take place during August. A papers hearing means that the tribunal panel will make a decision on the papers alone. This means that neither you/your YP or the local authority will attend the hearing so you will not have chance to give further evidence on the day of the hearing.

Also, if you have any appeal deadlines set for August, e.g. for further evidence, you will still have to comply with this deadline. Bearing in mind schools will likely be fully closed during this time make sure you have your evidence ready ahead of this deadline ready to submit.

Due to an increasing number of appeals being registered with SENDIST, and a strain on SENDIST resources and hearing venue availability many parents are now seeing their appeals being delayed. Unfortunately this has also resulted in transition appeal hearings not being held until at least September, October, or even November when the child/YP should have already started at their placement. With then up to two weeks for a decision to be issued following a hearing, this can mean some children/YP are delayed in starting at their new placements until potentially January the following year. This may mean children/YP are without education from September until a decision is reached, or potentially having to attend the local authority named placement during the interim.

Getting your appeal lodged with SENDIST as soon as possible is therefore very important! Whilst we cannot foresee if SENDIST will experience delays during the course of a particular appeal we can assist you with managing the day to day requirements, liaising with the local authority, schools, experts and SENDIST, as well as representing you at the hearing, should it not be possible to reach agreement with the local authority beforehand.

When should you start to plan for a transition?

You should start researching schools at least a year before transition to a new stage of education. By starting early you will allow yourself time to gather your evidence, and put forward your preference to your local authority, ahead of the transition review. Ask for information about the local authority’s proposed placement (if they know it at this stage) so you can consider this also and, if necessary; begin to gather evidence why this placement would not be suitable.

The EHCP transition process can be stressful and we can help at any stage. We recommend that you seek legal advice sooner, rather than later, so we can review your case and advise on the next steps as much as you need us to, including hearing representation.

Boyes Turner's Special Educational Needs Team can be contacted on 0118 952 7219 or by email at senexpertsolicitors@boyesturner.com