Plugging the gap on the never ending Annual Review cycle

The long awaited High Court judgment in R (L) v Devon CC [2022] EWHC 493 (Admin) finally provides clarity on the process of amending Education, Health and Care Plans (EHCPs) after annual reviews.

In short, if the local authority proposes to amend the EHCP after an annual review, it must send its proposed amendments within four weeks of the annual review meeting together with its notice.

If amending the Plan, the entire annual review process must be completed within 12 weeks of the annual review meeting.

What does the case mean for parents, schools and local authorities?

The case provides a clear summary of the steps required both pre and post annual reviews. Local authorities will need to be aware of the need to issue a proposed amended EHCP promptly after an annual review. This means that local authorities and schools and colleges will need to ensure that annual reviews are conducted correctly in the first instance, that information is sought well in advance of annual review meeting. Parents will also need to ensure that they have flagged up all issues ahead of the meeting; the annual review meeting should conclude with changes required to the EHCP, if any, and not start of the process of seeking professionals’ opinions.

The issues around Annual Reviews

The EHCP must be reviewed by the local authority at least every 12 months. This is to ensure that the EHCP remains up-to-date and appropriate. There is a set timetable to be followed before and after an annual review with the local authority required to issue a decision letter within four weeks of the annual review meeting notifying parents:

• whether or not it intends to amend the EHCP; or
• it will maintain the EHCP as it is; or
•  it will cease to maintain it.

A right of appeal to the Special Educational Needs and Disability (SEND) Tribunal follows upon completion of the annual review process.

The problem with annual reviews was that there was no explicit timetable after the issue of its decision letter within four weeks for the local authority to issue a proposed amended EHCP.  The only guidance is in the SEND Code of Practice 2014 which sets out that ‘should start the process of amendment without delay’. This often resulted in what became known as the never-ending cycle of annual reviews, where annual reviews were never completed from one year to the next and the EHCP remaining in a constant draft/proposed state. The result being that the EHCP never correctly identified needs and/or provision and there would never be a right of appeal to the SEND Tribunal to challenge content. Significant delays often meant statutory deadlines for issuing EHCPs ahead of transition transfers were missed with appeals heard into the autumn term and a late start to school. Incomplete EHCPs were being sent out to consult with schools and colleges to inform on placement offers.

In the Devon case delays ranged from 9 – 25 weeks.  Whilst individual matters had resolved, permission to appeal was granted to determine the anomaly. 

The Decision

The court decided there is a fixed timetable to be followed by local authorities in England when completing annual reviews, as follows:

• Within two 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 four 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, or cease to maintain it. When the EHCP is to be amended, the local authority must include a draft amended EHCP.
• 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.
• The local authority must issue a final amended EHCP within 12 weeks of the annual review meeting.

Whilst the clarification means that local authorities have relatively little time to issue the proposed amendments (potentially 2 weeks from when they receive annual review papers from schools/colleges), it must be remembered that the annual review process, if conducted correctly, will have collated all professional advice that is relied upon weeks before the annual review meeting. Problems will occur if this advice has not been collated fully and in good time. If this happens, and if parents do not agree with the content of the final Plan, then with this case’s clarification, they will know that they will have a right to appeal to the SEND Tribunal within a maximum of 12 weeks from the annual review meeting.

You can read the case fully here.

If you need any help with annual reviews or other issues around EHCPs, please contact us. We’re here to help.