Transition to Education, Health & Care Plans

The Children & Families Act 2014 has now been in force since 1 September 2014. Since that time, many local authorities, schools and practitioners will have been trying to keep up with the guidance and regulations that have been issued to support the new legislation.

One key question that many professionals working in SEN have been asking is precisely how the ‘old’ system of Statements of Special Educational Needs and Learning Difficult Assessments (LDAs) will transfer into the new system of Education, Health & Social Care Plans (EHCPs).

The Department of Education has issued a number of draft guidance documents since March 2014 which have given slowly increasing detail about how the transition is due to take place. These guidance documents have been issued in an attempt to give a summary to the implications for:

• Children & Families Act 2014;
• Children and Families Act 2014 (Transitional and Savings Provisions) (No.2) Order 2014;
• Education Act 1996; and
• Learning & Skills Act 2000.

The Department for Education’s most recent version of the guidance is dated 31 August 2014.

The document now extends to approximately 40 pages and provides a lengthy, and occasionally concise, explanation of the timetable of the transition from the SSEN and LDA system into the EHCP system. It also gives some passing references to how the transfer process is to take place for children and young people currently supported with SSENs or LDAs.

What the guidance does well is to provide an easy-to-use reference which details the statutory expectations and the statutory requirements about the timings of transfer. It also provides a helpful summary for practitioners about how the Special Educational Needs & Disability Tribunal will handle appeals during the transition period (which is likely to extend until March 2018).

Of course, the distinction between ‘expectation’ and ‘requirement’, in practice, is significant. It is anticipated that most local authorities will be unlikely to have resources to do little more than comply with the requirements. This will be of little comfort to parents and/or their solicitors but ultimately is due to the underpinning legislation.

The difficulty with the guidance is that it still heavily relies upon local authorities having a detailed understanding of their obligations (which have not been made entirely clear), and being willing and able to discharge those obligations fully and adequately. Phrases such as, ‘it is for local authorities to determine when children and young people will be transferred to the new SEN and disability system during the transition period’ [para 5.5], and, ‘The precise purpose of the meeting will vary depending on the point during the transfer review that the meeting takes place. It is for local authorities to determine who should attend the meeting to ensure it achieves its purpose’ [para 6.6] are unlikely to give any reassurances to parents or their solicitors.

The guidance, therefore, does give us some helpful indications as to the timetables that we should be working towards and how to approach the Tribunal for the next 4 years. However, in terms of the process itself, it would seem that much is left to local authorities to determine themselves.