26th February 2019 • Emma Cooper
If your child has special educational needs (SEN), the 15th February was a date of great importance.
This was the date when the local authority (LA) must have issued a new Education, Health and Care Plan (EHCP) for young people transferring to the next phase of their education.
The date was a statutory deadline by when the LA must have reviewed, amended and finalised your child’s EHCP so that it names the new placement your child will be moving to at the start of the next academic year in September.
If it hasn’t all gone to plan for you and your child, solicitor Rukhsana Koser from Langley Wellington LLP Solicitors has some advice for you.
What should the LA have done?
By 15th February the LA must have issued a final EHCP for every child going through a phase transfer. The deadline applies where a child or young person is moving from:
- An early years provider to school
- Infant school to junior school
- Primary school to middle school
- Primary school to secondary school
- Middle school to secondary school
What if you are unhappy with the school named on your child’s EHCP?
As parents, you can challenge the LA’s decision and the school named in Section I by appealing to the Special Educational Needs and Disability (SEND) Tribunal.
The statutory deadline of 15th February exists to allow parents sufficient time to challenge the LA’s decision by lodging an appeal with the SEND Tribunal and allows for the appeal to be heard and determined before the start of the next academic year.
What can you do if the LA has missed the deadline?
If your LA has missed the 15th February deadline, you should act immediately and contact the LA to find out what is causing the delay. You should also ask the LA to issue a Final EHCP immediately, in order to generate your right of appeal to the SEND Tribunal. Tribunal appeals take time to prepare and once an appeal is lodged, a 12 week appeal timetable is set and a written decision is sent out 10 working days after the appeal hearing. Therefore, time is of the essence.
If the LA has missed the statutory deadline parents must NOT allow the situation to run on indefinitely. The SEND Tribunal is very busy, and the number of appeals dealt with the Tribunal increases during the summer term. To ensure parents either come to an agreement with the LA during the appeal or have a Tribunal decision by the end of July, you must act promptly.
If the LA fails to issue an EHCP by 15th February and continues to delay, your child (represented by you) can take action against the LA for failing to carry out its statutory duties. This can be done by firstly issuing a Pre-Action Protocol letter for Judicial Review and thereafter Judicial Review proceedings if all other options have been exhausted without success. In other words, if you have tried speaking to someone at your LA or put your concerns in writing and the issue still has not been resolved, further action must be taken.
Rukhsana Koser is a solicitor in the Education Department of Langley Wellington LLP Solicitors.