Consultations are, it seems, like buses. You wait two years for one, then three come along at once. Or, in the case of this new consultation about EHCP annual reviews, if you don't like a legal clarification that's been made, don't worry, you can just change the law concerned.
That's the essence of another new consultation about SEND.
It does seem at this point like the Department for Education is trying to ensure that anyone who cares about defending children's rights is so buried under paperwork that they might just be crushed by the weight of it.
This new consultation, trailed in the SEND Green Paper, comes in the wake of a High Court judgment in March 2022. The judgement clarified that the SEND Regulations 2014 require LAs to issue proposals for amending an existing Education, Health and Care plan (EHCP) within four weeks of a review meeting. While the High Court acknowledged LAs have limited resources, it said this could not affect what the regulations meant, which the judge concluded were clear. As IPSEA summarised:
"The High Court decided that, when a LA ends an annual review by proposing to amend the EHC plan, the regulation which requires the LA to “notify” the parent or young person of its decision within four weeks of the annual review meeting, and the regulation which sets out the process for amending the EHC plan, must be read together.
"This means that LAs must notify the parent or young person of the decision to amend the EHC plan AND what the proposed changes actually are within four weeks of the annual review meeting. The final EHC plan must be issued as soon as practicable and within a further 8 weeks maximum. Therefore, the LA must send the parent or young person the final amended EHC plan within a maximum of 12 weeks of the annual review meeting. "From the IPSEA summary of the judgement
Yes, so why the need for a consultation?
This particular government has a habit of changing the law where they find it to be inconvenient, as disabled students needing financial help from Universal Credit have discovered to their cost. Clearly, local authorities didn't like the High Court's decision, so have pressured the Department for Education to act.
I asked IPSEA for their views of these proposed changes:
“It’s unfortunate, to say the least, that the Department for Education is pushing back on the High Court ruling in March this year that local authorities must draft amendments to a child or young person's EHC plan within four weeks of an annual review meeting, and is proposing to extend the time to eight weeks instead.Wendy Rainbow, Head of IPSEA's Legal team
"When a child or young person’s needs have changed or increased and they are waiting for special educational provision that could make all the difference, every week is significant. We hear all the time from families about EHC plans that are not amended in line with a child or young person’s needs, and the negative impact this has on their education and wellbeing. It appears that this is not a high priority for the Government.”
These regulations are well known and have been in place since 2014, without any previous legal challenge. But this consultation means the DfE is now seeking to gather "views and evidence" on the regulations, to enable the production of "quality amended EHC plans". Or, if "this clarification" of the existing law means, "there is now too high a risk of poor quality plans and poor decisions about changes to provision and/or placement. Given the nature of the processes required in preparing draft proposals, we intend, through this consultation, to test whether introducing an additional period of up to four weeks would be reasonable."
So note that nothing has changed, except that local authorities didn't like the way the judgement went. It's pretty disgraceful. Obviously, many EHCPs aren't fit for purpose going into the annual review to start with. A few extra weeks won't change that.
What will? If LAs are under pressure through resourcing, then the logical thing for the Government to give LAs some more money specifically for this purpose, to fund additional SEND EHCP writing-staff staff, right? Wait, what? Let's maybe change the law instead, did you say? Hmmmm.
What do the rules say now?
Currently, annual reviews work as in our flow chart below. You can also read more about the current process on the IPSEA website, where it is explained in detail
What do the proposals entail?
The plans extend by four weeks (from 12 to 16) the legal timescale local authorities have to inform parents that a plan is being amended (not issue a final amended plan), and the time available to actually amend the plan: Therefore:
- Amending an EHC plan within four weeks of a review meeting; to
- Having to do this as soon as practicable but in any event within eight weeks of the review meeting.
What is involved in the consultation?
So, quite a short consultation, right? Nope, there are THREE proposals and FIVE consultation questions. They are as follows:
EHCP Annual Review Proposal One
Changing the law from the current four weeks to amend a plan after an annual review meeting, to a maximum of EIGHT weeks, but "as soon as practicable". (This renders the High Court ruling moot)
- (up to) four weeks for the notification of the decision after the review meeting;
- a draft plan as soon as practicable but within eight weeks of the review meeting (1 & 2 currently take FOUR weeks)
- A final plan as soon as practicable but in any event within EIGHT weeks from the issue of the draft proposals. (Currently four)
So, a final plan would be issued within 16 weeks instead of 12 -- a delay of a four weeks. If this is a ‘phase transfer’ review there are also specific dates for amending the final plan following a review set out in regulation 18 of the SEND Regulations 2014, such as 15 February or 31 March of the relevant year depending on the circumstances. What happens if this deadline is before the 16 weeks? Which takes precedence? You might want to address this in your response.
Consultation Question One:
To what extent do you agree or disagree that, where an LA proposes to amend an EHC plan after a review meeting, it should issue proposed draft amendments to the plan as soon as practicable after that meeting and in any event within eight weeks?
Answer options: Strongly Agree, Agree, Neither Agree or Disagree, Disagree, Strongly Disagree. Say why is you don't agree and what you think the LAs deadline should be, and why.
SNJ's Proposal One Ponder points:
- Is this a reasonable, or wanted change? Do you think it matters?
- Does the law need changing? Is it the timescale that's the problem or the resourcing, or something else?
- Have you found the current law is usually broken? If so, what are the reasons for this?
- If an amended plan is unacceptable is it because of the time available to prepare it or another reason?
- If you think a different deadline would be best, what would it be and why?
- If the change goes through, would an additional four weeks make a better plan and will it make a difference positively or negatively for your child?
EHCP Annual Review Proposal 2
The first proposal added an extra stage in the process when deciding whether to amend a plan after a review meeting. Each stage has separate timescales. Proposal Two has more detail about the two stages of actions needed in Proposal One.
- The LA must, within FOUR weeks of a review meeting, give a notice to the parents or young person of its proposals to amend the plan. The notice must include:
- confirmation of the process and timescale for the procedure that must follow.
- Does not need to say what amendments will be made, as more information may be awaited.
- A notice specifying the proposed amendments must be issued within EIGHT weeks of a review meeting.“This might be in the form of a draft amended plan."
- The LA would need to make clear what the planned changes are
- It would also need to send copies of any supporting evidence
- “The LA would have the discretion to provide any further information about its intentions at any point, but would not be under an explicit statutory duty to do so.”
This gives a total of 12 weeks.
Consequential amendment to the regulation relating to Education, Health and Care plans being amended without a review
LAs can amend a plan at any time, but this is in addition to an annual or phase transfer review meeting, but (as per Regulation 28), this must follow the same annual review statutory process from the stage of issuing the notice of intention to amend a plan
“We would need to amend regulation 28 so that there was no ambiguity over what the LA needed to issue and when. There would (as now under regulation 28) be no explicit statutory duty on an LA over the process or timescale leading up to the communication of its decision to propose amendments without a review.”
Consultation Question TWO
When an LA decides to amend an EHC plan after a review meeting, do you agree that that the following two stage procedure is required:
- issue a notice confirming amendments will be made, the process to make them, and the timescale; and
- to issue a notice for the proposed amendments, including copies of any supporting evidence?
Answer options: Strongly Agree/ Agree/ Neither Agree nor Disagree/ Disagree, Strongly Disagree. If you disagree, say why.
SNJ Ponder points:
- Do these changes make sense?
- Are they needed?
- Will adding an extra stage and time mean that a child has their access to a suitable education delayed?
- Does it give more time to gather evidence and is this a good idea?
- Is it likely that this extra time till be used to gather more information?
EHCP Annual Review Proposal 3:
This proposal is to give more time before a review meeting for updated advice and evidence to be gathered. At the moment “At least two weeks’ notice before the date of the meeting MUST be given”.
Now, it stands to reason that an annual review is every year. But it’s not the same date every year, and sometimes it’s not even within 12 months (even though it should be by law). So it can come as a surprise to get a notification that an annual review is happening and you can feel on the back foot trying to gather together all the information and reports you may need, let alone decide what new ones may be needed and have them scheduled in by the relevant professionals (if that’s even possible)
So this proposal seems to seek to tackle this
“We believe it might be in the interests of the CYP and families if those preparations for a review meeting had to begin earlier. This would mean that the LA, parents or young person and the other bodies involved in the review had longer to absorb the advice and information that comes back. The extra time would allow efforts to be made before the meeting to secure any key inputs that are missing”.DFE proposals
However, the proposal is only for ONE additional week.
Consultation question 3
Do you agree with this proposal to add an extra week to the minimum time an LA should give before an annual review.
Answer options: Strongly Agree, Agree, Neither Agree or Disagree, Disagree, Strongly Disagree
If you don’t agree, say how far in advance of the meeting you feel this advice and information should be circulated.
SNJ Ponder points
- Is this a good plan?
- Is one additional week enough?
- Wouldn't it make more sense for more notice to be given before the meeting than more time after it? This would surely concentrate minds proactively rather than in panic-mode.
- How hard is it for an LA to be organised and give a whole month’s notice anyway?
If these changes go through, non-statutory guidance would be created to accompany the legislation; and changes would be made to the SEND Code of Practice (and of course along with any other changes in the SEND & Alternative Review Green Paper
The document also includes an Equality Impact Assessment (surprise!), concluding that the proposals will have a positive impact on equality and on children’s rights by:
- reducing the risk to the quality of plans, saying as there “is limited evidence” (how about this?) how achievable the current statutory timescales for EHCP Annual reviews are. But, “a four week deadline could put the quality of plans at risk and could lead to poor decisions about the provision and/or the placement “
- If (exceptionally) professionals need to provide advice and information after a review meeting, there may (currently) not be enough time to offer good information, risking the quality of plans.
- The proposals don’t change the availability of EHCPs to those children who need them
- They haven’t “identified any risks to suggest that our proposals will prevent children from accessing the rights guaranteed by the United Nations Convention on the Rights of the Child.”
However, they would like views on whether their proposals on balance have a positive impact on equality and children’s rights.
Consultation question 4
Do you agree the proposals will have a positive impact on those with particular ‘protected characteristics’ such as a disability and on children’s rights?
Answer options: Strongly Agree, Agree, Neither Agree or Disagree, Disagree, Strongly Disagree. If you disagree, say why.
SNJ Ponder points:
- We haven’t included all the impact assessment, so you may want to read it from page 24 of the consultation document
- Not identifying risks doesn’t mean there aren’t any.
- What is missing from this consideration of an impact on equality?
- Does it take into account the potential impact on any protected characteristics of SEND parents? Especially in relation to only adding one additional week to the notice before a meeting.
- Does it lengthen the period for disabled children to get access to a suitable education, therefore making their lives more difficult?
- The DfE hasn’t done an impact assessment for the Green Paper, which needs to happen, so it’s positive that there is one here. However, is this because they’ve done the right thing, or because they think they’re on more solid ground, or both?
Lastly, a catch-all: Is there anything else you would like to say about the proposals in this consultation?
Consultation question 5
- Think here about the point near the top about transfer review deadlines and which takes precedence under these plans.
- What else does your experience with your child’s annual review tell you with regard to these proposals?
The consultation closes on 12 August (You get eight weeks) I can't see accessible/BSL/easy read versions, but I will check further on this. There is an email address for submissions as well: EHCPAnnualR.email@example.com
- EHCP Annual Review: Our stats show there’s nothing annual about them…
- Are EHCP Annual Reviews being unlawfully delayed by too-busy LAs?
- Updated EHCP Flow charts and a brand new one for the Annual Review!
- How Soon After The Annual Review Meeting Should We Receive A Response From The LA?
- Explaining the Annual Review for a child with an Education, Health and Care Plan
- Should the LA come to our Annual Review?
- The SEND Review was published on Tuesday 29th March 2022. The consultation closed on July 22nd
- There is a dedicated website with alternative versions, languages and formats here
- The Green Paper is a DISCUSSION document, split into six chapters, with 22 consultation questions.
- See a list of all SNJ's posts on the SEND Review, including our analysis articles.
- Alternative versions of the consultation document: Large print PDF version | Order a copy | Easy read version | British Sign Language (BSL) version | Guide for children and young people
- Can you help support our work?
- Chaos, mistrust, poor inclusion, and no communication: How Kent’s SEND provision has failed its disabled children and their families - November 10, 2022
- Ofsted and ONS offer further evidence that lack of funding, training and specialists damages children with SEND - November 8, 2022
- No specialists = No support: The future for children with SEND is bleak without a trained workforce to support them - November 3, 2022