After months of form-filling, evidence gathering, panel meetings and bureaucratic slow-dancing, your child or young person now has an Education, Health & Care Plan (EHCP). With a bit of luck, a dollop of funding, two teaspoons of collaborative working and three tablespoons of expert practice, the legally-binding support that the EHCP brings is hopefully now enabling them to achieve the outcomes they want.
But the EHCP itself is just a piece of paper – a snapshot in time, capturing needs, provision and intended outcomes that real, live human beings have to act on. Unless EHCPs are kept up-to-date, unless they’re reviewed and tweaked on a regular and frequent basis, their value drops sharply.
So how well are EHCPs being kept up-to-date? We did some digging, and the answers aren’t encouraging.
The Annual Review Process
The law provides a nice, clear framework to make sure that EHCPs stay fresh. Part 3, Section 44(1) of the 2014 Children & Families Act says that
“A local authority must review an EHC plan that it maintains
(a) in the period of 12 months starting with the date on which the plan was first made, and
(b) in each subsequent period of 12 months starting with the date on which the plan was last reviewed under this section.”
The 2014 SEND Regulations outline the process that has to be followed for an EHCP annual review – we’ve produced an easy-to-follow flow chart that explains it here . (View all our SEND system flow charts here)
The process includes a meeting with parents, carers, and the young person with SEND. It’s sometimes assumed that this annual review meeting is the annual review itself – that’s not the case. The meeting is just part of the process.
The actual review of the EHCP is done by the local authority. Drawing on the information gathered in the annual review meeting, the LA has to review the EHCP and make a decision about what to do with it – maintain it as-is, amend it, or bin it.
The LA has a statutory duty to take this decision within four weeks of the annual review meeting. As part of this duty, the LA also has to notify parents, carers and the young person within four weeks, explaining what the LA has decided to do, and detailing families’ rights to appeal the LA’s decision and to seek mediation if necessary.
That’s the process in theory. But in recent months, we’ve been contacted by a wide range of professionals and parents, who’ve all expressed concern that this process isn’t working well on the ground.
Several school leaders told us that they send detailed paperwork to the LA after EHCP annual review meetings, and then hear nothing back. Local authority professionals have told us that they wait months for schools to return EHCP annual review meeting paperwork. Parents have told us that they’ve been waiting not weeks but YEARS for changes to be made to EHCPs following an annual review.
So what’s happening in reality?
Mess-up of epic proportions
We asked 149 LAs how many EHCP annual reviews they’d completed in 2018, and how many ARs they’d completed in the first 9 months of 2019. We also asked them what their current annual review caseloads looked like: in particular, how many ARs were behind schedule.
We got responses from 122 LAs - but over half of them couldn’t provide useful information on their annual review caseload.
In all, 69 of the 122 LAs told us that they didn’t know the answers to these questions. In almost all cases, these LAs had the information - but the only way they could retrieve it was by manually going through EHCPs one-by-one, to find out which Annual Reviews had been completed and which hadn’t. And they didn’t have the time and resources to do that.
Many LAs have electronic EHCP casework handling systems – but the systems some of them use simply aren’t set up to track the progress of annual reviews. Some told us that they didn’t track ARs because the Department for Education didn’t require them to provide data on the AR process.
We did get answers from 53 LAs - and the data they provided shows that like every other part of the SEND system, the Annual Review process is a postcode lottery.
- Three of the 53 LAs that responded appear to have completed all of the EHCP Annual Reviews that they should have completed in 2018.
- At the other end of the spectrum, seven of the 53 LAs had completed fewer than 25% of them in 2018. Some had completed just 5% of them – and one LA said that it hadn’t completed a single annual review at all in 2018.
- Overall, the 53 LAs that knew something about their EHCP Annual Review caseload in 2018 had completed just over half the Annual Reviews that they should have that year – 52%, or 54,500 out of 104,500. The percentage was slightly higher for the first 9 months of 2019, but not much.
- From Department for Education data, we estimate that roughly 305,000 statutory plans should have had a review in 2018. We only know that 54,500 got reviewed, and we don’t know whether even these were done lawfully. And the data we have is from those LAs who are most on top of their Annual Review processes - most LAs don’t know one way or another how they are doing.
- The 53 LAs that responded with data told us that as of October 2019, they collectively had 13,665 annual reviews that were more than a year overdue – and 3,427 annual reviews that were over two years overdue. That’s from just over a third of all LAs – and these are the ones that are on top of their data and can track their caseload. Things are likely to be worse in the other LAs who can’t…
At this point, it’s worth remembering that when we asked these questions, we only asked how many ARs had been completed at all that year – not how many were completed within the four-week statutory timescale.
A few LAs offered this extra information up: one of the LAs that completed 100% of its EHCP Annual Reviews in 2018 finished fewer than half of them within the 4-week timescale. Another had completed fewer than one in 300 annual reviews within 4 weeks.
It’s also slightly worrying that five years into the SEND reforms, a few LAs seem to be a bit hazy about how Annual Reviews are supposed to work. Judging from some of the responses, a small number of LAs don’t seem to be aware that telling families what’s they’ve decided to do is an integral – and statutory - part of the annual review process.
And we’ll be checking the responses we received from a couple of LAs particularly carefully – as the high completion rates and minimal backlog they claimed simply don’t stack up with what local parents are telling us.
Why does the Annual Review matter?
Things appear to be going badly wrong here. It’s not going badly wrong everywhere, but there are large parts of the country where the EHCP annual review process clearly isn’t working as it should.
There are some families who won’t be badly affected by this. If you’ve got a rock-solid EHCP, if your child’s needs are well understood and aren’t changing, and if you’ve got great provision in place, then the impact of delayed or non-existent Annual Reviews won’t be too bad.
But the trouble is, there just aren’t enough SEND families in this category. If your child or young person has a shonky EHCP, if they have needs that are rapidly changing, or provision that isn’t up to the job anymore, then the chances are high that they’ll need their EHCP updated without delay.
One of the reasons that this is important is that many EHCPs are already not fit for purpose. A couple of years ago, SNJ raised concerns about the shoddy way in which statements of special educational need were being transferred over into EHCPs.
These concerns were substantiated by evidence given to the Education Select Committee’s SEND inquiry – not just by education practitioners, but by local authorities themselves.
Some LAs told the inquiry that they’d chosen to put their resources into transferring statements over to EHCPs as quickly as possible – quantity over quality, with the idea being that they’d sort out the quality problems at the next annual review. One LA told the SEND inquiry that, “a significant number of plans will need near-full rewrites at the time of the first annual review.”
These problems are widespread. Given the problems with the annual review process, can anyone be confident that things are being sorted out now?
A few local authorities were upfront about the problems they were facing with annual reviews. Some said that they were finding it so hard coping with the volume of new EHCPs, they’d decided to prioritise new plans at the expense of the annual reviews of older plans. Some LAs outlined plans they had to work their way through their annual review backlog.
Right to appeal in limbo
There’s another, more principled problem with the breakdown of the EHCP annual review process. If an annual review isn’t being completed – or is being completed with significant delays – it leaves the family in legal limbo.
The decision that LAs make about whether to maintain, amend or cease the EHCP is the key part of the annual review process. The statutory process gives families the right to appeal the LA’s decision – but families can only exercise this right once the LA sends out a letter notifying them of their decision, and their right to appeal it.
No letter means no legal right of appeal. And at a bare minimum, tens of thousands of families did not get this legal right through a completed annual review last year. Given how little many LAs seem to know about their annual review processes, the real number of families who did not get this right is likely to be in the low hundreds of thousands.
That’s an unacceptable state of affairs.
And more broadly, if EHCP annual reviews aren’t being completed on a large scale, then it also distorts our understanding in other areas – in particular, SENDIST Tribunal appeal rates.
The truth behind the Annual Review stats
Ministry of Justice statistics tell us that last year, only 1.6% of appealable local authority decisions resulted in families appealing to SENDIST. Sounds like a small proportion, right? But the 1.6% figure is wrong, through no fault of the statisticians.
The MoJ statisticians calculate the SENDIST appeal rate by looking at how many times families could have appealed LA decisions. They’ve assumed that the SEND system is working as it should – but it’s not.
The vast majority of these theoretically-appealable decisions – around 80% of them – are the ones that LAs are supposed to make at EHCP annual review time. But if local authorities aren’t completing annual reviews, then families don’t have any chance to appeal at all.
And because of this, the SENDIST appeal rate looks much lower than it actually is. In the worst-performing LA, the difference is stark. Strip out the appeals that couldn’t happen because the annual reviews didn’t happen, and the SENDIST appeal rate soars to 18.5% - nearly one appeal for every five genuinely appealable decisions taken.
What should I do?
The impact of failings in the EHCP annual review process isn’t even. It might well be that delays to the annual review of your child or young person’s EHCP don’t matter too much, if their needs are being met well and provision is stable.
If you’re in this position, it’s still important to pay close attention to the annual review process if your child or young person is about to transition to a new phase of education, or if you expect that their special educational needs are changing.
But for many of us – both parents and professionals – a lot hangs on getting the EHCP annual review done well, and completed on time.
If you’ve been waiting longer than four weeks for the LA to notify you of its annual review decision, then check with your LA SEN team case officer in the first instance.
If you get no joy through that route, then the ever-dependable IPSEA have a model letter that you can send to your LA’s Director of Children’s Services to speed things up.
If the IPSEA model letter doesn’t shift things, then consider other options. The council’s complaint process or a letter to the council’s Monitoring Officer are avenues that can be worth pursuing. Ultimately, judicial review can be a remedy with problems like these, but be sure to take expert legal advice if you’re considering this route.
We’d also recommend notifying Ofsted if it’s taking a long time to get an annual review decision out of the LA. Ofsted won’t resolve your individual situation, but notifying them that there are problems with the annual review process will help them to inspect the local area’s SEND services more effectively. Likewise, if you’ve had a particularly good experience of annual reviews, that’s worth Ofsted knowing about too.
Right now though, the EHCP annual review process looks like a neglected area of SEND reform implementation. The Department for Education is coming close to completing its in-house SEND review. Annual reviews are an area that they need to bear down on - urgently. A system that’s supposedly “bedding in” shouldn’t be behaving like this.
- Are EHCP Annual Reviews being unlawfully delayed by too-busy LAs?
- Updated EHCP Flow charts and a brand new one for the Annual Review!
- EHCPs in 2018: Are we 'bedded in' yet?
- Explaining the Annual Review for a child with an Education, Health and Care Plan
- Ask IPSEA: How Soon After The Annual Review Meeting Should We Receive A Response From The LA?
- SEND Inquiry Report: Education committee blasts DfE, LAs and Ofsted over multiple SEND failures
- SEND Inquiry report Part 2: No more reviews, it’s time to ACT