Are EHCP Annual Reviews being unlawfully delayed by too-busy LAs?

Clocks in background with words: Are EHCP Annual Reviews being unlawfully delayed too-busy LAs

When my sons had their first annual review after their Education, Health and Care Plan (EHCP), it happened roughly on time. However, we never received the report after the review. Seven months later, they both graduated college. The note to cease the EHCP though, appeared bang on time.

This example of an LA’s “priorities” is apparently not an unusual occurrence, according to the parent author of today’s post. It’s from the same person who wrote for us about their experience with an Ombudsman complaint. They’ve now discovered there is an issue in a number of local authorities with Annual Reviews for EHCPs being delayed - illegally- because of other priorities within their workload. Read about it below. If you need information about the Annual Review, check out our Flow Chart here

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Are hard-pressed LAs operating a ‘triage’ system for EHCP annual reviews? By a concerned parent

In medical terms, triage is the process of determining the priority of patients' treatments based on the severity of their condition. In SEN terms it may mean an LA SEN department prioritises its workload according to local policies. Now this sounds quite reasonable except there are legal requirements set out in the Special Educational Needs and Disability Regulations 2014, and there is also statutory guidance for local authorities, schools and colleges in the SEN and Disability Code of Practice

Pressure on LA SEN services

Headlines are stark. A BBC report in Jan 2019 said “Families are waiting too long for special needs support in England” Nadhim Zahawi, Minister for Children and Families, said (Jan 2019): "Our ambition for children with special educational needs and disabilities is exactly the same for every other child. We are pleased to see that local authorities are improving the speed at which they are assessing SEND children. Where a local authority is performing significantly below the national average, we have been working with them through our specialist team of SEN advisers to improve performance."

However, LAs are not required to report on annual reviews. There are no embarrassing statistics. Coupled with the intense spotlight on EHC assessments, it is hardly surprising that annual reviews may have been downgraded in priority in some LAs.

A quick trawl through the past year of decisions in the Local Government and Social Care Ombudsman (LG&SCO) website throws up five upheld complaints concerning annual reviews. There may be more in the pipeline.

SEND local area inspections are also picking up on issues with the annual review process. For example:

Devon (Jan 2019): "The local area’s response to managing the annual review process is not effective. Plans are typically not updated or amended. Consequently, the EHC plan is frequently out of date and does not accurately describe the child or young person’s needs, provision and outcomes"

Hammersmith and Fulham (Jan 2019): "Leaders are aware that annual reviews of EHC plans vary in rigour. However, they are prioritising children and young people who are moving from one setting to another when attempting to improve consistency."

Leaders have not been successful in establishing strong practice when co-producing children and young people’s plans. In particular, there were weaknesses in co-production during the statutory assessment and annual review processes, including when statements of special educational needs were converted to EHC plans.

OFsted/CQC Local area SEND inspections: one year on October 2017

What do parents think?

Parents are unhappy with how their LA is handing their child’s annual review. These are just some of the examples from affected parents.

SNJ has previously covered annual reviews, and I won’t go into them here – see ‘Explaining the Annual Review for a child with an Education, Health and Care Plan’ Meanwhile, IPSEA has useful information on annual reviews, and how to complain when things don’t go right!

The LG&SCO said (Dec 2018) that councils mustn’t throw out the rulebook in the face of pressure.  And yet, in April 2019, Hampshire County Council said, “In January 2019 the data for the previous calendar year was looked at. There were 8380 Annual Reviews held for Hampshire pupils. Of these 52% were completed on time. The average number of Annual Reviews to be processed across the service was 698. There are peaks in January, June and August. The processing of Annual Reviews had been delayed due to pressure on the service following an increase in new requests for assessment in 2018”.

The audit was carried out as part of the recommendations from an upheld complaint (to be published on LG&SCO site) on failures around the EHCP annual review process. An SEN officer had considered a two-year delay to an annual review of a YP’s EHCP justified as “other things took priority”. 

Has your LA thrown out the rulebook in the face of pressure? Hampshire County Council has. Hammersmith and Fulham (SEND local area inspection report Jan 2019) has. How many others have?

Comment here with your experiences so the post author can see them.

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Tania Tirraoro

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