Parent asks:
Are the LA allowed to make changes to the EHCP from that which was ordered by the Tribunal? What should we do if they do not reinstate the EHCP to that which was made by the First Tier Tribunal?
IPSEA answers:
It is not entirely clear from your question whether the local authority has issued an EHC Plan which does not fully comply with the First-tier Tribunal’s decision or whether, having complied with the decision, it has, at a later date, issued another amended Plan.
If immediately following a Tribunal, the local authority has issued an EHC Plan that does not fully comply with the decision of the Tribunal, then the local authority is likely to be in breach of Regulation 44 of the Special Educational Needs and Disability Regulations 2014 which deals with compliance with Tribunal orders.
Without knowing the exact nature of your appeal to the Tribunal it is not possible to say exactly which timescale applies, but the regulations are clear that a Tribunal order must be complied with.
You should write to the Director of Children’s Services complaining that the local authority is in breach of its duty to comply with the Tribunal order.
If this fails you may have to apply to the Secretary of State for Education to enforce compliance. The complaint would be about the local authority acting unlawfully (being in breach of Regulation 44) and made under section 497 of the Education Act 1996. The Secretary of State has powers to direct local authorities to take action to remedy any unlawful act. Complaints can be made online: https://www.education.gov.uk/schools/leadership/schoolperformance/schoolcomplaints-form
It may, alternatively, be necessary to make an application to the High Court for judicial review in order to ensure compliance. The time limit for applying for judicial review is as soon as possible but in any event within three months. It is usually necessary to show that everything possible has been tried to resolve the problem before resorting to court action.
You can also make a complaint to the Local Government Ombudsman (LGO). For details of the procedure see: http://www.lgo.org.uk/making-a-complaint/ There is also a helpline number to call: 0300 061 0614.
If on the other hand, the local authority complied with the Tribunal order by issuing an amended Plan in the form that it ordered, but has subsequently amended the Plan, it may not be acting unlawfully. The local authority is entitled to amend an EHC Plan at any time as long as it follows the process set out in the Special Educational Needs and Disability Regulations 2014. This involves, among other things, sending you a copy of the EHC Plan together with a notice specifying the proposed amendments, giving you at least 15 days to make representations about the content of the draft Plan and the opportunity to request a meeting with an officer of the local authority.
If the local authority has issued an amended Plan and you are unhappy with the content you will have a fresh right of appeal to the First-tier Tribunal.
