Late EHCP drafts and extensions timescales for amendments

I was told I'd been sent a draft EHCP at the end of July which I'd not received. On 8 August, the day before we went abroad, I emailed asking for another copy and verified my address.

I did not receive a draft until 30 August. I'd already said that I'd like an extension on responding giving me two weeks from the schools returning so I could consult, but I've received this response:

"I can agree a further extension to 16th September but must make you aware that to do so would not be compliant with the Code of Practice; the summer holiday is not an exception to statutory timescales unless we are seeking specific advice from the school, e.g. awaiting a response to a consultation. If this is acceptable to you, I will await your response on or before 16th Sept. "

I can find nothing about asking for an extension not being compliant with the Code of Practice. Are you aware of anything? I feel it's only fair to be able to discuss the draft with my son's current school and transition options for next year - two weeks is such little time anyway.

Helen answers

I think that the problem here is that the local authority has used up all the time in the statutory timescales for issuing a final EHCP by not getting the draft EHCP to you when they should have done.

When they talk about extending your time to comment not being compliant with the CoP, they are thinking about the legislation that allows for the timescales to slip in limited areas over the summer holidays e.g. getting reports from professionals, as so many of the relevant professionals may be term-time only or taking holidays. It is true that there is no provision in the legislation or CoP for this for parents' comments, unless there are exceptional personal circumstances affecting you or your child (and sadly, I don't think that non arrival of a draft EHCP fits this) or you are away for a continuous period of over 4 weeks.

However, as you did not receive the draft EHCP until 30 August, by insisting on sticking to the statutory timescales, the authority is certainly moving against the spirit of the CoP as you now only have limited time to comment, through no fault of your own. If the authority had pulled their finger out and resent the draft EHCP on 8 August, things would be different, but as it took them 3 weeks to do so, I think it's worth putting pressure on them to recognise that this difficulty is due to the authority not taking corrective action (resending the draft) quickly. I'd suggest contacting them emphasising this and saying that you will accept a slight overrun on the statutory timescale in order to allow you time to comment properly. They will be keen to hit the timescales, but there is no actual penalty to a local authority if they don't, whereas in this situation there could be a penalty to you and your child if the EHCP is finalised and it is not right.

If the authority will not agree to this, I would ask them for a meeting to discuss the draft EHCP. The CoP says that the authority must meet with you to discuss the EHCP if you ask, and you can then press the point that you don't have sufficient time to think about the EHCP and hopefully deal with any concerns or questions you may have, or come up with an agreed approach to move forward. For example, the authority could issue the final EHCP by the deadline, but agree to reissue with further tweaks once you have been able to get your thoughts in order.

I hope this helps