Our annual review was an EHCP transfer and no one told us!

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Parent's Question

I am in the middle of a time bomb not sure how I got here but dealing with it the best we can.

My son is 12 and like everyone else a long battle to get a statement, four attempts, home schooled at 8 years old until we won a statement as he became ill with no support/understanding. We are still battling for diagnoses but we know he has ASD/hypermobility syndrome/dyspraxia and other issues.

We moved to a new county and wrongly thought the statement was portable and laws surrounding this would be followed, wrong. After a nightmare six months out of school as no school place here and every attempt not to follow laws to ensure we had tutoring at home, timescales for decision for a school our MP got involved as we were going round in circles.

My son has been in a specialist academy (a learning curve how different they are) since last Sept, settled, happy, thriving then another nightmare began.

Annual statement review was started in February this year, confirmed by school and LA so we went to the meeting. The LA did not turn up or a representative so we filled out annual statement review paperwork, sent our reports off, teacher was happy, no issues , reports we have sent with it and head teacher signed off all agreed his on the tight school.

I felt sick as what came in the post was an EHCP, no one had told us this was a transfer meeting and we had asked. We have complained as its so poorly written, none of our reports used and apparently my son has a diagnoses of DCD! I am so angry and the school head of phase 3 phoned after I complained to the teacher asking what my problem was he is in the school until he is 19! As they are changing, teachers leaving we don't know that and another parent I was friendly said I am making a fuss over nothing.

The school said not their problem so are academies above the law? Should we just let them do what they like as a phone call says he is there until he is 19? It beggars belief we were put in a 18 week procedure we had no warning about and given 12 days to respond and the LA letter states it has been converted by them...in a council office and we are not the only parent going through this but no one we spoke to has challenged it.

I am starting to feel negative vibes from the school as they are picking up failing primary schools at a rate of knots and another specialist school in another area as well as a teaching school. I am shocked at their conduct and frightened if I don't back down or roll over my son is going to feel the outcome.

The policies on the school website are out of date and one teacher told a parent she didn't know what a EHCP as new to the school. So are they exempt from the new laws as they we a charity trust?

We are fighting this as I won't accept a statement with what they have written as the lea have backed down from the EHCP as it does not reflect my son. They say a mistake has happened but surely the lea who issue statements should not be making mistakes like this and we know we are not the only ones.

I am going for a second opinion with a ASD expert by asking clinical commissioning group for funding in NHS but not hopeful as we can't afford NAS fees. I really don't understand the school as they say it's nothing to do with them but they lit the touch paper and we are still not get ot or physio as per statement.

Thank you

Helen Gifford replies

Helen answers:

Thank you for contacting SNJ's Transfer Clinic.

I just want to start by confirming what you know - this is not what is supposed to happen with an EHCP transfer.

A transfer review must be started by the local authority, it cannot be started by the school. What you have described, although common, is not on, and in fact unlawful. The local authority must tell you as parent and the school of the date when they intend to start the transfer process to an EHCP, and they must do this at least two weeks before they start. They cannot just decide that a standard statement annual review has become a transfer to EHCP process as they appear to have done in your case.

Once the transfer to an EHCP has started, the local authority then must carry out an EHC assessment as part of that transfer process. This is very similar to the assessment that was carried out before your son's first statement was written, and again the local authority must ask for advice from you (parent), school, health, an educational psychologist and social care. As you can see, this is a process that cannot happen without parents' involvement - there is no way that a parent can be ambushed by the unexpected arrival of an EHCP as you have been within the law.

Technically, problems with the EHC transfer process are the local authority's responsibility, not the school's, but I am very surprised to hear that the school did not want to support you.

Ultimately, it is the local authority's responsibility to ensure that all the provision in your son's statement or EHCP is arranged. That's where the legal responsibility rests, although it is up to the school to actually do most of the doing. So, you need to raise the issue of not getting physiotherapy and occupational therapy with the local authority. They may be expecting the school to make this happen, but as it is not, the local authority cannot wash their hands of it, and need to make it happen.

There is an issue with the two sets of legislation (statements and EHCPs) that are running currently. Academies did not exist when the Statementing legislation was passed and so they are not included in it, although schools that have become academies in the last approximately six years have had clauses put into their funding agreements requiring them to follow the statementing legislation, so they are obliged to do so. All state funded schools including academies, and some independent schools, are included in the EHCP legislation and so must follow it.

You are doing the right thing in resisting the transfer to an EHCP until the right information is available. If you have not done so, don't forget that advice and support for you can be got from your local Information, Advice and Support Service.

And good luck!