The transfer deadline day for all settings except post-16, is fast approaching! If your child is transferring between phases of education, then the statutory deadline by when your local authority should have reviewed, amended (if necessary) and finalised the EHC Plan so that it names the placement your child will be attending in September, is 15th February every year.
This is the deadline for all children transferring from:
- relevant early years education to school;
- infant school to junior school;
- primary school to middle school;
- primary school to secondary school; or
- middle school to secondary school;
For other young people transferring from secondary school to a post-16 placement, the deadline is 31 March, but you should still be acting now if your young person’s EHCP hasn’t yet been updated.
After the review, the local authority have four weeks to make a decision, and then a further eight weeks to finalise the EHC Plan from the date that they provide you with the draft amended EHC Plan. Therefore, in order to guarantee that these statutory deadlines are met, the review should have happened well before the end of the autumn term for statutory school-age children, and by the first week of the January term for young people moving on to post-16 placements.
What if my local authority isn’t following the timescales?’
If your local authority has not commenced a ‘transfer review’ yet, you must force it to complete the review as a matter of urgency. The statutory deadlines of 15 February and 31 March are there so that children and young people will have certainty about the placement they will be attending in the September, following phase-transfer.
So, if your local authority still hasn’t written to you informing you that they will be commencing the transfer process, then unless they are going to finalise the EHCP by the deadlines, they are acting unlawfully. Or, perhaps your LA has written to you informing you that they are going to be finalising the EHC Plan but not until after 15th February/31st March, between phases of education. If so, they are STILL acting unlawfully.
So what can I do then?
If your local authority is acting unlawfully and ignoring these deadlines (and I have encountered many examples of this) a very simple ‘pre-action protocol’ letter can force your it to comply with the legal timeframes. A ‘pre-action protocol’ letter is not a product of education law, but a mechanism of Judicial Review and can lead to proceedings in the Administrative Court. You cannot write this letter yourself because the LA will not pay any attention to it. You may have been asking them where your child will be going for weeks, maybe months, so why would one letter change that?
The letter should be sent out from a solicitor on their letterhead and addressed to the Head of Legal Services for your LA and to the case officer. A case officer alone often does not have the power to force these things through. You will need to use a solicitor who is a specialist in the area of special educational needs and disability.
While using a solicitor is not for everybody, one simple letter that can force your LA to comply with the required timescales and ensure your child/young person has somewhere to transition to for September is certainly something to consider, even if you do not use them any further.
What if I don’t agree with the amended EHCP?
If, when you receive the final amended EHCP following your review meeting, and you do not agree with the school named by the local authority as being able to meet your child’s needs, then you need to ensure you have enough time to appeal to the SEND Tribunal before September, otherwise you risk your child being without a placement. This is why these deadlines are so important. The Tribunal will get very busy as appeals are registered. You should also note that the Tribunal does not sit in August, so all appeals need to be heard and concluded by the end of July.
Don’t get stuck in the log jam of parents appealing between 15 February and the end of July. There are too many cases and not enough judges so don’t delay in enforcing your right of appeal.
- Tania’s note: IPSEA has a model letter to complain to your LA about failure to meet the transfer deadline you can download and adapt. You can find it here
- You should be able to ask for urgent help from your local IAS service. Find yours here
- If you qualify for legal aid, this can cover the cost of a solicitor preparing the pre-action protocol letter. You can find out about legal aid here, and apply for legal aid here. (source: IPSEA)
- Check out our Annual Review flow chart here
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Also read:
- Beyond EHCPs: Why Inclusion Needs More Than a Document
- The Unacceptable Truth: 20 SEND legal rights at risk from the Government’s SEND reforms
- How health and family support systems are failing children starting school
- WEBINAR RECORDING! The implications for children’s legal rights to EHCPs and EOTAS of the Government’s SEND proposals
- When things go right: Shining a light on SEND Practitioners making a positive impact [Giveaway!]
- From suspicion to support: why the Government’s child protection reforms matter for disabled children
- Have your say on the future of transport for disabled children and young people
- Unison voices major concerns over SEND reform health plans for sick and disabled children out of school in the EOTAS consultation
- Top Tips for the EOTAS & EHCP consultation: Protect your child’s rights to statutory SEND support
- Navigating constraints: Why a former PCF chair thinks the current model is missing the mark for families
- Dear Secretary of State for Education, Lucy Powell: an Open Letter from Special Needs Jungle and SEND legal charity SOS!SEN
- Research: Disabled young people define inclusive education as “learning in the place that’s right for them”
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She is the author of a chapter on Deputyship Orders in the Court of Protectionin ‘Special Educational Needs and Legal Entitlement, getting out of the maze 2nd edition’.
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