Phase Transfer deadline: what to do if your child’s EHCP isn’t finalised on time

Phase Transfer deadline:  what to do if your child's  EHCP isn't finalised on time

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 15 February.

This is the deadline for all children transferring from:

  1. relevant early years education to school;
  2. infant school to junior school;
  3. primary school to middle school;
  4. primary school to secondary school; or
  5. 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 by 23 November 2018 for children, and by the 4 January 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.

A final reminder also that as from 1 April 2018 all Statements of Special Educational Needs should no longer exist and all children/young persons should instead be in receipt of an Education, Health, and Care (EHC) Plan. If your child is still in receipt of a Statement (post 31 March 2018), which technically has no legal standing, a transfer review is a great opportunity to force the switch across to an EHC Plan

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.

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Hayley Mason

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