Independent Panel for Special Education Advice (IPSEA)	Defending children's right to special education provision
Difficulties at phase transfer May 2002 Back to home page	The lack of a deadline this year (2002) for LEAs to amend statements at phase transfer has caused IPSEA (and other organisations) to receive desperate calls for help and advice from parents of children with statements whose LEAs are refusing to make decisions and/or advise parents of decisions with regard to children¹s placements from September 2002 on. IPSEA drew the Government's attention to the following points: Regulation 19 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 introduced the deadline of February 15th for LEAs to amend statements when children were due to transfer schools in the September of that year. Regulation 28(12) of the same regulations delayed implementation of Regulation 19 until 15th February 2003. It is clear, then, that the mandatory duty to amend statements at phase transfer does not exist this year (i.e. in relation to phase transfers due to take place in September 2002). The SEN Code of Practice in paragraph 5:72 contains the following guidance: "Thus, for all children transferring between phases, except from early years settings, a provisional recommendation should be made in the year previous to transfer so that parents can consider options at the same time as other parents. The child¹s statement must then be amended by 15 February of the year of transfer ...." (CoP, 5:72; emphasis in Code) There is no reference in this section of the Code to Regulation 19, therefore the status of para. 5:72 is clearly guidance under the Code, to which all 'must have regard.' Also, there is no passage or section in the Code which defers the implementation of paragraph 5:72 till 2003. Under paragraph 2 of the Foreword: 'This Code of Practice is effective from 1 January 2002.' This includes paragraph 5:72 of the Code. IPSEA has spoken to an official from the Department who shares the above account of the status of the guidance in paragraph 5:72 and LEAs' duty therefore to have regard to it as from January 1st this year. However, a differing account is given in letters we have seen from other members of the Department: "... the requirement(s) in the Code of Practice for statements to be issued by 15 February does not actually come into force until 2003." (DfES ref: 2002/0019872TO) "... the new Code of Practice for Special Educational Needs, which is effective from January 2002, state that LEAs must ensure that statements are amended by 15 February. This however will only be applicable from 15 February 2003." (DfES ref: 2002/0021356). In a letter written to a parent by an officer of LB Barnet the Department¹s view is cited as follows: "I am aware of the recommended action in the Special Educational Needs Code of Practice that Local Authorities finalise the statements of pupils due to transfer to secondary schools by 15th February of the year of transfer. I am informed by the Department for Education and Skills that this does not apply to 2002." (ref: rc/dr/6659/674/burch). As a result of this situation, parents of statemented children due to transfer schools in September 2002 are actually in a worse position this year than they would have been under the previous Code of Practice, which gave the first day of the term before transfer as the deadline for LEA decisions being made (1994 CoP para 6:30). The effect of DfES letters/guidance is that there is no deadline for amending statements of children transferring schools this year. This is a nightmare scenario for an increasing number of parents calling our advice lines. It is not just the uncertainty about the school their child will attend, it is the resultant withholding of the right to appeal to the SENT and the delay on the next school's receiving information and being able to make appropriate arrangements for a child in time for September. It is now beyond both the old and the new Codes' deadlines. Neither is effective in pressing LEAs to make their decisions and amend statements. It is essential that the Department send a (short) circular letter to LEAs giving guidance on the date by which they should now be aiming to amend statements. Can we suggest that this is no later than May 1st?

Independent Panel for Special Education Advice (IPSEA)

Defending children's right to special education provision

Difficulties at phase transfer

May 2002

The lack of a deadline this year (2002) for LEAs to amend statements at phase transfer has caused IPSEA (and other organisations) to receive desperate calls for help and advice from parents of children with statements whose LEAs are refusing to make decisions and/or advise parents of decisions with regard to children¹s placements from September 2002 on. IPSEA drew the Government's attention to the following points:

Regulation 19 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 introduced the deadline of February 15th for LEAs to amend statements when children were due to transfer schools in the September of that year.
Regulation 28(12) of the same regulations delayed implementation of Regulation 19 until 15th February 2003.
It is clear, then, that the mandatory duty to amend statements at phase transfer does not exist this year (i.e. in relation to phase transfers due to take place in September 2002).
The SEN Code of Practice in paragraph 5:72 contains the following guidance:
"Thus, for all children transferring between phases, except from early years settings, a provisional recommendation should be made in the year previous to transfer so that parents can consider options at the same time as other parents. The child¹s statement must then be amended by 15 February of the year of transfer ...." (CoP, 5:72; emphasis in Code)
There is no reference in this section of the Code to Regulation 19, therefore the status of para. 5:72 is clearly guidance under the Code, to which all 'must have regard.'
Also, there is no passage or section in the Code which defers the implementation of paragraph 5:72 till 2003. Under paragraph 2 of the Foreword: 'This Code of Practice is effective from 1 January 2002.' This includes paragraph 5:72 of the Code.
IPSEA has spoken to an official from the Department who shares the above account of the status of the guidance in paragraph 5:72 and LEAs' duty therefore to have regard to it as from January 1st this year. However, a differing account is given in letters we have seen from other members of the Department:
"... the requirement(s) in the Code of Practice for statements to be issued by 15 February does not actually come into force until 2003." (DfES ref: 2002/0019872TO)
"... the new Code of Practice for Special Educational Needs, which is effective from January 2002, state that LEAs must ensure that statements are amended by 15 February. This however will only be applicable from 15 February 2003." (DfES ref: 2002/0021356).
In a letter written to a parent by an officer of LB Barnet the Department¹s view is cited as follows:
"I am aware of the recommended action in the Special Educational Needs Code of Practice that Local Authorities finalise the statements of pupils due to transfer to secondary schools by 15th February of the year of transfer. I am informed by the Department for Education and Skills that this does not apply to 2002." (ref: rc/dr/6659/674/burch).
As a result of this situation, parents of statemented children due to transfer schools in September 2002 are actually in a worse position this year than they would have been under the previous Code of Practice, which gave the first day of the term before transfer as the deadline for LEA decisions being made (1994 CoP para 6:30).
The effect of DfES letters/guidance is that there is no deadline for amending statements of children transferring schools this year. This is a nightmare scenario for an increasing number of parents calling our advice lines. It is not just the uncertainty about the school their child will attend, it is the resultant withholding of the right to appeal to the SENT and the delay on the next school's receiving information and being able to make appropriate arrangements for a child in time for September.
It is now beyond both the old and the new Codes' deadlines. Neither is effective in pressing LEAs to make their decisions and amend statements. It is essential that the Department send a (short) circular letter to LEAs giving guidance on the date by which they should now be aiming to amend statements. Can we suggest that this is no later than May 1st?