There has been no change to the way decisions and processes take place as a result of COVID-19. Local authorities (LAs) and schools will need to give themselves ample time (for example, to accommodate self-isolation issues or to ensure everyone can access non-face-to-face meetings) to complete processes within the statutory deadlines.

SEN Support and transfer

Maintained nurseries, schools, Academies and FE colleges have a duty to use their best endeavours to secure that the special educational provision required by a pupil/student’s special educational needs is made (s.66 Children & Families Act 2014, “CAFA 2014”). So, support should continue as the student moves through the different phases of their education and training.

However, parents, carers and young people may have concerns about the way this support is delivered and whether and how the student will be supported in the new environment. Check the setting’s website for information about the special educational provision they typically provide: the SEN Information Report which maintained schools, nurseries and Academies must produce is a good starting place.

Maintained schools, nurseries and Academies also must have a SENCO and FE colleges must have an equivalent member of staff. Ask them about what they can do to support the student, visit the setting and consider the environment and the support on offer. The important thing is to make sure you start these visits and questions as soon as you can.

It may be that the transfer to a new phase of education and/or training means that the special educational provision typically available might not meet the student’s special educational needs.

If this is the case, consider requesting an EHC needs assessment. Remember the decision whether or not to assess is set out in s.36(8) CAFA 2014: does the child/young person have or may they have special educational needs and might it be necessary for the special educational provision required by those needs to be secured under an EHC plan. If the child or young person did need an EHC plan then the entire process could take 20 weeks from the date the assessment is requested.

The Schools Admissions Code (September 2021) requires children with special educational needs to be treated fairly. Schools must not refuse to admit a child who has special educational needs on the basis they do not feel able to cater for these needs. Nor should they be expressing such views on an informal basis, for example during school visits or open days. If a school believes an EHC plan might be necessary to secure the special educational provision required then they can either support a parent’s or young person’s request for an EHC needs assessment or request this itself.

EHC plans and transfer between phases of education

Under the SEN and Disability Regulations 2014 (as amended)(the “SEN Regs”), LAs have to review EHC plans by certain deadlines where a child or young person is within 12 months of a transfer between phases of education (Reg 18). The three deadlines are:

• 31 March in the calendar year of the child or young person’s transfer from secondary school to a post-16 institution; and
• 15 February in the calendar year of the child’s transfer in any other case; and
• At least five months before a young person transfers from one post-16 institution to another post-16 institution.

Where necessary, the LA must amend the EHC plan so that it names the school, post-16 or other institution, or type of school or institution, which the child or young person will attend following that transfer and issue the final amended EHC plan by the statutory deadline.

Where the LA suggests amendments to an EHC plan they must follow the process set out in Reg 22 which includes giving parents, carers or young people at least 15 days to make representations about the content of the EHC plan (and proposed amendments) and to request that a particular school/institution is named in the amended Plan.

Details of the process for amending plans for phase transfer, that LAs must follow, are explained here. 

School admission and the EHC plan

Children and young people with EHC plans should NOT have their placements determined through the general schools’ admissions process – even where they are seeking a mainstream placement.

Very often parents, carers and young people are required to apply for placements for students with EHC plans through this process but this can mean that parents have to request placements outside of the statutory process or without the benefit of the annual review.

IPSEA advises parents, carers and young people to remember these key points:

1. The LA must review and amend the EHC plan by the statutory deadline – they cannot wait to determine placement by the schools’ admissions deadlines;
2. The review must take place when a child is within 12 months of a transfer between phases of education;
3. LAs must give parents, carers and young people the opportunity to request that a particular school be named in the EHC plan when they propose to amend it for phase transfer. Even if a different or no school/college was requested via the general admissions processes, the parent/carer or young person has a statutory right to make a request for a school of the type listed in s.38 CAFA 2014 at the point that the LA proposes to amend the EHC plan after the review;
4. If a parent/carer has requested that a school of the type listed in s.38 CAFA 2014 is named in the EHC plan the only reason the LA can refuse is if an exception under s.39(4) CAFA exists (and, if it is a mainstream school, if an exception in s.33 CAFA exists). The LA cannot refuse to name a school because the request doesn’t meet the schools’ admissions process criteria or because the schools’ admissions process has not yet been completed.
5. If the LA refuse to name the school you have requested and have failed to give a lawful reason for doing so, you can appeal to the SEND Tribunal once the EHC plan is finalised. The SEND Tribunal has the power to order that a particular school or other setting is named in an EHC plan.

Changing the special educational provision in the EHC plan

Moving to a new phase of education/training  may require changes to the way special educational provision is delivered or what is required. Special educational needs may have changed since the previous annual review or when the EHC plan was finalised. However, any change must be made on the basis of evidence of the individual child or young person’s requirements: not the typical model of provision for the placement or what is generally suitable for an age group.

An EHC plan should not be stripped of its specificity because a child or young person is moving to a new phase of their education.

For over 30 years now, the law in this area has been absolutely clear. The EHC plan must be:

“so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case.  Very often specification of hour per week will no doubt be necessary and there will be a need for that to be done.” L v Clarke & Somerset CC [1998] ELR 129

The LA must give parents, carers and young people at least 15 days to make representations about any proposed amendments.

Final points

• Whatever the stage of education/training (up to Higher Education level), the special educational provision secured for a child or young person must be what is required by their special educational needs.
• Transferring to a new or different phase of education may prompt changes but never a restriction on receiving the special educational provision required.
• Changes to provision must be supported by evidence of changes in the individual child or young person’s need.
• EHC plans must be reviewed and amended in accordance with the statutory process and meet the statutory deadlines: failure to do so is a breach of statutory duty. Parents, carers and young people must be involved in the process and the LA must have regard to their views, wishes and feelings and what will secure the best possible educational and other outcomes for that child or young person (s.19 CAFA 2014).
• EHC plans must be specific and this means, in all but the most exceptional cases, quantified.
• If parents, carers or young people request that a school of the following type is named in an EHC plan then the LA has a conditional duty to name that school unless an exception under s.39(4) or s.33 CAFA 2014 applies: maintained school; Academy; non-maintained special school; school registered under s.41 CAFA 2014; an institution in the FE sector in England.
• If in doubt about the process seek advice: your school SENCO, your local Information, Advice and Support Service (IASS) and IPSEA’s helplines can provide information.

Updated October 2021