At IPSEA, we are dedicated to upholding the rights of children and young people with special educational needs and/or disabilities (SEND). Our experienced policy team works to challenge policy at a local level to ensure local authorities’ policies comply with the law.  

By monitoring trends and analysing evidence obtained from our free advice and support services for parents and carers, we identify instances where local authority (LA) policies breach the law. We actively engage with LAs to challenge these, applying our in-depth knowledge of the legal framework to educate and influence their policies and practice. We can’t always publicise this work, but here are some examples of successful interventions.

Annual review

The annual review process

An annual review of an EHC plan is a legal process which is set out in The Special Educational Needs and Disability Regulations 2014 (at Regulation 20 for those who attend a school and Regulation 21 for those who do not). An annual review is not simply a meeting - LAs are required by law to follow this process and meet certain deadlines. You can find out more about the process and deadlines in our annual review checklist. There are additional deadlines for an LA to meet when reviewing an EHC plan for a child or young person who is due to transition to a new phase of education (commonly known as a “phase transfer review”)

We discovered that an LA was providing a lot of misleading information on its website about annual reviews, including:

• incorrect information about the timing of phase transfer reviews
• information which implied the annual review is simply a meeting
• vital information about the steps which must be taken before and after the meeting either being provided in a misleading way or omitted altogether
• incorrect information on the legal process for amending an EHC plan following annual review

The LA corrected most of the issues we identified on receipt of our first letter, then following further liaison corrected all outstanding issues. This work has led to parents of children with SEN, and young people with SEN, in that LA area being provided with accurate and much higher quality information.

Changing an EHC plan after an annual review 

When a local authority decides to amend an education, health and care (EHC) plan at the end of an annual review, the law says the LA must inform the parent or young person of its decision and the details of how it intends to change the EHC plan within four weeks of the annual review meeting (and within a year of the EHC plan being issued or the previous annual review). In March 2022, a case confirmed this is a legal requirement. A parent told us their LA had sent them a letter saying it had decided to change the EHC plan but didn’t include details of how. This approach unlawfully delays the EHC plan being changed and the parent or young person’s right to mediation and/or appeal if they disagree with what the final amended EHC plan says. The parent complained to the LA referring to the case and the LA said parliament needed to change the law for it to have effect – this isn’t true. We told the LA it was wrong, it acknowledged we were right and confirmed it would make all staff aware of the correct position. For more information on what the law says about annual reviews and changing EHC plans, see our annual review checklist.

Education, health and care (EHC) needs assessments

Unlawful criteria

For children or young people with special educational needs (SEN) to access support through an EHC plan, they must first undergo an EHC needs assessment. One LA published a “toolkit” which included various requirements it said had to be met when asking for an EHC needs assessment. For example, it said schools had to provide evidence of educational psychologist involvement and at least two terms of SEN support. These are not legal requirements. It also said that evidence had to show that a child or young person’s SEN cannot be met by the school or other educational setting, when the law says LAs do not have to be certain of this when deciding whether to assess and must carry out an EHC needs assessment when this may be the case. After an exchange of letters with us, the LA corrected its “toolkit” to reflect the law. For more information, see our EHC needs assessment webpages.

Misleading information on requesting an EHC needs assessment

The law says parents, young people and education settings can make a request to their LA for an EHC needs assessment. The law does not say the request must be made in a particular format or in a certain way, meaning you can choose. Despite this, parents often tell us they have been required to use their LA’s specific form, or that their request can only be made in a certain way, such as through their LA’s electronic portal or hub.

We discovered that an LA’s website implied the only way to make an EHC needs assessment request was through its hub. We wrote to the LA, pointing out not only that the law does not require this, but also our concerns about digital exclusion. Providing only one way to make an EHC needs assessment request runs the risk of children and young people being unable to access an assessment, and therefore the support they need; so it is vital that LAs do not put additional barriers in place which do not appear in the law. In response to our concerns, the LA changed the content of its website to make clear that using its hub is just one way an EHC needs assessment can be requested. A telephone number and email address has been provided for those who wish to make their request in a different way.

Another LA’s website implied that parents had to use a specific form to “apply for” an EHC needs assessment. This is wrong. LAs cannot require requests for EHC needs assessments to be made in a particular way – a request is valid in any form.

We wrote to the LA expressing concern that parents may think they have to complete the LA’s form to request an EHC needs assessment - which could prevent them from doing so - when they don’t. Following receipt of our letter, the LA corrected the information on its website.

It is important to know that parents and young people have a legal right to make a request for an EHC needs assessment. Despite this, we regularly see parents and young people being told they need to make an “application” for one. We wrote to one LA whose website information stated this, explaining that section 36(1) of the Children and Families Act 2014 provides the right for parents and young people to make and EHC needs assessment request and that as such, they do not need to make an “application”. The LA corrected its website information on receipt of our letter.

Young people

19 to 25 year olds and ceasing (stopping) EHC plans

A parent told us that their LA had said it would no longer fund special educational provision for 19-25 year olds with EHC plans unless they were taking exams or working towards employment (this would be unlawful, young people do not have to show they will get a job or qualifications to have an EHC plan or to stop their EHC plan being taken away).  We looked at what the LA’s website said about young people. It included errors and misleading information. For example, it said things like:

• all learners – including those with EHC plans should be able to complete their education by the time they are 18. This is wrong.

The law recognises that young people with EHC plans may need longer in education or training than those who do not. A young person can stay in education or training with the help of an EHC plan until they are 25 (and in some cases, until the end of the academic year in which they turn 25).

• when someone turns 18 their EHC plan should set out what ceasing (stopping) their EHC plan should look like. This is wrong.

The law does not say this. LAs should not assume because someone has reached 18 it’s time to work out how to stop their EHC plan. See our EHC plan checklist for information on what the law says must be included in EHC plans.

• learners with an EHC plan can access education between 19 and 25 if they have incomplete outcomes in their plan. This is wrong.

Even if all the outcomes in an EHC plan have been achieved, an LA still has to show that a young person’s EHC plan is “no longer necessary” if it wants to stop it.

When we wrote to the LA about this, it thanked us for raising the issues and corrected the information on its website.

Mental capacity

An LA’s preparing for adulthood guidance, said that a “Mental Capacity Act assessment” with a social worker was required to establish if a young person lacked capacity to make a decision for themselves. The guidance implied the only alternative would be for their parents or carers to apply to the Court of Protection to become a Deputy, in order to act on their behalf. We challenged this because it’s not what the law says.

• The Mental Capacity Act (MCA) 2005 and the Mental Capacity Act Code of Practice (MCA Code) are clear that parents can decide if their young person lacks mental capacity to make a particular decision.
• When a young person lacks capacity to make a decision under the Children and Families Act 2014 (which deals with special educational needs) the law says their parent can do this automatically, unless a different person has been officially appointed as their representative – which in most cases they won’t have been.
• “MCA assessment” is not a legal term and there is no legal requirement for a social worker (or any other professional) to assess mental capacity in every case.
• The MCA 2005 and the MCA Code are clear there is no blanket requirement for a representative of someone who lacks capacity to have lasting power of attorney or a deputyship appointment and that these are not appropriate for every situation. 

After an exchange of letters with us, the local authority changed its guidance which now references, and is in line with, the law and statutory guidance. For more information on this topic, please see our mental capacity and decision making webpage.

Naming a school or college in an EHC plan

Having an EHC plan in place, or in draft form, for your child or young person gives certain rights.

One of these is the legal right to request that a particular nursery, school or college is named in the EHC plan (or to express a preference for an independent school, college or other institution).

We discovered an LA was providing misleading information on its website about when a special school can be named in an EHC plan, namely that it must be the “most suitable” setting. We wrote to the LA, pointing out that if the requested setting is one of the types set out in section 38(3) of the Children and Families Act 2014, a parent or young person has the right to request it and the LA must name it in the final EHC plan unless one of the reasons set out at section 39(4) of the Children and Families Act 2014 applies. Whilst the law does require the requested setting to be suitable, it does not require it to be the “most” suitable. The LA corrected this information on receipt of our letter.

You can find out more about choosing a school or college with an EHC plan on our website.

Appealing to the SEND Tribunal 

You can appeal to the SEND Tribunal if you’re unhappy with a decision your LA has made in relation to an EHC needs assessment or an EHC plan.

It is important to know that:

• for most types of appeal, you need to consider mediation and get a mediation certificate before you can submit your appeal to the SEND Tribunal, and
• there are deadlines for bringing an appeal to the SEND Tribunal. We explain these in detail on our page containing general advice about appealing.

We wrote to an LA after discovering confusing information on its website concerning mediation and appealing to the SEND Tribunal, which risked parents and young people being unaware of their right to mediation and potentially missing their appeal deadline. The LA corrected most of the issues we identified on receipt of our first letter, then following further liaison corrected all outstanding issues.

These are just some of the ways we influence SEND policy and protect, promote and uphold the rights of children and young people with SEND. If you want to find out more about our policy work and how you can play a part in what we do, register for our regular email updates.  Sign up here