We moved home two months ago. After we moved we got a letter from the new LA telling us that they had received a copy of our son’s EHC plan from the old authority and that they would be reviewing it in three months’ time. What should happen? Expand The letter also said that the local authority had no plans to reassess him. Before we moved, he was getting four hours of specialist teaching and one hour of speech and language therapy in a special school each week. Since we moved he has been getting nothing, despite the fact that we have spoken to the local authority on a number of occasions. Do we have to wait for the review before anything happens? As described in the section about moving to a new LA, the new local authority (LA) has a duty to make sure the special educational provision specified in Section F of his EHC plan is made. The fact that the LA has decided to review the EHC plan in 3 months’ time is irrelevant; it should be making the special education provision now. If it is no longer possible for your son to attend the school named in Section I of his EHC plan (perhaps because you have moved quite far away) then the LA must arrange for him to attend another appropriate school until it reviews and amends his EHC plan. If an appropriate school place cannot be arranged straight away. the LA must provide suitable alternative full-time education for him in the meantime. You should take action by writing immediately to the LA. You should adapt our template letter to include the information about your move. If your son is without a school place, it may be easier to adapt this template letter (titled 22c) to bring to the LA’s attention that it must find a school (or provide alternative education) for him until the EHC plan has been reviewed and amended.
Our daughter’s anxiety builds up to the point that she cannot go to school. She has an EHC plan but it doesn’t contain any information about her mental health needs as these have only arisen recently. What should we do? Expand The school is saying there is nothing it can do as this is a health need and it is nothing to do with the school. This week we have received a letter from the local authority threatening us with an Attendance Order and court if we don’t return our daughter to school. We are worried about being prosecuted and fear our daughter will never be able to go back to school. When a child is unable to attend school and their behaviour and/or anxiety appears to be worsening, it is important to seek help as soon as possible. There are a number of different issues to deal with. Speaking to the school The school is not correct in saying that this is purely a health need and is nothing to do with it. Remember that the term special educational needs (SEN) covers a broad spectrum which includes social, emotional and mental health needs. Schools must have regard to guidance issued by the Department for Education on their responsibilities where a mental health issue is affecting attendance. Further guidance for schools on how to identify and support pupils with mental health issues can be found in ‘Mental health and behaviour in schools: departmental guidance for school staff’. You may wish to ask the class teacher, SENCO and or senior management team for a meeting to discuss what might be behind your child’s mental health issues and how they can support her. Dealing with the Attendance Order You should take your daughter to your GP and explain what has been happening. If the GP (or any medical/mental health professional) feels that she isn‘t currently fit to attend school, ask for a letter to your local authority (LA) to be provided, explaining this. Evidence of this type would provide a documented explanation for her non-attendance. The GP should refer her to the Child and Adolescent Mental Health Service (known as CAMHS). The next step is to write to the person or department (which is likely to be the Educational Welfare Service) who threatened you with the Attendance Order, updating them about your daughter’s mental health and explaining that she has SEN. Suggest to them that serving an Attendance Order in these circumstances would be premature and inappropriate; and what is needed is co-ordinated action by support agencies to identify and make provision for all of your daughter’s needs. Hopefully, once everyone involved realises that your daughter’s non-attendance is to do with her SEN rather than with you deliberately keeping her away from school, the LA will quickly decide to reassess her needs/update her EHC plan (see below) and the threat of issuing an Attendance Order will be withdrawn. If your LA continues with the threat of serving an Attendance Order, or actually serve it, you will need to speak to a criminal solicitor who is familiar with education cases. You should check if you qualify for legal aid. Getting temporary education put in place Next, you should write to your LA and request that it provides alternative education for her whilst she is out of school for mental health reasons. Your LA has a legal duty to provide suitable education for children of compulsory school age who are out of school “by reason of illness, exclusion from school or otherwise”, under section 19 Education Act 1996. This education should be full-time unless, for reasons relating to her physical or mental health, it would not be in her best interests for full-time education to be provided. There is statutory guidance for LAs called 'Arranging education for children who cannot attend school because of health needs’. Full-time education is not defined in law, but the guidance states it should be equivalent to what the pupil would normally have in school. If a child receives one-to-one tuition the hours could be fewer as the education may be more intensive. It also states that LAs should provide such education as soon as it is clear that the child will be away from school for 15 days or more, whether consecutive or cumulative. They should liaise with appropriate medical professionals to ensure minimal delay in arranging appropriate provision for the child LAs should not: Have policies based upon the percentage of time a child is able to attend school rather than whether the child is receiving a suitable education during that attendance. Have lists of health conditions which dictate whether or not they will arrange education for children or inflexible policies which result in children going without suitable full-time education (or as much education as their health condition allows them to participate in). It is unlawful to withhold or reduce the provision, or type of provision, for a child because of how much it will cost. Therefore, LAs must not have policies that limit a child’s education to a specified number of hours per week due to cost or availability. There is no absolute legal deadline by which LAs must have started to provide education for children with additional health needs. However, the guidance says LAs should arrange provision as soon as it is clear that an absence will last more than 15 days and it should do so at the latest by the sixth day of the absence, aiming to do so by the first day of absence. This should hopefully mean she will not miss out on any more education whilst she is out of school. Amending the EHC plan to get the right support in place Clearly, the support currently in place through your daughter’s EHC plan is not enough, as she has been unable to attend school. It may be that she needs more support, or she may need to attend a different school entirely. You should consider asking for a re-assessment of your daughter’s SEN. This is because her EHC plan does not include her mental health needs or provision to meet those needs. It will be important for the EHC plan to be updated to include this information. You should tell your LA about the threatened Attendance Order and ask them, in these circumstances, to reach a decision about a re-assessment as a matter of urgency rather than waiting the full 15 days. If you want, you could also ask for an emergency placement to be arranged for your daughter in a special school for the purposes of a re-assessment. If your LA refuses your request for a re-assessment, you have the right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) (the SEND Tribunal). You should consider our information about re-assessments and whether there may be a quicker way of getting your daughter’s EHC plan updated. A note on home education In some cases, parents may be encouraged to make arrangements to educate their child at home and parents often feel pressured into doing this to avoid prosecution for non-attendance. However, elective home education is a serious step. Most significantly, it relieves the LA of the duty to make sure the child receives the special educational provision in Section F of the EHC plan. It may be better to amend the EHC plan to set out different provision and/or name a different school (or ‘education otherwise than at school’) rather than attempting to take on home education without support. If a child in this situation does not have an EHC plan, it may be worth asking the LA for an EHC needs assessment. What is important is to get everyone involved working together to identify all of your child’s needs and making sure those needs are provided for.
Our LA is saying now that our daughter is 16 she is only entitled to education over 3 days per week. When we challenged this it said this is the maximum all young people get once they are in post 16 education. Is this right? Expand We are worried that she’ll spend the rest of the time in her room doing nothing. The local authority say we should get in touch with Social Care and Health to see if they can help. Is it right that she is only entitled to a minimum amount of education? We thought she would be better protected with an education, health and care plan. It is not uncommon for local authorities (LAs) to try to limit the number of hours a young person with an education, health and care (EHC) plan receives based on national entitlements applicable to others of the same age. The difference is, when a young person has an EHC plan, the LA must specify the special educational provision which is required and not base this on what a young person of a similar age normally receives in terms of study hours. When young people continue to require education and/or training over 5 days per week, it is important that Section F of the EHC plan specifies this. LAs will often ask young people or parents to seek additional provision to make up for the remaining days through health or social care. However, even if additional provision has been identified through these services, it will need specifying in the EHC plan. If the health or social care provision educates or trains the young person, it is in fact special educational provision and therefore must go into Section F of the EHC plan. There is no legal basis for LAs to limit the number of hours a young person with an EHC plan is in education or training based on their age. If this change has come about because your daughter is due to transfer to college or another post-16 institute, then your LA will need to carry out a review and amend her EHC plan well in advance of the transfer. If your LA wants to amend the EHC plan, it will need to send you notice of the changes it wants to make first. It will be important to check what Sections B and F say about her needs and provision requirements. If your LA has already amended the EHC plan and Sections B and F are lacking in specificity, you will need to appeal to the SEND Tribunal. The deadline for appealing is two months from the date of the decision or one month from the date of the mediation certificate, whichever date falls the latest. Paragraphs 8.39 and 8.40 of the SEN and Disability Code of Practice contain some helpful guidance on five-day packages of provision for young people: “Where young people have EHC plans, local authorities should consider the need to provide a full package of provision and support across education, health and care that covers five days a week, where that is appropriate to meet the young person’s needs… Five-day packages of provision and support do not have to be at one provider and could involve amounts of time at different providers and in different settings. It may include periods outside education institutions with appropriate support, including time and support for independent study. A package of provision can include non-educational activities such as: volunteering or community participation work experience opportunities that will equip young people with the skills they need to make a successful transition to adulthood, such as independent travel training, and/or skills for living in semi-supported or independent accommodation, and training to enable a young person to develop and maintain friendships and/or support them to access facilities in the local community. It can also include health and care related activities such as physiotherapy. Full-time packages of provision and support set out in the EHC plan should include any time young people need to access support for their health and social care needs.”
I have concerns about my son’s EHC plan. The school says there will be an annual review meeting in the next few weeks so I want to know how to best influence the review and get more provision for him. What do I need to know? Expand It is important that the EHC plan properly specifies all of your son’s special educational needs (Section B) and the special educational provision (Section F) required to meet those needs. If your son’s current EHC plan lacks detail concerning his needs and provision requirements, the annual review process is a useful tool in trying to influence change to the EHC plan. The first step is to clarify the date of the review meeting. The person arranging the meeting (usually the head teacher) must: give at least two weeks’ notice of the meeting date invite specified professionals to the meeting, and obtain advice in relation to your son. Any advice obtained as part of the review must be circulated at least two weeks before the review meeting. There is more detail about this in the section on the annual review process. In particular, our annual review checklist contains tips on how to prepare for the meeting and sets out all of the steps that must be followed by the school or college and the LA. An important element here will be the information and advice which should be gathered in advance of the meeting. These can be used to influence change to the EHC plan. If there is a delay in carrying out or concluding the annual review, you can take action. If your LA decides to keep the EHC plan as it is, or to cease to maintain it, you will need to appeal to the SEND Tribunal.
Our child has an EHC plan and has just started year 6. We are worried about which secondary school she will go to. We’ve spoken to her current school and it has said we should receive a ‘general preference form’ soon. Do we need to fill in this form? Expand We’ve had a look at this form online and it says nothing about stating a preference for a special school which is what we believe is what she needs. We thought the process for children with EHC plans was different but the school says it isn’t and we must complete the general preference form in time otherwise there’ll be no places left. Local authorities (LAs) have a legal duty to review and amend an education, health and care (EHC) plan when a child or young person transfers from one phase of education to another – in this case, from primary to secondary. For a transfer from primary to secondary school, the annual review must be completed by 15 February in the year of transfer. The process that needs to take place is: Information must be gathered from you as well as from professionals about the EHC plan, and then circulated two weeks before the annual review meeting. You must receive at least two weeks’ notice of the meeting. An annual review meeting must take place to discuss the EHC plan. After the meeting a report of what happened must be written and sent to everyone who went to the meeting or provided information to be discussed. Within four weeks of the meeting your LA must tell you of its decision to maintain, amend or cease the EHC plan - at phase transfer it will need to be amended to name the new school/setting (or type of setting), the LA must send you details of the changes it plans to make to the EHC plan at the same time as sending you its decision to amend it. Your LA must finalise the EHC plan within eight weeks of the date it sent you the amendments. In order for the EHC plan to be amended and finalised by 15 February, discussions about transfer need to begin early in the autumn term of the year before transfer to allow plenty of time for the review and amendment process to happen. You can use our template letter if the LA has not begun the phase transfer in time, and request the review meeting is held without delay. As part of the annual review process your LA will send you a notice setting out the changes it intends to make to the EHC plan as set out above. You will be able to request the school you want for your daughter. Your LA must agree to your request unless it’s an entirely independent/private school or one of the exceptions set out in the law applies. If you disagree with your LA’s proposed school, or any other amendments it proposes to make to the EHC plan, you can use our template letter to set out your objections. It is important the review is concluded well before the end of year 6, because if your LA does not name the school you want in the final EHC plan, you will need to appeal to the SEND Tribunal. You will want the appeal to be concluded in good time for you to prepare for the September term. It is not uncommon for LAs to ask parents to complete a ‘general preference form’ so their preference(s) can be considered. However, these forms apply to children and young people without EHC plans through separate legislation. Therefore, parents who have children with EHC plans are not required to complete general preference forms.
The annual review is due, but we’re involved in an ongoing appeal to the SEND Tribunal about the EHC plan. How does this affect the process? Expand The annual review must take place within 12 months of the last review, or of the date the EHC plan was first issued. This is not affected by an ongoing appeal. As such, the annual review needs to take place. The annual review could be an opportunity to try and resolve some of the issues in dispute. If your LA issues a new amended EHC plan after the annual review, this new EHC plan is valid and enforceable and replaces the plan that has been appealed. If there are still parts of the EHC plan you are unhappy with, you can ask the Tribunal to treat the new EHC plan as a working document in the current appeal, rather than registering a new appeal. The SEND Tribunal may decide that you should submit a new appeal and ask for the appeals to be consolidated (joined together), so be careful not to miss your deadline for obtaining a mediation certificate and appealing. Please see our information on working documents for more information.
If I’ve successfully appealed to the SEND Tribunal and the LA have been ordered to issue an amended EHC plan, does the next review take place a year after the last annual review, or a year after the SEND Tribunal order? Expand The law says the annual review must take place within 12 months of the last review, or of the date the EHC plan was first issued. An amended plan being issued following a SEND Tribunal decision does not restart the clock. This can sometimes mean the annual review is required to take place shortly after a Tribunal decision. However, if your LA proposes to make any changes from what the Tribunal ordered, this must be backed up by new evidence and it should not remove provision ordered by the Tribunal simply because your LA disagrees with it.
My son has an EHC plan and is in a school year group below other children his age. Will the local authority expect him to move to secondary school with children his age or can he stay in his current year group and start secondary school a year later? Expand Case law has confirmed that being educated in a different year group to children of the same age can be special educational provision. This means: The special educational needs which mean that your child needs to be educated in a different year group should be described in section B of his EHC plan. Placement outside his normal year group should be set out in section F of his EHC plan. While it is, your local authority (LA) has to make sure it continues. This is because it has a duty to make sure your son receives the special educational provision in his EHC plan. If sections B and F of your son’s EHC plan include this, your LA should not try to remove it if there isn’t any evidence which shows he doesn’t need to be in the year below anymore. If sections B and F of your son’s EHC plan do not include this, ask your LA to update his plan so that they do. You could ask your LA to do this during the annual review of your son’s EHC plan. When a child with an EHC plan will be moving from primary to secondary school in the next 12 months, the LA must review and change their plan to include the name and type of the secondary school they will go to (or just the type if a particular school cannot be identified). The process your LA must follow is set out in law and includes your rights to ask for changes to his plan and for the secondary school you would like him to go to. Schools are registered to teach pupils in certain age ranges. You can find out a school’s age range online. You should check this for your son’s current school and the secondary school you would like him to go to. If your son will no longer be within the primary school’s age range, the school can apply to the Department for Education to either extend its registered age group or get individual permission to teach your son. If it looks like this might be necessary, we suggest you talk to the school about this as soon as possible.
I am a young person due to move from secondary school to post-16, but the LA hasn’t issued the amended EHC plan or started the review. What does the LA need to do? Expand Local authorities (LAs) have a legal duty to review and amend an EHC plan when a child or young person transfers from one phase of education to another. For a transfer from secondary school to post-16, the annual review must be completed by 31 March in the year of transfer. The process your LA must follow is: Information must be gathered from you as well as from professionals about the EHC plan, and then circulated two weeks before the annual review meeting. You must receive at least two weeks’ notice of the review meeting. An annual review meeting must take place to discuss the EHC plan. After the meeting a report of what happened must be written and sent to everyone who went to the meeting or provided information to be discussed. Within four weeks of the meeting, your LA must tell you of its decision to maintain, amend or cease the EHC plan. At phase transfer it will need to be amended to name the new placement (or type). The LA must send you details of the changes it plans to make to the EHC plan at the same time. You can use our template letter to make comments on the proposed amendments. You will be able to request the post-16 institution you want to attend. Your LA must agree to your request unless it’s entirely independent/private or one of the exceptions set out in the law applies. Your LA must then finalise the EHC plan within eight weeks of the date it sent you the amendments. In order for the EHC plan to be amended and finalised by 31 March, discussions about transfer need to begin once school re-opens after the Christmas break, in the year of the transfer, to allow plenty of time for the review and amendment process to happen. As you are already a young person, it sounds like the LA didn’t do this in time. You can use our template letter to request the review meeting be held without delay. If the LA has not amended your EHC plan to name your post-16 placement by the time you should start, it must still make sure you receive all the special educational provision in your EHC plan. If your LA does not name the place you want in the final EHC plan, you can appeal to the SEND Tribunal.
My local authority says my child’s annual review will be delayed as they are short-staffed and there is a long backlog. Is this allowed? Expand No. Local authorities (LAs) are legally obliged to complete annual reviews within 12 months starting with the date when the EHC plan was first issued, or 12 months from the conclusion of the last annual review. There are no valid legal reasons for delay. LAs are expected to organise themselves so that they can meet legal deadlines, and staff shortages are not an excuse. You can use our template letter to take action. If you feel there is an urgent need to amend the provision or placement in your child’s EHC plan, or your EHC plan if you are a young person, you could ask for an early review. LAs are also required to conduct and conclude annual reviews before a phase transfer by the applicable statutory deadlines. We have another template letter that you can use if your LA is late carrying out your child’s phase transfer review.
My child’s annual review meeting is coming up. Does everyone invited to it have to attend? Expand No. The person who is going to hold the review meeting must invite certain people, but they cannot compel or insist that they attend. The people who must be invited to attend are: you as the parent the provider of relevant early years education or the head/principal of the school, post-16 institution or other institution your child attends an officer of the LA who exercises education functions in relation to children and young people with SEN a health care professional (identified by the ICB), and an officer of the LA who exercises social care functions in relation to children and young people with SEN. Other people could also be invited but these are the ones that must be invited. However, annual reviews must take into account your views, wishes and feelings. This is a legal requirement under regulation 19 of The SEND Regulations 2014. So, if you think it is important that a particular person attends the meeting, you should say so and why. LAs and other public bodies have a duty to act reasonably, so explain why it is important for a particular person to attend, and they will have to consider this in deciding whether to attend or not. For example, if you want your LA SEND officer to attend, say so and why. They will have to take into account your views and wishes and these reasons to be acting reasonably. In addition, the Code says that “As part of the review, the local authority and the school, further education college or section 41 approved institution attended by the child or young person must co-operate to ensure a review meeting takes place. This includes attending the review when requested to do so.” (para 9.173). Remember that people can attend review meetings remotely, which may help a professional who would like to attend but will struggle to do so ‘in person’. You can ask for the meeting to be held remotely to accommodate this, or if the meeting is to be ‘in person’, ask for that person to be allowed to attend remotely.
School has told me when my child’s annual review meeting is going to take place, but I cannot make that date. What can I do? Expand Firstly, speak to school. See if the review meeting can be arranged for a different date and offer to school dates when you are available. That said, it may be, due to your child’s needs or circumstances, that it is really important the annual review meeting takes place when planned, even if you cannot attend. The meeting can still go ahead without you there. If this is the case, then you should make sure you provide school with as much information as possible when you are contacted for information. You should make clear what progress you think your child is making, and what changes you might like to see to the EHC plan (and why). Once the meeting has taken place, you will receive a copy of the report from school detailing the discussions from the meeting and any difference in opinions. If you disagree with anything in that report, send an email to school and the LA quickly letting them know your views. If the LA makes a decision following the annual review meeting which you disagree with, you can appeal it, and will have the right to mediation.
I would really like my child’s youth worker to attend his annual review meeting. Can they? Expand Yes. The following people must be invited to the review meeting and information from these people must be obtained: you as the parent a representative of the school or other institution attended an LA SEN officer a health service representative, and an LA social care representative Other people can also be invited. This can include professionals working with your child, youth offending teams and job coaches for example. You should make sure your child’s youth worker has received a request for information and an invitation to attend. If they haven’t, ask school to send this to them. If they can’t attend then they should still be able to provide information and advice to be circulated for the meeting. The Code is clear that “The school (or, for children and young people attending another institution, the local authority) must seek advice and information about the child or young person prior to the meeting from all parties invited, and send any advice and information gathered to all those invited at least two weeks before the meeting” (para 9.176).
My daughter’s school has said it cannot hold the annual review meeting, it is too short staffed. What should happen? Expand Your child’s school should have been told by the LA at least two weeks before the start of term which children with EHC plans will require an annual review meeting (para 9.172, the Code). This means that school should have known when your child’s review was coming up and planned for it. If the school has not planned for the review, or is unable to carry out the review meeting for some reason, the meeting must still go ahead. It is the LA’s responsibility to make sure that the annual review process is carried out in accordance with the law. So, if school cannot arrange the meeting or attend it for some reason, the LA will need to step in. You can remind your LA about this and its duty under regulation 20(1) of The SEND Regulations 2014.
My child is in Year 5. The deadline for the next annual review of my child’s EHC plan is 15 April. When my child starts year 6, what effect will the phase transfer review have on the deadline for when the next review needs to be completed by? Expand When your child is in Year 5, the annual review will need to be completed by 15 April as usual. When your child starts Year 6, your LA should start the phase transfer review process in the autumn term to make sure that it leaves enough time to carry out and complete the review before the phase transfer deadline of 15 February. As an example, if the phase transfer review meeting is held on 1 November, your LA must tell you its decision about the plan within 4 weeks of that meeting (29 November at the latest). Your LA must tell you if it is going to maintain the EHC plan without any changes, change the EHC plan (and what changes the LA is proposing), or cease (stop) the EHC plan. If the deadline for the LA to tell you this decision by is 29 November and the LA sends to you its decision on 25 November, then the review is concluded on that November 25th date. This has the effect of re-setting the clock for annual reviews. The next annual review for your child’s EHC plan in Year 7 must be completed by 25 November, not 29 November or 15 April. The dates for reviews to be completed by for your child would look like this: Year 5 – by 15 April 2024 Year 6 – by 29 November 2024 Year 7 – within 12 months of 25 November 2024 Year 8 – within 12 months of the date the Year 7 annual review was concluded. Remember too, if your LA is going to amend your child’s EHC plan in a phase transfer review it must: send to you its proposed amendments at the same time it tells you its decision to amend the EHC plan give you at least 15 calendar days to comment on the draft plan, ask for a particular school or other institution is named and request a meeting with the LA, and send to you the final EHC plan within 8 weeks of its decision letter (this date must always be by the longstop date of 15 February). In this example, if the LA decided to amend the EHC plan, it must send a final version of it within 8 weeks of its decision letter of 25 November (and not by 15 February).