When is a child transferring from statement to EHCP and going into Key stage 3 are the Local Authority (LA) allowed to take longer than 20 weeks?
As parents, our draft was sent to us at the last possible moment, and we received it three days later which only gave us ten days to respond. The LA is blaming us for raising issues about the draft, and that's why the final plan was so late despite the fact it was already two months over the 20-week deadline when we received the draft.
The school that the LA want her to attend received the draft plan before anyone else. The professional's and the current school didn't receive the draft until after the 15th February.
Children or young people transferring to a different phase of education or coming into year 9 during 2016 or 2017 - the LA must carry out and conclude an EHC needs assessment before 15th February in the year in which the transfer to a different phase of education takes place or 31st March where the transfer is to post 16 institution. For those coming into year 9, the transition must be completed before they come to be in year 10.
The maximum timescale is 20 weeks, which includes the notification letter. There are some circumstances in which the LA may not be required to comply with the 20-week time limit if it would be impractical for them to do so. These are where:
- the authority has requested advice from the head teacher or principal of a school or post-16 institution during a time when it is closed for a period of longer than 4 weeks (i.e. in the summer holidays)
- the authority has requested advice from the person identified as having responsibility for special educational needs from a provider of relevant early years education during a time when it is closed for a period of longer than 4 weeks ( i.e. in the summer holidays)
- exceptional personal circumstances affect the child or the child’s parent, or the young person during that time period; or
- the child or the child’s parent, or the young person, are absent from the area of the authority for a continuous period of not less than 4 weeks during that time period.
If one of the exceptions applies, the LA will only be able to rely on it if they can show that making the decision on time would be impractical because of the exception. The LA is still be required to notify you of their decision on your request as soon as practicable.
If none of the exceptions applies to your case, then it would appear that the LA is in breach of their legal duty. You may want to complain formally to the Monitoring Officer at the LA about the breach. If you are not satisfied with the outcome of your complaint, you can complain to the Local Government Ombudsman (LGO). The LGO expects complaints to be made first of all to the LA before they will investigate. If there is an alternative remedy such as a right of appeal to the tribunal, then the LGO will normally wait for the outcome of the appeal before investigating, as a decision may be needed before they can assess the injustice.
There is no date specified in law by which the draft EHC plan must be issued, but for the transition process to be completed within 18 weeks, this must be issued by week 12 to allow for the draft EHC plan consultations. In conducting Transfer Reviews, LA must have regard to the 2015 Code, including the content as appropriate of chapter 9.
You have at least 15 calendar days after receipt of the draft EHC plan in which to:
- make representations to the LA about the contents of the draft EHC plan;
- ask for a meeting with an LA officer to discuss the draft EHC plan;
- tell the LA the type of school/college (mainstream or special) and the actual school/college you would like named in the final EHC plan.
When you received, the draft EHC plan the LA must advise you where you can find information about the schools and colleges that are available for your child to attend.
Section I of the draft EHC plan must be left blank because the LA should not start the process of drafting the contents of an EHC plan with a particular school/institution or type of school/institution in mind. The EHC Plan should, therefore, be written based on the needs of the child or young person and the provision be put in place to meet those needs and achieve the outcomes identified.
The Local Authority must consult with the school/college you have requested, and the school or college should respond within 15 days.