According to government data, there were 473,255 children in England with education health and care (EHC) plans in January 2022, representing an increase of 9.9% on the previous year and continuing a trend of year-on-year increases since 2010. Complaints about local authority education and children’s services, many of them concerning EHC plan delays and other failures, dominate Local Government and Social Care Ombudsman’s casework, with 77% of complaints upheld in 2020-2021.
We dedicate this issue to an important High Court judgment (March 2022) which clarified the statutory timescales for notifying children, young people and their families of the proposed changes to an EHC plan following an annual review.
High Court judgment clarifies statutory timescales for sending notice confirming proposed amendments to an education, health and care plan
The case was brought to the High Court on behalf of three children, referred to in the judgment as L, M and P.
L, M and P all have education, health and care (EHC) plans. Following annual plan reviews for each of the children, serious delays took place before the amended EHC plans were issued.
The children’s legal representative claimed that the responsible local authority “significantly breached a time limit of four weeks from the statutory review meeting for sending a notice confirming its proposals for amending their EHC plans”.
It took 9 weeks for the local authority to issue a notification about the proposed changes in respect of L, 14 weeks in respect of M and 25 weeks in respect of P.
For all three children, it took between 11 and 14 months for the final amended plans to be issued, despite correspondence from solicitors on behalf of all three children during that time.
The issue of timescales is significant because the moment when the final amended EHC plan is issued triggers the right to appeal decisions to a Tribunal. Delays on the side of the local authority may mean that an appeal to the SEND Tribunal is delayed, effectively preventing children and their families from challenging an EHC plan and forcing them to wait until the next academic year to seek changes and improvements.
The issue before the court
The children’s lawyer argued that it’s imperative to complete all the steps in the amendment process “as soon as possible in the best interests of the child or young person in question” and that there is a four-week time limit from the date of the statutory review meeting for sending a notice confirming proposed amendments to an EHC plan.
The responsible local authority’s lawyer argued that the law does not impose an express time-limit for this part of the process, and that local authorities are only under a duty to issue an amended plan within a ‘reasonable time’.
The High Court set out to determine whether there is a fixed timeframe in law that local authorities must follow when a decision is made to update an existing EHC plan following a statutory annual review.
The legal framework
Overview of local authority duties
Part 3 of the Children and Families Act 2014 states that:
– Local authorities in England must exercise their functions with a view to ensuring that all children and young people with learning difficulties or disabilities in their area are identified (section 22);
– A child’s parent or a young person may request an assessment of educational, health care, and social care needs (section 36) and they have the right to appeal to the First-tier Tribunal if a local authority refuses to carry out an assessment (subject to a requirement to complete mediation) (section 51);
– If, based on the completed assessment, it is necessary for special educational provision to be made for the child/young person, the local authority must secure the preparation of an EHC plan and then maintain it (section 37(1));
– Local authorities must review EHC plans every 12 months (section 44(1)).
[Please note, paragraphs 21 and 23 of the judgment draw on a relevant 2021 Court of Appeal case and contain a very useful, more detailed summary of the relevant primary and secondary legislation].
The specific duties connected to annual EHC plan reviews and decisions to amend an existing plan:
Secondary legislation: The Special Educational Needs and Disability Regulations 2014
When a local authority reviews an EHC plan of a child/young person, it must hold a review meeting (regulation 20(1)) [regulation 20(2) lists the people who must be invited to the review meeting).
Following a review, the local authority must decide whether to propose to:
a) continue to maintain the EHC plan in its current form;
b) amend it; or
c) cease to maintain it,
and it must notify the child’s parent or the young person within four weeks of the review meeting (regulation 20(10)).
Where the local authority is considering amending an EHC plan following a review it must, alongside other duties (which include setting out the views, interests and aspirations of the child/young person and their parents):
– Send the child’s parent or the young person a copy of the EHC plan together with a notice specifying the proposed amendments, together with copies of any evidence which supports those amendments (regulation 22(2)(a));
– Give them at least 15 days, beginning with the day on which the draft plan was served, during which time they can make representations about the content of the draft plan; request a particular school to be named in the plan; or request a meeting with an officer of the local authority to make representations orally (regulation 22(2)(c)).
In cases where the child’s parent or the young person make representations to the local authority and it decides to go ahead and amend the EHC plan, it must send the finalised EHC plan to (a) the child’s parent or to the young person; (b) the governing body/principal of the school/other institution named in the EHC plan; and (c) to the responsible commissioning body as soon as practicable, and in any event within 8 weeks of the local authority sending a copy of the EHC plan together with a notice specifying the proposed amendments to the child’s parent or the young person (section 22(3)).
The High Court’s decision
On behalf of the children, the lawyers argued that the proposed plan amendments should have been communicated to the children’s families at the same time as the local authority gave notice (as per regulation 22(2) of the 2014 SEND Regulations) that they proposed to amend the EHC plans, i.e., within four weeks of the review meeting.
Local authority lawyers, on the other hand, argued that regulation 22 notice must be sent “within a reasonable period of time as is well established in administrative law” because there is no fixed statutory time limit.
The High Court concluded that the interpretation of the statutory timescales put forward by the children’s legal representative was correct:
“In my judgement, in order to be meaningful, the Regulation 20(10) notification must include the gist of the way forward. Regulation 20(10) should therefore be read as meaning:
“the local authority must then decide whether it proposes to… [and each option is then set out]… and must then notify [as is appropriate for each case] the child’s parent or the young person… within four weeks of the review meeting.” [paragraph 70 of the judgment]
“Regulation 20 must be read with Regulation 22; the plain meaning of the word “notify” in Regulation 20 in the context of this statutory scheme means notify the relevant people of the substance of the proposed way forward. In the case of an amendment, that substance includes a draft of the proposed amendments” [paragraph 84 of the judgment].
Importantly, while the High Court explicitly recognised the resource challenges faced by local authorities, it made clear that insufficient resourcing of children’s services does not change the clear duties set out in law:
“The court is not without sympathy for the resource-led arguments of a local authority, however, the whole of the scheme could be described as resource heavy, and time dependent. That is a clear deduction from the statutory framework, the Regulations and the Code. It is clear that there is throughout this legislation a tension between timing and available resources. That inheres as a result of Parliament’s choices, it cannot condition what in my judgement is the clear meaning of the statutory instrument in question” [paragraph 84 of the judgment].
You can read the full judgment here: L & Ors, R (On the Application Of) v Devon County Council
To learn more about EHC plans, please refer to the May and March 2022 issues of our children’s rights legal digest, where we covered a number of related statutory provisions, including children and young people’s participation in decision-making, the duty to prepare and maintain an EHC plan, the duty to secure special educational provision, and the power of local authorities to continue to maintain an EHC plan after a young person’s 25th birthday.
For examples of recent, relevant Local Government and Social Care Ombudsman decisions, see, for instance, (20 009 340), (21 004 607) or (21 009 229). You can browse all ‘education’ decisions here and, if you’re looking for decisions relating exclusively to special educational needs, click here.