Changing EHCPs

Contents


Once in place an EHCP can be changed or ceased at any point. Once an EHCP is in place for a child or young person, it does not necessarily remain static.

These are examples of reasons why an EHCP may need to be changed:

  • it may become apparent quite quickly that the EHCP does not specify the special educational needs or provision adequately
  • the school placement may break down
  • it may simply be that the EHCP becomes out of date, especially where outcomes may have been too unambitious or short term
  • you may move to another LA
  • it may happen that the child or young person makes so much progress that the EHCP is no longer needed or
  • the LA may decide that it wishes to cease to maintain the EHCP.

In addition, at least once a year, (subject to certain exceptions), the EHCP is required to be reviewed under the provisions of the Children and Families Act 2014.

The LA can decide to amend an EHCP at any time. If they do so following a re-assessment then the procedure to be followed will be the same as when an EHCP is first issued. If they do so at any other time then the procedure to be followed is the one set down for amendments to EHCP after annual review, dealt with below.


Annual Reviews

Section 44(1) contains the obligation upon the LA which maintains an EHC plan to conduct an annual review:

(1) A local authority must review an EHC plan that it maintains—
(a) in the period of 12 months starting with the date on which the plan was first made, and
(b) in each subsequent period of 12 months starting with the date on which the plan was last reviewed under this section.

The EHCP must be reviewed within each period of 12 months starting with the date on which the plan was first made or of the previous review. So if a plan is issued on 1 January 2019, it must be reviewed before 31st December 2019. If this EHC plan is then reviewed under section 44 on 1 September 2019, a new period of 12 months starts on the date of that review and the EHC plan will have to reviewed again before 31 August 2019.

For children under 5, the Code suggests more frequent informal reviews, to “complement the duty to carry out a review at least annually”. Where such informal reviews take place, parents and young people will not have the same specific legal rights to information and participation, although these reviews are still under the over-arching principle that LAs must enable parents to participate as fully as possible, under section 19 of the Act.

An annual review is not simply a meeting which takes place to discuss the child or young person. A meeting is a key part of the review but it is only one element of it. The review is the entire process of the LA gathering information, including from the review meeting, looking at the plan in the light of that information and then deciding whether to amend or cease the plan or to leave it alone. All of these elements have to take place and the last element in the process is the notification of the decision the LA has made.


The components of the annual review process and the duty to consult

The SEN Regs set out what a review must legally comprise and this includes:

  • The consultation process
  • The conduct of the meeting
  • The obtaining of information and the preparation of an annual review Report and
  • The requirement upon the LA to make a decision and notify the child’s parent or the young person what they have decided

Paragraph 9.166 of the Code states that reviews should be used to “actively monitor” children and young people’s progress towards their outcomes and longer term aspirations.

Paragraph 9.167 of the Code lists what LAs should do to review a plan:

  • gather and assess information so that it can be used by early years settings, schools or colleges to support the child or young person’s progress and their access to teaching and learning;
  • review the special educational provision made for the child or young person to ensure it is being effective in ensuring access to teaching and learning and good progress;
  • review the health and social care provision made for the child or young person and its effectiveness in ensuring good progress towards outcomes;
  • consider the continuing appropriateness of the EHC plan in the light of the child or young person’s progress during the previous year or changed circumstances and whether changes are required including any changes to outcomes, enhanced provision, change of educational establishment or whether the EHC plan should be discontinued;
  • set new interim targets for the coming year and where appropriate, agree new outcomes;
  • review any interim targets set by the early years provider, school or college or other education provider.

SEN Reg 19 contains a provision which reflects the language of section 19 of the Act (the over-riding principles) and which imposes the various consultation requirements on a local authority during the process:

  • To consult the child, the child’s parent or the young person and take account of their views, wishes and feelings;
  • To consider the child or young person’s progress towards achieving the outcomes in the EHC plan (and whether those outcomes remain appropriate); and
  • To consult the school or other institution attended by the child or young person. These are “must” obligations upon an LA which underpin all of the conduct of a review under the Act and they are reflected in the Code at the end of paragraph 9.166:

“…Reviews must focus on the child or young person’s progress towards achieving the outcomes specified in the EHC plan. The review must also consider whether these outcomes and supporting targets remain appropriate.”


The annual review meeting

SEN Regs 20 and 21 contain detailed requirements about the review meeting.

For most schools and institutions, the LA can require the head teacher or the principal to arrange and hold the meeting. LAs can request that early years settings, Further Education colleges or other post-16 institutions do the same but cannot require it. Many are likely to do so.

The first step is for the head teacher arranging the meeting to obtain advice and information about the child or young person, which will be circulated with the meeting invitations. The advice must be obtained from the following people, who must also be invited to attend the meeting:

  • The child’s parent or the young person;
  • The head or the principal;
  • The LA SEN Case Officer;
  • A health care professional identified by the responsible commissioning body; and
  • An officer of the LA from the part of the LA exercising the social services function.

Please note that all of these people need to be invited but there is no legal requirement that they attend. At least two weeks’ notice of the meeting is required, so the advice and information should be sought before that point.

After the meeting, the head teacher or principal will be asked to prepare a written report with recommendations on any amendments to the EHCP, setting out any differences between those recommendations and recommendations of others attending the meeting. This written report must be circulated within 2 weeks of the review meeting.

Where the child or young person does not attend a school or other institution the LA must arrange the meeting, inviting the same people as above (other than the head or principal as this will not apply) plus any other person whose attendance the LA considers appropriate. The same time limits will apply with the LA having the obligation to prepare the written report.

The LA has four weeks from the date of the review meeting to make up its mind about and notify the parents of, which of the three possible decisions it will make:

  1. to leave the plan alone
  2. to amend it or
  3. to cease it.

The Code advises LAs to start the process of amendment without delay if that is their decision (paragraph 9.177).

If the decision of the LA is to cease to maintain the EHCP or to continue to maintain the EHCP without amendment, then the notification to be given to the parent or to the young person must include their right of appeal.

If the decision of the LA is to amend the EHCP, then the provisions of Regulation 22 will apply as to what will happen next.


Amending an EHC plan following a review

When the LA is considering amending an EHCP following a review (or at any other time other than following a re-assessment) the first step in the process is to send the child’s parent or the young person a copy of the EHCP together with a notice specifying the amendments to be made together with copies of any evidence which supports those amendments.

The parents or the young person must be given at least 15 days to make representations about the contents and to request that a particular school or other institution be named in the EHCP. The LA has a period of eight weeks from the date they sent notice of the proposed amendments in which to issue the finalised EHCP or to decide not to proceed with the amendments.

This means that the LA, having started the process, can still decide not to amend the EHCP. This is unlikely to happen but it is possible. The Regulations do not explicitly require the LA to inform parents or young people of their right of appeal in this circumstance but it is plain that the right exists by section 51(2)(e) of the Act, which allows an appeal against a:

“decision of a local authority not to secure the amendment or replacement of an EHC plan it maintains for the child or young person following a review or re-assessment under section 44”.

In either case the LA must, within the eight weeks, notify the parents or the young person of their decision, together with the finalised plan if it has been finalised and notify the parent or young person of their right of appeal.


Phase Transfer / Key Stage transfer

The expression ‘Phase Transfer’ or ‘Key Stage Transfer’ means when a child or young person is moving between phases of education.

It is a defined term in the SEN Regs as

“transfer between phases of education” means a transfer from: (a) relevant early years education to school; (b) infant school to junior school; (c) primary school to middle school, (d) primary school to secondary school; (e) middle school to secondary school; or (f) secondary school to a post-16 institution”.

Where a child or young person is within 12 months of a transfer between phases of education the local authority must review and amend the EHCP. This will be, at the very least, to name the school, post-16 or other institution, or type of school or institution, which the child or young person will attend following that transfer. The LA must issue the child or young person’s finalised EHCP before:

  • 31 March in the case of a transfer from secondary school to a post 16 institution
  • 15 February in the case of a child’s transfer in any other case

In order for an EHCP to be reviewed and amended by the 15 February in a calendar year (in the case of a child), the annual review process must first take place, followed by the procedure for finalising the amended EHC plan once a proposal is issued, which has a time limit of 8 weeks as described above.

Therefore, for children who are going into phase transfer, it is likely that the annual review meeting will need to be called in the autumn term at the beginning of the child’s last academic year in the setting they are leaving to enable these statutory time limits to be met. Failure to issue the amended EHCP by the time limits in the year of a phase transfer is a breach of statutory duty by the LA.


Transfer of EHCPs or change of responsible commissioning body (moving LA)

SEN Reg 15 deals with what happens when a child or young person with an EHCP moves LAs. The obligation to maintain the EHCP will transfer to the new LA on the day of the move or within 15 working days of the new LA becoming aware of the move, if later.

The child may be able to remain at the school or institution named in the EHCP whilst the new LA decides how to proceed but there is an exception to this in SEN Reg 15(6). This is where it is no longer practicable for the child or young person to attend. In that case the new LA can move the child to another school or institution appropriate for him or her until it becomes possible to amend the EHCP.

The new LA has to review the EHCP under section 44 of the Act before the expiry of the later of the period of 12 months since the EHCP was made or the previous review or the period of three months beginning with the date of the transfer.

If the new LA wants to carry out a new EHC needs assessment it can do so but if the child’s parent or young person, the person who provided the advice and the old LA are satisfied that the advice obtained in connection for the old EHC needs assessment is sufficient then the new LA must not seek further advice (SEN Reg 15(3)(b)).


Ceasing to maintain an EHCP

The LA may issue a notice to cease to maintain an EHC plan at any time.

The SEN Regs provide for a two stage process: (1) when a local authority is considering ceasing to maintain an EHCP it must inform the child’s parent or the young person and consult them as well as the head teacher or principal and (2) having carried out that consultation, if the LA decides to cease to maintain the EHC plan it must then notify the child’s parent or young person, the institution named and the responsible commissioning body.

The cease to maintain notice must include the right of appeal and the time limits. If the parent or young person does not appeal, the EHCP will remain in place until the end of the time limit in which an appeal can be made and then come to an end. If the parent or young person does appeal, the EHCP will remain in place and must continue to be implemented until the appeal is decided by the Tribunal.


Dropping out of a course or out of Education or training

If a young person drops out of a course, the LA is not relieved of responsibility for them until they have conducted a review of their EHC plan and found out whether the young person wants to carry on in education or training (possibly with more support or on a different course) (SEN Reg 30 and the Code, paragraph 9.203).

Where a child or young person with an EHC plan under 18 is not receiving education or training, under SEN Reg 29(2) the LA must:

  • conduct a compulsory review of the EHC plan in accordance with SEN Regs 18 and 19; and
  • amend the EHC plan to ensure that the young person continues to receive education or training.

In other words, for young people under 18 the LA cannot cease to maintain the EHCP because the young person is for some reason out of school or college.

The LA determines that the EHCP is no longer necessary:

Section 45(2) of the Act gives an example of a circumstance in which it would no longer be necessary for an EHC plan to be maintained:

Section 45(2) The circumstances in which it is no longer necessary for an EHCP to be maintained for a child or young person include where the child or young person no longer requires the special educational provision specified in the plan.

Section 45(3) says that when the LA is determining that special educational provision is no longer required for a young person over 18, the LA must have regard to whether the educational or training outcomes in the EHCP have been achieved. Note that they cannot cease to maintain the EHCP only because the outcomes have been achieved. In some cases the outcomes may be out of date, or not have been ambitious enough, and so despite having achieved them the young person wishes to continue with education and continues to require special educational provision to be made through an EHCP. The requirement under section 45(3) is just that the LA has regard to whether they have been achieved.