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Amended Education Health Care Plans must be finalised in 12 weeks

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In R (L, M, and P), v Devon County Council  [2022] EWHC 493 (Admin), an important recent decision, the High Court held that every Local Authority (LA) must keep to legal time limits when carrying out the Annual Review process.

EHCPs are legal documents setting out the provision an LA must secure for children and young people up to the age of 25 years who have special educational needs and/or disabilities.  Generally on a yearly basis, EHCPs are reviewed to ensure the support included in them and the school named remains suitable for each child. All too often this process is not completed properly and LAs delay updating EHCPs meaning children are left for months or sometimes years without the support they need and in a school that cannot meet their needs. This can lead to children falling further behind, needs becoming more serious, essential therapy not being delivered or failure to attend school at all due to the inappropriate environment leading, for example, to significant mental health issues.

This case looked at the timeframe to complete the annual review process and specifically whether there was a fixed date by which LAs must produce an amended EHCP,  where this is needed. The Claimants argued that within 12 weeks of the annual review meeting, properly read the statutory scheme requires  LAs to issue a final amended EHCP. This is an important step because the issue of the final amended plan triggers legal right to appeal provision in the EHCP. The Defendant's case was there was no strict timetable in the SEND Regulations.

They stated that an LA must notify a child's parents within four weeks of an annual review meeting of their intention to propose amendments but the specific amendments were only to be notified subsequently. They argued that no specified time limit applies to notifying parents what the specific amendments were. Further, the subsequent issue of the finalised EHCP was to take place as soon as practicable, and, in any event, within 8 weeks of sending the parents the proposed amendments. The Defendant stated that the timing of the final issue of the plan depends upon when they had notified parents of the specific amendments.

The outcome of the case:

The court confirmed however that properly construed the SEND Regulations require that the draft amended EHCP must be issued within 4 weeks of the annual review meeting and that the final amended plan must be issued within 12 weeks of the annual review meeting.

A word from our team:

SEND solicitor at Gateley Legal Sarah Fitzgibbons commented:

“This is such an important and positive decision for children with SEND and their families, who are often left picking up the pieces when LAs do not amend EHCPs in a timely manner. Parents can find themselves being forced to become home educators, therapists and mental health counsellors for their children whilst also holding down jobs and meeting other family commitments. Children with SEND ultimately suffer as a result. This decision means that amendments must be made in a prescribed period and cannot be delayed. This means provision must be delivered when it is needed and allows families to commence an appeal quickly if they do not agree with the LA’s decisions."

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