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When EHCP conversion is used as a tactic against appeal

View profile for Andrew Barrowclough
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Recently a number of cases have raised the issue as to whether starting the EHCP conversion process during a current appeal stops a parent’s ability to continue with an appeal in the SEN Tribunal in England.

What is often happening is that Local Authorities are conducting a ‘transition annual review’ in the autumn year of the child’s final year in that phase of education. If a parent wants an alternative specialist school then the annual review is the vehicle within which to make that change of placement request. The LEA are legally obliged to consider the annual review recommendations (including any specific parental recommendations) within a ‘reasonable period of time’. That can take months after the review meeting.

So in the frequently described above scenario parents often do not hear back from the LEA until the next calendar year and a letter may arrive in January after the autumn annual review. That letter may confirm that the parent’s choice of school has been rejected and thus parents then have a right of appeal to the SEN Tribunal. There may also be an indication that the Local Authority will soon draft an EHCP to replace the current Statement of Special Educational Needs.

The right of appeal relates to the existing final statement and the refusal to change the statement further to the annual review- it does not relate to the EHCP at all. If a parent exercises that right of appeal then it would be under the old SEN system regarding statements. The interesting aspect of this entire scenario is that at this point upon finding out an appeal has been lodged many Local Authorities are suddenly becoming interested in rapidly issuing an EHCP document. They consider that this will slow down and disrupt the appeals process. They also in some cases realise that by that stage they have delayed and should have probably issued an EHCP many months earlier.

The difficulty it that converting to an EHCP usually takes place in a phased transfer period (in Year 6 or Year 11). So there is simply no time to stop the tribunal process to discuss the wording of the EHCP. An appeal lodged in January is likely to result in a hearing in June and then the child in question transfers to a new school in September 2016.

A recent case in the lower tier tribunal has helped to explain whether an LEA can use conversion to an EHCP as a tactic in tribunal and basically they cannot. If a parent has a live appeal to the tribunal then the LEA cannot issue an EHCP- it would be an informal document. The key issue is whether the Local Authority have issued the required legal notice indicating that they have started the statutory re-assessment process prior to issuing an  EHCP. They are supposed to issue the notice, conduct the statutory re-assessment and then have the transition review meeting. Most LEA’s however start backwards by having the meeting first and that actually creates many problems later for themselves. If they haven’t issued the notice for re-assessment then a parent can lodge an appeal to the tribunal which halts the entire EHCP process. This is often preferably rather than suffering many delays.

It would help if Local Authorities brushed up on their obligations as set out clearly within the relevant regulations.

It is concerning to think about the number of parents who have probably withdrawn their appeals to tribunal because of the LEA issuing EHCPs halfway through the process. If you would like to discuss this education law issue with one of our specialist SEN solicitors then please do call us today on 02920 291704.