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EHCP - Post 16 Phase transfer deadline
31 March EHCP deadline for transition to Post-16 placements in September 2023 – We answer frequently asked questions on this deadline, process and appeals.
What is the 31 March deadline?
Local Authorities must issue Final Amended EHCPs for young people who are due to transition to a Post-16 placement in September 2023, by 31 March 2023.
This deadline is important for a number of reasons. It will confirm what placement the young person will attend from September 2023, along with the provision they will receive. This is important as it allows time for transition work to be completed with the young person before the placement starts. It also provides a small window of time to challenge the contents of the EHCP including the placement named, through the First-tier Tribunal (Special Educational Needs and Disability).
What can I do if the Local Authority does not comply with the 31 March deadline?
The 31 March deadline is set out in law, and if a Local Authority does not issue an EHCP by this date they will be in breach of the law. This can be challenged through either a claim for Judicial Review or a complaint to the Local Government and Social Care Ombudsman. You cannot pursue both options and therefore we recommend seeking advice from a specialist SEN solicitor on which of these would be more appropriate in your case.
From experience we have found that sending the Local Authority a detailed legal letter call a ‘Letter Before Claim’, which is required before you can make a Judicial Review Claim, normally leads to the Local Authority issuing the Final Amended EHCP and quicker than the Local Government and Social Care Ombudsman would consider a complaint.
If the Local Authority does not issue the phase transfer EHCP by 31 March, we strongly recommend you take immediate action regarding this. The delay in receiving the phase transfer EHCP, would delay you obtaining a right of appeal against it, which you may want to use.
How do I challenge the Final [Amended] Plan, if I am not happy with the contents of it/ the placement named?
When the Final Amended EHCP is issued, a right of appeal to the First-tier Tribunal (Special Educational Needs and Disability) is given. For anyone who turns 16 during the academic year 2022/23 the right of appeal will be in the name of the parent. For older young people the right of appeal will be in their name, unless they lack capacity to appeal. Should you be concerned that a young person lacks capacity to appeal we recommend you seek legal advice.
Why should I appeal to the Tribunal?
You can use this to appeal to request amend the description of educational needs, the provision to meet their educational needs and the placement named. The Tribunal can make an Order on these education sections which the Local Authority must comply with.
You can also include the health and social care sections of the EHCP in the appeal, but the Tribunal can only make recommendations for changes to be made, not Orders. From experience, the recommendations are generally complied with and in instances that they are not, we can consider how to challenge this.
With Post-16 appeals it is often advisable to also appeal the health and social care sections too.
Is it true an appeal to the First-tier Tribunal (Special Educational Needs and Disability) will take a long time?
The Tribunal is dealing with a larger number of appeals than they have previously had to and this is impacting on the Tribunal’s ability to list cases for a Hearing quickly. However, they have been prioritising phase transfer appeals and are currently listing them for a Hearing date before the end of the current academic year.
Last year it was not possible for the Tribunal to list all the phase transfer appeals for Hearings before the end of the academic year. The Tribunal does not list cases for Hearings in August so this meant some Hearings were listed for dates from the September onwards. There is no guarantee it will not happen again so with all Post-16 transition appeals, we strongly recommend an appeal is issued promptly, to maximise your chances of trying to have your case heard before September.
Although we strongly recommend you submit a prompt appeal, you should also be aware of what the deadline to appeal is. This requires you to issue your appeal to the Tribunal either, within 2 months of the date of the covering letter to the Final Amended EHCP, or within 1 month of the date of the mediation certificate – whichever of the two dates is the latest.
What help is available?
If you are a parent who has not yet received a Final Amended EHCP for your child’s Post-16 transition, or if you need assistance with an appeal against this, please get in touch with our specialist education law team who can assist.
Call us on: 0333 202 7175 or email firstname.lastname@example.org