Every local council must keep to fixed legal time limits when reviewing the needs of children and young people with special educational needs and disability (SEND), according to a new High Court judgement.
This means there can be no delays in updating education, health and care (EHC) plans, which could have a “monumental impact” on the whole annual review process going forward.
The Judicial Review brought by three young children was issued in the High Court in April 2020. An initial hearing in August 2020 decided the matter was academic, as the council had caught up with issuing amended EHC plans for these children long before the court hearing. But the Court of Appeal decided it was not academic and sent it back to the High Court which heard the case again on 30 April 2021.
“This judgment has been a long time coming, but so worth waiting for,” said Dr Keith Lomax, solicitor with Watkins Solicitors, who conducted the case for the claimants throughout.
“Councils prosecute parents for failing to ensure their children attend school and argue that every day matters. Yet they regularly delay for months in their duty to make sure children with special educational needs get the provision they must have. Children end up out of school for months. Mental health gets worse. Parents struggle to get suitable school placements. All because the council has delayed updating the EHC plans.”
He added that this judgment would be a wake-up call to local authorities across the country that have been using what was seen as a loophole in the regulations to delay updating the EHC plans and provision for children with SEND.
By four weeks after an annual review, the local authority must issue a notice stating its intention whether to amend an EHC plan, or to maintain it unchanged, or to cease it. When it is to be amended the local authority issues a draft amended plan. There is then time for parental response to it before the amended plan is made final.
The final amended plan must be issued within eight weeks of sending out the draft plan. Dr Lomax said that councils have been deciding for themselves when to issue the draft plan.
The court judgment confirms that the draft amended plan must be issued within four weeks of the annual review. The final amended plan must be issued within 12 weeks of the annual review.
Councils will also need to act promptly when preparing for annual reviews. Updating information should be sent out two weeks beforehand. If they comply with the law at that stage, then they will be better placed to comply with the time limits throughout the process.
The Honourable Mrs Justice Foster DBE, in her judgment, said: “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.”
The long-standing issue of delay in getting EHC plans amended was raised by Emma Grimbly, of Watkins Solicitors’ education department. The claim on behalf of three children was then conducted by solicitor Keith Lomax. Counsel for the claimants were Steve Broach and Alice Irving. Counsel for the local authority was Jack Anderson.
The judgment can be read here: R (L,M, and P, v Devon County Council [2022] EWHC 493 (Admin)
