Local Authority - 20 week statutory timescale extension

Can your Local Authority lawfully extend the 20 week statutory timescale to finalise an EHCP?

We have had several calls from parents over the last couple of weeks asking for clarification as to whether their Local Authority can extend the 20 week statutory timescale to finalise an Education Health and Care Plan. This is due to Local Authorities claiming that due to the summer holiday they are not able to complete the process within the statutory timescale.

The answer is yes, they can extend the 20 week timescale, in exceptional cases.

The Special Educational Needs Regulations 2014 s10(4) provide several scenarios where Local Authority’s “need not comply” with the 20 week deadline to finalise an Education, Health and Care Plan if it is “impractical” to do so.
The scenarios are:

“(a)     the authority has requested advice from the head teacher of a school or post16 institution during a period beginning one week before any date on which that school was closed for a continuous period of not less than 4 weeks from that date and ending one week before the date on which it re-opens; 

(b)     the authority has requested advice from the person identified as having responsibility for special educational needs (if any) in relation to, or other person responsible for, a child’s education at a provider of relevant early years education during a period beginning one week before any date on which that provider was closed for a continuous period of not less than 4 weeks from that date and ending one week before the date on which it reopens; 

(c)     exceptional personal circumstances affect the child or the child’s parent, or the young person during that time period ; or 

(d)     the child or the child’s parent, or the young person, are absent from the area of the authority for a continuous period of not less than 4 weeks during that time period”.

Each individual Local Authority are in charge of deciding when to apply an exception to the timescale. The only other guidance on the matter is within the SEND Code of Practice at paragraph 9.43 which states:

“The child’s parent or the young person should be informed if exemptions apply so that they are aware of, and understand, the reason for any delays. Local authorities should aim to keep delays to a minimum and as soon as the conditions that led to an exemption no longer apply the local authority should endeavour to complete the process as quickly as possible. All remaining elements of the process must be completed within their prescribed periods, regardless of whether exemptions have delayed earlier elements”.

Therefore, there is no real indication in the law about how long the Local Authority can extend the 20 week period by however; we can refer to the guidance that the delay must be ‘reasonable’, and realistically should only accommodate the period in which the School/College is closed during the summer holiday. 

If you have been told by your Local Authority that they will not be able to fulfil the 20 week timescale you need to ask whether they have applied the exception criteria as set out in the SEND Regulations 2014 (above), and which exception they have applied. 

If you do not receive a response from the Local Authority or if they cannot identify the exception they are using then please do not hesitate to get in touch with our specialist Education Law team for advice.