Secondary transfer EHCP deadline - Q&A

We answer frequently asked questions on this deadline, process and appeals.

What is the 15 February deadline?  

Local Authorities must issue Final Amended EHCPs for children who are due to transition to a secondary school placement in September 2023, by 15 February 2023.

Why is the 15 February deadline so important?

This deadline is important for a number of reasons. It will confirm what secondary school placement the child 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 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 15 February deadline?

The 15 February 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 is quicker than the Local Government and Social Care Ombudsman would consider a complaint.  Due to pressures on the First-tier Tribunal (Special Educational Needs and Disability), it is crucial that secondary transfer EHCPs are issued no later than 15 February, and if not, that the Local Authority is promptly challenged for this failure. This is to avoid delays in obtaining a right of appeal against the Final EHCP, should you be unhappy with the contents of the Final EHCP or school named.

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, you are given a right of appeal to the First-tier Tribunal (Special Educational Needs and Disability). You can use this to appeal the description of your child’s educational needs, the provision to meet their 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 challenging this.

What is the deadline to appeal to the First-tier Tribunal (Special Educational Needs and Disability)?

With secondary transition appeals, we strongly recommend an appeal is issued promptly. The Tribunal will try and deal with secondary transition appeals so the Hearings take place before September. However, they do not hear cases in August, and we are aware of pressures on the Tribunal that could mean they are unable to list all secondary transfer appeals for a Hearing date, before the end of the academic year. As there is a risk that not all appeals will be heard before September and by issuing your appeal promptly on receipt of the Final Amended EHCP, you 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 secondary 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 education@hcbgroup.com