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The timescales governing the EHCP process.
Local Authorities are not meeting their statutory deadlines for assessing a child’s special educational needs, and thereafter if agreed, issuing Education, Health and Care Plans (‘EHCP’). A recent BBC Report into Local Authorities missed deadlines for supporting children with special educational needs has cast light on the current complex picture that Local Authorities are simply struggling to meet the rising demand for support.
An EHCP should be put in place to support a child with special educational needs whose educational needs, cannot be met without an EHCP, for example because their needs cannot be met from the resources ordinarily available to a mainstream school. The EHCP will identify the child’s particular needs, and set out what additional support should be put in place to cater to those needs. Examples of additional support may be 1:1 support in the classroom or the provision of small class sizes.
If Local Authorities agree to issue an EHCP, they have a legal time limit of twenty weeks to issue one, from the date a parent, school, or professional request for an Education, Health and Care Needs Assessment is received. Following the initial request, Local Authorities have six weeks to determine whether or not to assess the child from the date of the request. If they refuse to assess then your route is to appeal to the SEN Tribunal against that decision. Be aware however that you only have a two-month window to appeal to the Tribunal, so we recommend submitting appeals promptly.
If the Local Authority agree that the child’s needs meet the threshold for an assessment, it will gather information from the child (if appropriate), the child’s school, parents, and any relevant professionals involved with the child to inform its decision-making as to whether an EHCP should be issued for the child. Parents should be notified of this decision within sixteen weeks of the date the Local Authority received the initial request for an assessment. The Local Authority must send a draft plan to parents, if it has agreed to issue a plan, and provide them with 15 days to provide their comments on the draft and to express a preference of placement. By week twenty, Local Authorities must complete all stages and have issued the final EHCP where agreed. There are a few limited exceptions to the statutory timescales, and unless an exception were to apply, these timescales are indisputable. Despite this, too many families in England are struggling to access help for their children as a result of continuous and unjustifiable delays caused by Local Authorities with this process. Unfortunately, it is not uncommon for the timescales and their respective requirements not to be complied with which adds to an already stressful and difficult process for parents, whose children require special educational provision to be secured as soon as possible to enable learning and encourage academic progress.
In an article produced by the BBC in May 2024, a Freedom of Information request made to 152 Local Education Authorities across England found the following troubling statistics:
- At least 12 Local Authorities are completing EHCP assessments within the twenty-week limit in fewer than 10% of cases.
- Of those 8, Local Authorities are issuing plans within the timeframe in fewer than 5% of cases.
When queried what was behind such delays, it was submitted by multiple Local Authorities that requests for an EHCP have increased significantly since the Coronavirus pandemic, and staff shortages mean that Local Authorities simply cannot keep up with the requests. Another contributing factor was identified to be a shortage of Educational Psychologists, whose advice must form part of the EHCP assessment process. Many parents are unaware, however, that such reasons do not discharge a Local Authority’s statutory responsibility to complete the process within the relevant timescales. As such, many parents are unaware of what routes of challenge are available to pursue.
If your Local Authority fails to adhere to the above-mentioned timescales, 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 lawyer on which of these would be more appropriate in your case. Accordingly, if you are in the process of obtaining an EHCP for your child, and are currently encountering unexplained delays, our specialist education lawyers can assist with providing you with advice in respect of the steps that should be taken and the obligations of the Local Authority during this process.
If you have any questions regarding the EHCP process, or are concerned that your Local Authority is not following statutory obligations or deadlines in general, please contact our specialist education team on 0333 202 7175 or email education@hcbgroup.com