Response to the government’s consultation to increase the time a local authority has to issue draft amendments to an EHC plan following an annual review meeting from four weeks to eight weeks and other proposals, which concluded on 12 August 2022.
1 This response is prepared by Cerebra Legal Entitlements and Problem Solving (LEaP) Project.
2 The LEaP Project is an innovative problem-solving project that helps families of children with brain conditions cope with the legal barriers they face. We listen to families and help them get the knowledge they need to access health, social care and other support services. We identify the common legal problems that prevent families getting access to services and we develop innovative ways of solving those problems. We aim to reach as many families as we can by sharing our solutions as widely as possible.
3 The government is proposing amending the law to allow for the following (1):
i. Extending the time that local authorities have to issue draft amendments to an EHC plan from up to four weeks following the annual review meeting to up to eight weeks following the meeting.
ii. Establishing a two stage process following an annual review meeting. If a local authority proposes to amend an EHC plan, splitting the current two stage process as follows:
• Notify its intention to amend an EHC plan within four weeks of the meeting.
• Issues draft proposals for amending the plan within eight weeks of the meeting.
iii. Extending the time that advice and information must be circulated prior to an annual review meeting from a minimum of two weeks to a minimum of three weeks.
iv. Issuing non-statutory guidance concerning any legislative changes following this consultation.
Reasons for the proposed changes
4 The government provides the following reasons:
i. Prior to a recent high court case, there was a widespread understanding that local authorities had to send draft amendments to EHC plans “without undue delay” following notification of proposal to amend an EC plan (2), but there was no statutory timescale for this step.
ii. The implications of the high court case are likely to be mixed for families. (3)
iii. To ensure proposed amendments to EHC plans are high quality within an achievable timescale.
iv. To mitigate for the growing pressures on local authorities caused by the rise in number of children and young people with EHC plans. (4)
5 We disagree that there was no mandatory timeframe for amending an EHC plan following annual review. It is widely understood that annual reviews must be completed within one year of the previous review. The judge in L, M and P v Devon County Council  EWHC 493 (Admin) stated:
63… It makes a nonsense for there to be suddenly at the crucial stage of promulgating the suggested amendments, no timescale for that.
6 We oppose the proposals to extend the period of time a local authority has to issue draft amendments to an EHC plan following an annual review meeting. We oppose the establishment of a two stage process. We are in favour of increasing the minimum time period for circulating advice and information prior to an annual review meeting from a minimum of two weeks to a minimum of three weeks, though we don’t consider this will make much material difference. These proposals, if enacted, could reduce the speed at which necessary social care provision is put in place, and appear to be primarily driven by a reluctance to properly fund social care and the wider workforce within local authorities. (Reduced funding is an acknowledged goal of the current SEND Review).
7 What is needed is greater funding of children’s social care, not an easing of the regulatory framework.
8 A report by Ofsted (July 2022) called, “Children’s social care 2022: recovering from the COVID-19 pandemic” (5) identifies the following issues following the easing of COVID-19 restrictions:
…there may be delays in identifying vulnerable children and their needs, and families may have fewer opportunities to ask for help. Access to therapeutic and respite services for disabled children continues to be limited, leaving children and families without support.
Some services for disabled children and their families have also yet to return to pre-pandemic levels. This is partly because of persistent fears about the COVID-related risks to these children. Many services for disabled children and their families, such as schools, short-break services and holiday schemes, were closed during the lockdowns. As a result, many disabled children lost around 2 years of therapeutic support, which reduced their progress and, in some cases, resulted in regression. Their families also lost support and respite, which they may have relied on to help them care for their child. Consequently, these children and their families may now need more intensive support – not just a return to pre-pandemic service levels.
It also highlights the longstanding staffing issues and additional problems caused by COVID:
As well as the implications for children, the staff shortage creates significant challenges for the workers who remain in the sector. Workloads are high and the demands of an already challenging job can become unsustainable.
9 The Local Government and Social Care Ombudsman’s Review of Local Government Complaints 2021-2022 (6) reports that 77 per cent of complaints about education or children’s services were upheld, which is the highest uphold rate across its areas of investigation.
10 The SEND Tribunal’s latest statistics (2021-21) show that it is upholding (wholly or in part) 96 per cent of appeals made by parents.
11 An investigation by Special Needs Jungle in December 2019 (7) showed that 69 local authorities of 122 (56 per cent) that replied to an FoI request did not track data on the timeliness of completing annual reviews and of the 53 that did, only three (2.5 per cent) completed all the annual reviews required in the previous year (2018). This demonstrates that local authorities were not meeting the statutory arrangements prior to L, M and P v Devon County Council.  EWHC 493 (Admin). There are no data to suggest that the ability of local authorities to complete reviews in a timely way has improved since then.
12 These facts demonstrate that the system is not working for children and young people with SEND or their families. The government has provided no evidence that extending the timescales for amending plans will positively benefit these children and young people.
13 A review of an EHC plan should include a review or re-assessment of social care provision, because an EHC plan is, among other things, a plan specifying any social care provision required for a child or young person under 18 as a result of Section 2 of the Chronically Sick and Disabled Persons Act 1970 and any social care provision reasonably required (s37 Children and Families Act). We are concerned that extending the time to amend EHC plans may delay putting in place changes to social care provision that have been identified during a review or re-assessment.
14 Working Together to Safeguard Children identifies that the timeliness of assessments is a critical element of the quality of that assessment and the outcomes for the child (8) and that:
where particular needs are identified at any stage of the assessment, social workers should not wait until the assessment reaches a conclusion before commissioning services to support the child and their family. (9)
We are concerned that the proposed changes will be used by local authorities as a reason to delay further putting the appropriate social care provision in place prior to amending an EHC plan.
15 The High Court recently clarified the law. In that judgement (10), the court set out the current timeframe which allows for a local authority to take 12 weeks from the date of an annual review meeting to finalise an EHC plan (11). In the court’s analysis, the overall review process is “front loaded” to accommodate the timescales set out in law. (12) The judge said:
In my judgement the whole context of the EHC plan system is prompt evidence gathering, tight timetables and coexistence with the school curriculum timetable which necessarily runs in terms, forming the academic year. It is no accident that the compulsory review is a 12 monthly exercise. (13)
The judge went on to state, “time is of the essence” (14), that the review scheme is, “highly time sensitive,” (15) and:
The scheme contained within the Act and the Regulations is crafted to ensure the speedy ascertainment and meeting of a child’s needs and provides a timetable at each material stage of important decision-making that ensures a clear framework for the parent or young person who might wish to challenge the relevant decision.
We agree with this view. The government is proposing, via the SEND review, to make appeals to the SEND Tribunal more complex for parents (for example, by requiring mandatory mediation and potentially an additional mandatory review mechanism) prior to being able to appeal. This may mean the time taken for an appeal to be heard would increase. The time taken to get through the Tribunal appeal process is also backlogged, adding to the delay.
These proposals will further delay parents getting their appeals heard, which is an injustice in itself.
(1) p6 Reviews of Education, Health and Care plans: proposed timescales
(2) P8 ibid
(3) P14 ibid
(4) P8 ibid
(8) Para 76 Working Together
(9) Para 83 Working Together
(10) in L, M and P v Devon County Council  EWHC 493 (Admin)
(11) Para 58 https://www.bailii.org/ew/cases/EWHC/Admin/2022/493.pdf
(12) Para 59 ibid
(13) Para 59 ibid
(14) Para 72 ibid
(15) Para 79 ibid