Posted: 27th September 2021
Author: Kieran Baker

SEND: ANNUAL REVIEWS – IMPORTANT

holding hands

This time of year seems to be a very busy time for Annual reviews and over the last couple of weeks we have attended several with our clients. It is important that they are held promptly, particularly if your child is coming up to a phase transfer at the end of this academic year. They are also an invaluable tool if the current placement is not working, or you wish to seek a change of placement.

In the current climate of hard pressed Local Authorities (LA’s), rising demand and unprecedented financial constraints not all LA’s are complying with their statutory obligations in respect of the Annual Review (AR) process.

Just as a reminder all LA’s are under an obligation to review your child’s EHCP on an annual basis. Although there are rules in place around the notice that should be given prior to an AR and the steps that the LA should take following an AR these are often overlooked.

The legal position is as follows;

Where a child/young person attends a school or other institution at least two weeks’ notice must be given of the date for a review meeting. The person arranging the review meeting must obtain advice and information and this must be circulated at least two weeks in advance of the review meeting.

Where the young person attends a school, the Headteacher/Principal of the school must prepare a written report within two weeks of the Annual Review Meeting and this must be sent to the child’s parent or the young person.

The Local Authority must consider this report and decide whether it proposes to:

(a) continue to maintain the EHCP in its current form;

(b) amend it;

(c) cease to maintain it

The Local Authority must notify the child’s parent or the young person within four weeks of the review meeting.

In the event that the Local Authority intends to maintain the EHCP in its current format, or alternatively decides to cease to maintain the EHCP, then it must notify the parent or young person of their right to appeal to the Special Educational Needs and Disability Tribunal. (SEND).

The AR process is key as if there is any dispute in respect of the contents of the EHCP or placement then the AR process can provide an opportunity to discuss those issues with the professionals present at the AR meeting and if no agreement is reached will give rise to a right of appeal to SEND. Despite the rules setting out that LA’s must formally respond to parents setting out the action they intend to take (if any) within 4 weeks of the AR meeting this is often overlooked, and we spend a lot of our time chasing LA’s to comply with their obligations. This can leave families in limbo for weeks and often months.

The other difficulty is that LA’s seek to make amendments to EHCP through the AR process but don’t actually get as far as amending the EHCP. The EHCP is a legal document, and the LA are under a statutory obligation to deliver the provision set out in section F. They cannot just agree at the AR meeting that provision is no longer necessary, document this in the minutes of the meeting and then fail to deliver without amending the Plan. Obviously, any amendments to the EHCP give parents a right of appeal to SEND if there is no agreement in respect of the changes.

If you need any help around any of these issues, please do not hesitate to get in touch with us here at the Children’s Legal Practice on 01329 823 322 or by visiting our website https://www.childrenslegalpractice.com/