Are we nearly there yet?

Full transition to EHCPs to be completed by 31 March 2018

Local Authorities are under a statutory duty to transfer all children and young adults with Statements of Special Educational Needs (SEN) who are eligible for an Education, Health and Care Plan (EHCP) to the new SEND system by 31 March 2018. The transition process should involve detailed assessments (in most cases), a meeting with parents, professionals and the Local Authority (LA) and drafting a new Plan. The process should take no more than 20 weeks. We are now 10 weeks away from the deadline – are LAs nearly there yet?

It is fair to say that Local Authorities are struggling with the transitions. We wrote about some of the problems in June 2017 – DfE Statistics on the SEND reforms – could do better? One year ago, around two-thirds into the timeline for full transition, DfE statistics showed that only 32.7% of Statements in January 2016 were transitioned to EHCPs by January 2017. If adhering to the timeline set out in the Children and Families Act 2014, this figure should have been more like 66%. In January 2017 the DfE said that they would be monitoring the transition process closely through a monthly management information gathering survey. The surveys started in April 2017 and are due to end in April 2018 and are focused purely on progress on the conversion of Statements to EHCPs with a view to targeting resources where needed. Can the DfE tell us how we are doing?

The then Minister of State for Children and Families, Robert Goodwill, wrote to all Local Authorities in September 2017 clarifying the legal position in relation to transition by 31 March 2018. The letter also stated:

‘In the event that any local authority is unable to meet this deadline, the Department will consider what action to take to best ensure that children and young people are not disadvantaged.

It is also important to note that any statement of SEN for which a transfer review has not been completed by 31 March 2018 will continue to remain in force from 1 April 2018, until a transfer review has been completed and a decision is made about future provision. This ensures that children and young people who have statements, for which a review has not been completed by 31 March 2018, do not lose support. For these children and young people, local authorities will remain responsible for ensuring that provision in their statements is met.’

What the law says

From 1 April 2018 the old law in relation to Statements will cease to apply and the new law in relation to EHCPs will apply. So what is the legal standing of Statements after 1 April?

The law provides some protection for children and young adults still with Statements from 1 April 2018. Section 17(4) of the Children and Families Act 2014 (Transitional and Saving Provisions) (No.2) Order 2014 states that the LA must secure an EHC needs assessment ‘as soon as is reasonably practicable’ after 1 April but that any Statements that have not transitioned to EHCPs will continue to have effect as if the provision set out in the Statement were specified in an EHCP. Although the Regulations do not go further and explicitly give equal rights to challenge the content of the Statement via an appeal to the Special Educational Needs and Disability Tribunal, it could be interpreted as giving those rights.