New school, new phase, new EHCP? EHCP phase transfers explained

In this article Lacie Smith, Senior Paralegal, explains the legal framework surrounding EHCP phase transfers and the critical deadlines local authorities must follow when a child moves between stages of education.

What is a phase transfer in education?

A phase transfer happens when a child or young person moves from one stage of education to another. The main phase transfers are early years to primary school, primary school to secondary school and secondary school to post-16 education. If your child has an EHCP, these stages are particularly important. For children with EHCPs, the local authority must review and amend the EHCP to name an appropriate placement for the next phase of education.

EHCP phase transfer legal deadlines for local authorities

The law sets out strict deadlines for local authorities to make and notify parents of their decisions regarding placement during a phase transfer year. There are two critical statutory deadlines:

• 15th February – This deadline is for children transferring into primary or secondary school, the LA must issue the final EHCP, naming the placement and/or type of placement for September.
• 31st March – This deadline is for children transferring to post-16 education, the LA must issue the final EHCP, naming the post-16 placement and/or type of placement.

By these deadlines the LA should confirm whether it is amending the EHCP, issue a final EHCP, and clearly name the school or college and/or type of placement that the child will attend from September. If this has not happened, the LA may be acting unlawfully.

Annual reviews during an EHCP phase transfer year

The LA must still adhere to the EHCP review process during a phase transfer. Therefore, in order to meet the above deadlines, an annual review should have taken place in the autumn term, or earlier, even if the annual review was not due at that time. This is to ensure that the LA has time to review the EHCP, send a draft EHCP to parents, allow parents 15 days to propose amendments to the draft (including setting out your parental preference of placement), allow time for the LA to send consultations to placements and issue the final EHCP before the deadline.

Delays and common problems with EHCP phase transfers

Unfortunately, delays are common. Parents sometimes find that the deadline passes with no final EHCP or ongoing consultations that are not resolved. Where this happens, the LA will sometimes issue a final amended EHCP just naming a type of placement in Section I but not naming an actual school or college. This leaves uncertainty for the coming school year for parents and children.

Missed EHCP deadlines and judicial review

Where the LA fails to issue a final EHCP by the statutory deadline, this can give rise to public law remedies, including judicial review. These cases need to be dealt with urgently, as time is critical in securing a suitable placement. If you have not received a final EHCP by 15th February or 31st March during a phase transfer year or if you have received a final EHCP with type only but not a named school or college, it is important to seek advice promptly.

Appealing an EHCP placement decision to the SEND Tribunal

If a final EHCP is issued on time but parents disagree with the school or college named (or with the type of placement), parents will have a right of appeal to the First-tier Tribunal (Special Educational Needs and Disability). An appeal can challenge the school or college named in the EHCP, or that no school or college is named, and the type of placement specified but it can also challenge other parts of the EHCP such as needs and provision.

Outdated EHCPs and the need for review at phase transfer

It is common for an EHCP to remain unmodified throughout primary school or secondary school, so once phase transfer comes around it may be significantly out of date and not provide a proper picture of the child. The description of your child’s needs and provision necessary to meet these needs are what ultimately inform the type of placement required. This means that the EHCP may need an overhaul in order to ensure it appropriately reflects your child.

Legal advice on EHCP phase transfer disputes

Phase transfer disputes can feel overwhelming, particularly when deadlines are tight and decisions affect a child’s future education. Early legal advice can help parents understand whether a local authority has acted lawfully, what options are available if deadlines are missed and whether a Tribunal appeal may be appropriate. Our team regularly advises parents on phase transfers, including delays in issuing EHCPs and disputes about school or college placements.

Support with EHCP delays and placement challenges

If you have not received a final EHCP by the relevant deadlines, or if you are unhappy with the placement decision that has been made, we can discuss your situation and explain the next steps available to you. Please contact us at sennewenquiries@boyesturner.com.