EHCP annual reviews - how to manage the process noting delays

What is the function of an Annual Review?

Annual Reviews are a central pillar that supports the maintenance of Education, Health and Care (EHC) Plans. The Annual Review of an EHCP must be completed within 12 months of the Plan being issued, or from the date of the previous Review. For children under 5 years old, the Plans should be reviewed more frequently.

Why are Annual Reviews important?

They offer a range of benefits for the child/young person, including the opportunity for dated aspects of the Plan to be discussed and amended. For example, the special educational needs (SEN) set out in Section B can be reviewed to determine whether the needs of the child remain correct, or whether these require updating. This in turn leads to the provision outlined in Section F, and discussions to determine whether they need amending to reflect the Section B needs. Furthermore, Section I can also be considered and requests for a new type of setting or the setting itself, should the current placement be deemed unsuitable, or new information or evidence has been shared addressing this. This time is also ideal to make sure the wishes of the parents/young person are up to date and noted in Section A; although Section A is not legally binding, it provides important information regarding the child and families’ thoughts and aspirations. Finally, the Annual Review provides the opportunity to review and amend Section E, should the outcomes be deemed outdated.

LAs’ responsibilities

Local Authorities (LA) have various time restraints regarding the planning of the meeting and the issuing of the outcome. The latter is important, as it triggers the young person or parents’ right to appeal the LA’s decision.

If the LA does not adhere to the statutory timeframes, the case of R (on the application of L and others) v Devon County Council [2022] EWHC 493 (Admin) may be of use which addresses this point of law. The Devon case offers clarity to the Annual Review process; in particular, the High Court concluded there was a fixed timetable to be followed by LAs. This includes any amended EHCP to be finalised within 12 weeks of the Review date. Therefore, the Annual Review process should take no longer than 2 to 3 months from arranging the meeting, to the LA’s decision being issued.

EHCPs and LAs' current situation

However, despite clear timelines setting out the obligations the LA are legally required to adhere to, families across England are experiencing significant delays, sometimes up to a year or more, when attempting to secure an Annual Review and, crucially, a decision following this. This would in turn infringe upon the next Annual Review period and could result in the EHCP becoming outdated. Many LAs cite reasoning such as staff shortages for the delay. However, there are no legal reasons that justify a delay when holding, and issuing a decision following, an Annual Review. When potential amendments are being proposed to an EHCP, as happened in L, R (On the application of) v Hampshire County Council [2024] EWHC 1928, the LA must create a contingency plan to accommodate for any staff shortages and avoid any unnecessary delays.

Our view remains that the Annual Review process offers many benefits for parents of children, or a young person, with an EHCP, as well as being a legal requirement with clear statutory timelines to adhere to and LAs must be held accountable to ensure they perform their duties in line with the legislation. Should the LA fail to comply with the legislation, there are options available to the parents / young person including official complaints and judicial review.

We recommend getting specialist legal advice if you have a query around EHCP Annual Reviews. The Boyes Turner Education Team can be contacted on 0118 467 6547 or via senexpertsolicitors@boyesturner.com.