Local Authority's duty to consult over the summer break

We had an interesting enquiry recently about the local authority’s (LA) duty to seek advice over the summer holidays when it is drafting an Education, Health and Care Plan (EHCP). The enquiry referred to the ‘4-week rule’.

What is the 4-week rule?

This is found under regulation 10(4) of The Special Educational Needs and Disability (SEND) Regulations. Regulation 10 (1) states that, when a LA is making a decision not to issue an EHCP, it must notify parents (or the young person (YP)) within 16 weeks of the LA receiving the initial request for the EHC needs assessment.

Regulation 10 (4) sets out when the LA does not need to comply with the 16 week time limit. In essence, the LA does not have to comply where it is impractical to do so because:

 (a) the authority has requested advice from the head teacher or principal of a school or post-

16 institution during a period beginning one week before any date on which that school or

institution was closed for a continuous period of not less than 4 weeks from that date and

ending one week before the date on which it re-opens;

(b) the authority has requested advice from the person identified as having responsibility for

special educational needs (if any) in relation to, or other person responsible for, a child’s

education at a provider of relevant early years education during a period beginning one

week before any date on which that provider was closed for a continuous period of not

less than 4 weeks from that date and ending one week before the date on which it reopens;

(c) exceptional personal circumstances affect the child or the child’s parent, or the young

person during that time period; or

(d) the child or the child’s parent, or the young person, are absent from the area of the

authority for a continuous period of not less than 4 weeks during that time period.

In our enquiry, parents were concerned that the LA was planning to issue the draft Plan in the holidays which would have meant that parents or the LA would not be able to seek the advice of the school before finalising the Plan i.e. the school would not have the opportunity to read the draft Plan to decide whether or not it can meet the child/YP’s needs and to give to given them the opportunity to iron out any issues.

Our advice

The SEND Regulations do not say that the LA must send the draft Plan to the placement. The LA only needs to send the school/college the final Plan.

The Regulations only require the LA to send the draft Plan to parents/YP and must give parents/YP 15 days to respond. However, what the LA must do is to consult with the school/college named by parents/YP. So, if the draft EHCP is issued at the beginning of the summer holidays, then there may be a delay when the response is sent back to the LA because they may not be able to consult with schools/colleges until the beginning of term. This may mean that they go over the 20 week deadline to issue the final Plan. However, this will not necessarily be a problem if the LA has already consulted with the school.

The sensible approach would be to wait for the school/college’s comments before finalising the Plan but the LA does not have to do this if they are confident that the school/college can meet needs. If parents are keen for the school/college’s input before the Plan is finalised, our advice would be for parents to request that. They can refer to s19 Children and Families Act 2014, namely the LA’s supporting function and the need for the LA to:

  • Consider the views of the child, parents and/or YP
  • Ensure that the child, parents and/or YP are able to participate fully in decisions and
  • Be provided with the information and support necessary to enable them to participate in decisions

Of course, the LA may decide not to take any of this into account and may simply finalise the Plan without sharing the draft Plan with the school/college first, in which case, parents or the YP would have to appeal and/or go to mediation to resolve issues.

We would urge LAs to delay the issue of the final Plan where requested for the above reasons unless there is an urgent need to finalise the Plan before the start of the new term.

I am so happy at the outcome, I don't think we would have had such a comprehensive service from any other law firm, and you took the worry away...I do not regret a single second of the whole process, apart from the bit before you got involved. 

James' mother, Boyes Turner client

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