Top ranked special educational needs solicitors
Children and young people may transition between several stages of education:
- early years provider to school
- infant school to junior school
- primary school to middle school
- primary school to secondary school
- middle school to secondary school
- secondary school to post-16 institution
Pupils with an Education, Health and Care Plan (EHCP) are not subject to the usual admissions process at these times. Instead, the local authority must review the EHCP and issue an amended Plan naming the new placement by 15 February, or 31 March for transfer from a secondary school to a post-16 institution.
The LA must conduct a ‘transition review’ when the child or young person is transferring from one stage of education to another. This is to ensure the EHCP accurately describes the child or young person’s needs and provides the support they will require in their next placement. It also gives the child or young person and their parents an opportunity to raise any concerns they may have.
The process and timescales for EHCP reviews are outlined in the SEND Regulations 2014. Taking these into account, the review meeting should be early in the autumn term - ideally no later than October. Parents must be given at least two weeks’ notice of the meeting date.
The person arranging the meeting must request advice and information about the pupil from parents, the school, the local authority, and healthcare and social services professionals (if appropriate). For the transfer review, it’s also a good idea to have updated assessments from therapists or specialist teachers working with the pupil. All information gathered must be circulated to parents and other attendees at least two weeks before the meeting.
At the meeting the pupil, parents, school, local authority representative, and other professionals (if attending) will discuss the EHCP and the type of setting the pupil would like to move to. If a particular setting has been identified by the parents or young person as their preferred placement, this should be noted. The school will prepare a report of the meeting and the requested EHCP amendments for the local authority.
The local authority must confirm its intention to amend the EHCP within four weeks of the review meeting, and has a further eight weeks to issue the final EHCP. If all parties agree that the EHCP is up to date, the only change is to the named placement, and the local authority is advised of the parents’ preference, then a final amended Plan can be issued fairly quickly.
However, if any other part of the EHCP is to be amended, the local authority must send a draft version to the parents and allow them at least 15 days to return their comments. A draft EHCP cannot name a placement, so section I will be left blank; typically the local authority will ask parents to indicate their preference when returning their comments. Most parents will have identified a particular placement they feel is suitable, but may otherwise request a type of institution and update the local authority later. The local authority must consult the parents’ preferred placement, and will also approach others that may be suitable, before issuing the final amended Plan.
The Children and Families Act gives parents the right to request placement at:
- a maintained school or nursery
- an Academy
- a non-maintained special school
- an institution approved by the Secretary of State under section 41 (often known as a s.41 independent school)
- a further education institution in England
If parents request a place at one of these types of institution, the local authority must name it in the EHCP unless one of the exceptions set out in the Children and Families Act 2014 applies. The Act stipulates a local authority may only refuse to name the parents’ preference if that placement is unsuitable for the age, ability, aptitude or SEN of the pupil; or because the attendance of the child or young person there would be incompatible with the provision of efficient education for others or efficient use of resources. The LA cannot refuse a placement simply because it is ‘full’.
There is a presumption that pupils will be educated in mainstream unless this is against the parents’ wishes. An EHCP has the effect of making a mainstream placement suitable, and so the LA may only refuse if placing the child or young person there would be incompatible with the education of other pupils and there are no reasonable steps that it or the governing body, proprietor or principal could take to prevent the incompatibility.
If the parents’ preferred placement is an independent school or college which is not approved by the secretary of state under s.41, the cost of the placement will be taken into consideration and weighed against any suitable alternative. The LA (and SEND Tribunal) cannot name a non-s41 school in the EHCP if the school does not offer a place (for example, if it says it is full), in the same way that it can for a s41 school.
Parents disagreeing with the placement named in the EHCP are strongly advised to prepare well for transition reviews and appeal to tribunal as soon as possible, or matters may not be concluded before the pupil is due to transfer to their next placement. If you would like to speak to one of our team please call 0118 467 6547.
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