Q:
Can Section A only be amended at annual review? I have just successfully appealed Sections B, F and I of my child’s EHCP at Tribunal. The Tribunal ...
Can Section A only be amended at annual review? I have just successfully appealed Sections B, F and I of my child’s EHCP at Tribunal. The Tribunal has ordered the LA to amend Sections B and F. The LA is in the process of doing so. My question is whether the LA is precluded in law from making the amendments I have requested to Section A at the same time?
The LA has said it can only do what the Tribunal has ordered it do it and that I will have to wait a year for an annual review to ask for amendments to Section A. My understanding is that as Section A can’t be appealed and does not come within the jurisdiction of the Tribunal, there is nothing in law to preclude the LA from making amendments to Section A now - when they are working on the EHCP to amend Sections B and F. Is this right?
I know I may be wasting my time arguing a point of principle here, but it feels an important one as the Draft EHCP was very poorly drafted and didn’t even include the full views my daughter had written out herself nor the full information she had given to the LA’s Ed Psych as part of a sentence completion activity. I therefore felt that in not including them in Section A her voice had been ignored, which was contrary to the whole principle of the Code of Practice. I have been asking for these amendments since the poorly written Draft was issued.
The LA ignored my requests to make the amendments during the exchange of working documents and has now come back with a ‘No’ and an email saying, ‘This can be amended following a future annual review. Legally [we] must stick to the working document and what the Tribunal have ordered us to amend.’ This feels unnecessarily unreasonable but is there anything in law to support their point?
Any advice gratefully received. Thank you.
A: SenseCheck
- 0 Yes
- 2 No
- 0 Other
- 24 Aug 2022
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No
Simple
It looks as if your appeal is concluded, and the question relates specifically to the powers of the Tribunal in relation to ordering amendments. It is assumed that the Tribunal were asked to make the preferred parental amendment to section A during the proceedings. Reg 43(2) The Special Educational Needs and Disability Regulations 2014 clarifies the powers of the Tribunal. 43(2)(f) states the Tribunal has the power to:
order the local authority to continue to maintain the EHC Plan with amendments where the appeal is made under section 51(2)(c) or (e) so far as that relates to either the assessment of special educational needs or the special educational provision and make any other consequential [emphasis added] amendments as the First-tier Tribunal thinks fit;
The discretion is therefore broad (see para 85 S v Worcestershire County Council (SEN) [2017] UKUT 0092 (AAC)) which addresses amendments ordered to section E (a non appealable section), but I am not aware of any caselaw specifically relating to section A). LB Hillingdon v SS and others (SEN) [2017] UKUT 0250 (AAC) also repeats this.
With regards to the LA, Reg 28 The Special Educational Needs and Disability Regulations 2014 gives them discretion to amend an EHCp outside of the review process.
If, at any time [emphasis added] , a local authority proposes to amend an EHC plan, it shall proceed as if the proposed amendment were an amendment proposed after a review.
Sean Kennedy
Talem Law - 17 Aug 2022
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No
Complex
As long as the Local Authority issues an amended EHCP that comp[lies with the Tribunal order it will not be in breach of Regulation 44, Special Educational Needs and Disability Regulations 2014. This regulation does not specifically preclude the Local Authority making amendments to Section A, but it would likely need to give you a 15 day comment period by issuing a draft amended EHCP. The Local Authority can amend the EHCP at any time, including outside of the 12 monthly annual review process. However, the Local Authority must issue an amended EHCP within 5 weeks of the order being made to comply with Regulation 44.
From the information you have provided it certainly sounds unreasonable for the Local Authority not to include the requested amendments to Section A, particularly the views of your daughter and as you say this goes against the whole ethos behind the legal framework and the requirement for Section A to include the "views, interests and aspirations of the child". You could raise a complaint higher up within the Local Authority, potentially referring to the Local Government and Social Care Ombudsman if not dealt with in a satisfactory manner (this is not a quick process though).
You may also wish to take further specific legally based advice regarding the 'unreasonable' point.
Victoria Federico
SEN Solicitor, Russell Cooke Solicitors
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Comment