Q:
I am moving local authorities (Havering to Surrey) but am due to go to tribunal beginning of May on a refusal to issue. We now have got our address in ...
I am moving local authorities (Havering to Surrey) but am due to go to tribunal beginning of May on a refusal to issue. We now have got our address in Surrey but are continuing to maintain our house in Havering whilst we pursue the EHCP. I am concerned about transferring our case over to Surrey at this late stage in proceedings.
If I do, can Surrey apply to change the tribunal dates, apply for extra time to gather new evidence or in any other way delay the process, i.e. could they argue that they need to conduct their own assessments and extend the process?
I am also considering having a WP discussion with the head of the LA to request if she will consider issuing an EHCP with EOTAS. This is due to the fact that I know one of the reasons she agreed to my younger son’s EHCP was on the assumption that we would be leaving Havering and no longer be a financial burden to her. I could explain to her that we have not gone back on our word but that we would like to complete the EHCP process before we sell our house in Havering.
Finally, if Havering agree to issue before tribunal, could Surrey then seek to amend the provision contained in the EHCP (I will be requesting EOTAS with a view to a SEN provision in the future) when I transfer it? Thank you for taking the time to read these questions - any input would be most gratefully received.
A: SenseCheck
- 1 Yes
- 0 No
- 0 Other
- 31 Jan 2023
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Yes
Other
There are quite a few issues here and I look forward to reading any additional contributions. Further, this is just guidance, but it may assist.
Firstly, it is important to be clear which LA is responsible for a child. This is found in section 24 CFA 2014:
https://www.legislation.gov.uk/ukpga/2014/6/section/24/enacted
Whilst this often clear, sometimes it is not.
The following case JG & Anor v Kent County Council & Ors [2016] EWHC 1102 (Admin), [2016] ELR 396
https://www.bailii.org/ew/cases/EWHC/Admin/2016/1102.html
clarified that a LA is responsible for a child or young person only if they live in their area permanently – again this can be tricky to determine but intuitively most people are likely to have and understanding what this means. It is very important to be transparent about this.
If during an appeal to the First-tier Tribunal (Special Educational Needs and Disability) it became necessary to substitute the name of the LA as the result of a child or young person moving to the area of another authority - Rule 9 allows this
One can reasonably assume that new directions would be given to allow the “replacement authority” to participate in the appeal. As a party, the new authority would also be able to make requests to the Tribunal.
It would be open to any parent or young person in this situation to withdraw an appeal and then, when the move to the new authority has taken place, make a request to assess education, health and care needs in accordance with s36 CFA2014
https://www.legislation.gov.uk/ukpga/2014/6/section/36/enacted
The Noddy guide provides comprehensive coverage of such requests,
Reg 15 the Special Educations Needs and Disability Regulations 2014 addresses what happens when a child or young person with an EHCp moves outside an “authority’s area” into the area of another authority
https://www.legislation.gov.uk/uksi/2014/1530/regulation/15/made
These should be read in full but this situation is summarised in the Noddy Guide. In summary the new authority must confirm that the EHC plan has been transferred, and whether it proposes to carry out an assessment or review of the EHCP within 6 weeks.
Sean Kennedy
Talem Law
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