Q:
Annual Review during the appeal process
We're currently appealing Section B and F of my son's EHCP and have our hearing date in Apr. My son's AR meeting took place on Dec and I'm currently awaiting the outcome of this.
My understanding is that the AR process is the same if we are in the appeal process or not? However, the LA have stated that:
'...since this matter is currently subject to live appeal proceedings, the appeal process takes precedence over the annual review. The Local Authority will address the requested amendments through the Annual Review within the context of the live appeal and using the working document.'.
They seem to be implying that we'll just continue with a Working Document, rather than issuing a new EHCP. I am going to ask for further clarification about this, however I wanted to ask some advice, so that I can ensure that I know the law around ARs before getting back to them.
Many thanks,
Sofia
A: SenseCheck
- 0 Yes
- 1 No
- 0 Other
- 08 Jan 2025
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No
Simple
Dear Ms Huguet,
I must respectfully disagree with your representation of the local authority's position (which I am not suggesting is inaccurate); I believe your understanding is accurate. This is why I have answered NO to the LA's position.
Section 44(1) of the Children and Families Act 2014 stipulates:
A local authority must review an EHC plan that it maintains— (a) in the period of 12 months starting with the date on which the plan was first made,
and (b) in each subsequent period of 12 months starting with the date on which the plan was last reviewed under this section.
The review process is detailed in the The Special Educational Needs and Disability Regulations 2014., varying depending on whether the child or young person is enrolled in a school or another institution, or not.
In your situation, it appears a review meeting has occurred. The local authority has four weeks to notify you of the review's outcome, which could be to amend the EHC plan, maintain it without changes, or cease to maintain it. If they decide to amend the EHC plan, they have a maximum of eight weeks from the date of notification to issue the amended plan. These are statutory deadlines and must be strictly observed.
If a new plan is issued before the appeal hearing date, you may either withdraw the appeal if satisfied with the revised EHC plan or use the new plan as the basis for the (new) working document.
For clarity, the review process is not suspended pending the outcome of any appeal; it is unclear why one might assume otherwise.
As noted in the 'Noddy Guide':
04.035 Does the LA have to review an EHCP?
It is worth noting that overlapping reviews/ appeals were less likely when the First-tier Tribunal's appeal process took approximately three and a half months. With the current extended timelines, such overlaps are not uncommon.
I trust this helps clarify the situation. When corresponding with the local authority, you may wish to inquire about the legal basis for their stance; I would be interested in their response.
Sean Kennedy
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