Q:
Annual Review and appeal
We have an ongoing issue with the LA not adhering to the legislations in regard to my son's Annual Review. We are currently appealing Section B and F and whilst the LA have confirmed that they will amend his EHCP, then have stated that they have no intention of actually issuing an amended EHCP.
Quote from the LA:
'The statutory guidance for Annual Reviews does not prescribe a specific template for issuing a Local Authority proposed EHCP – there simply is not a temptlate for EHCP’s therefore utilising working document to replace the amended proposal should not disadvantage your son'
They have refused to give me a legal basis for this, instead stating:
'I must respectfully clarify that the Local Authority, as the respondent in this appeal, is not in a position to provide further legal justification or interpretative guidance to the appellant. If further clarification on legislative matters is required, we would kindly suggest seeking independent legal advice or advocacy to support your understanding of the statutory framework.'
My understanding was that a Working Document is used for communicating changes during an appeal and therefore it is isn't appropriate to suggest this as a replacement/alternative?
Given that our hearing is in early April, I'm not sure if we have any options in terms of a Pre-Action letter/Judicial Review? Would it be better to concentrate on preparing for the appeal and bring up there what the LA have done? I have already submitted all of our AR meeting minutes etc... as evidence to SENDIST, so they will know that at least part of the AR has taken place.
Thanks,
Sofia
A: SenseCheck
- 0 Yes
- 0 No
- 1 Other
- 09 Jan 2025
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Other
Simple
Too fact specific, I can't generalise.:
Sophia,
May I politely suggest that you make the LA aware of the Special Educational Needs and Disability Regulations 2014.
In accordance with Regulation 20(10) (assuming you child is in school), the LA has four weeks to notify you of the outcome of the review. Given that the outcome was to amend the EHCP, Regulation 22(3) stipulates that you should receive the finalised amended EHCP as soon as practicable and, in any event, within eight weeks of the notification to amend. Therefore, the period between the review meeting and the receipt of the finalised EHCP should be no more than 12 weeks. These timescales must be adhered to and are not subject to a "best efforts" approach. This was confirmed in the case of
R (L, M, and P) v Devon County Council [2022] EWHC 493 (Admin)
The process of reviewing an EHCP is not suspended due to any matter currently before the First-tier Tribunal (FtT).
May I suggest that you consider pursuing a judicial review of the Local Authority's (LA) actions, or alternatively, submitting a formal complaint using the LA's complaints procedure? Additionally, you may wish to bring this matter to the attention of the Tribunal.
A more sceptical observer might suggest that the LA’s behaviour is designed to effectively deprive you of another right to appeal to the FtT. I, of course, could not possibly comment on that. It may well be that the LA need a more precise explanation of the legal framework and the above may assist.
I trust this information is helpful.
Sean Kennedy
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