Oxfordshire Director of Legal

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Schools please note - annual reviews

Good preparation is key to the successful delivery of annual reviews of EHC Plans, writes Hayley Mason.

As you will know, where a child/young person is in receipt of an Education, Health and Care (EHC) Plan, it must be reviewed annually by the Local Authority. The first review must be held within 12 months of the plan being finalised and subsequent reviews within 12 months of the previous review.

Emergency Annual Reviews can be carried out sooner (where a substantial change in circumstances require).

In preparation for an annual review:

  1. The relevant local authority must consult with the child/young person’s parent(s) (or young person directly) and the school/institution attended, about the EHC Plan;
  2. Information must be gathered from the young person, parent(s) and relevant professionals and circulated (ordinarily by the school) two weeks before the annual review meeting; and
  3. An annual review meeting must take place to discuss the EHC Plan.

What always surprises me however, is how many schools (particularly specialist schools) prepare the annual review paperwork with great enthusiasm and intent but at a detrimental cost to the parent(s) of the child/young person in receipt of an EHC Plan, or the young person themselves.

There are two common errors:

  1. The annual review papers are overly positive. For example, “Johnny has really progressed in his speech and language and has achieved all of his outcomes” and/or;
  2. The annual review papers clearly document progress but fail to explain what provision is actually being put in place to achieve such progress. Further, the papers are silent on what progress the child/ young person can go on to achieve.

Point 2 is particularly pertinent for specialist schools. These specialist settings (often because they are exactly that – ‘specialist’) where it is standard practice for teachers to be trained and experienced in autism/dyslexia, or to have on-site speech and language/occupational therapy, or a multi-disciplinary team, fail to adequately set out the provision they provide.

Taking the above sentence as an example, if one of my client’s had given me ‘Johnny’s’ paperwork to review’ I would expect the above sentence to accurately read:

“As a result of one hour of direct speech and language therapy delivered once per week by the on-site speech and language therapist, Johnny has really progressed in his speech and language. He has been attending social communication skills groups, with a maximum of 4 pupils on a twice weekly basis in order to achieve his current social communication and interaction outcomes. As a result of this continued work, next term Johnny will work towards…. [insert relevant outcome here].”

So why is it so important to get the information correct?

After the annual review meeting, the local authority will review the EHC Plan (and all of the evidence) and must notify the parent(s) of the child/young person within four weeks of the meeting:

  1. Whether they will be leaving the EHC Plan as it is;
  2. Whether they will be amending the EHC Plan; or
  3. That they are ceasing to maintain the EHC Plan.

A local authority can only ‘cease to maintain’ an EHC Plan where it is no longer necessary for it to be in place. This should be happening in very few cases and only where the child/young person has achieved all of their educational outcomes.

Whichever decision the local authority makes, either 1, 2, or 3 above, this decision will provide the child/young person’s parent(s)/young person with a right of appeal to the SEND Tribunal.

If the level of detail (described above) is missing from the annual review papers however, I am seeing a sharp rise in the number of local authorities coming to the (in fact sensible) conclusion of 'why should we continue to fund this EHC Plan?' In their view, without any support being put in place, Johnny has progressed, he has met his outcomes and he does not have any further outcomes to achieve? This will inevitably lead to either a reduction in provision or withdrawal of provision entirely.

The local authority may decide that if all progress has been made, a specialist setting is no longer necessary and ‘Johnny’s’ needs can instead be met in a mainstream setting. This is often the complete opposite of the child/young person’s parent(s) or the young person themselves' wishes, or what the school/provision consider's 'Johnny' needs - which is often to remain at the same setting with the level of provision specified in Section F of their EHC Plan, but this is just not conveyed in the paperwork.

I do recognise that due to time and budget constraints also often a lack of co-operation, putting these papers together can be cumbersome for a school/institution. If the child/young person’s parent(s) have legal representation, you may wish to ask them to look through the paperwork for you, before they are circulated to ensure all of the relevant information is contained in the first instance to avoid any unnecessary delays/misunderstandings. A legal representative experienced in this field will often know the school’s provision well and will be able to pick up on missing information.

For example a typical discussion might go:

Legal Rep: “How did Johnny progress so well with his speech and language?”…

“Through one hour of direct speech and language therapy delivered once per week by the on-site speech and language therapist, and attending social communication skills groups, with a maximum of 4 pupils on a twice weekly basis”…”

Legal Rep: “ok, so why doesn’t the papers say that? – put it in”

I know schools are often stretched for time and resources but please do not let a lack of preparation cost you a place in either your educational provision (and the funds that come with that) or the parent/young person an appeal. With correct preparation, annual reviews can often run smoothly without requiring parents to appeal to the SEND Tribunal and have the effect of securing their current provision/placement for another year.

Good preparation now will pay dividends later. Revisit that latest annual review, is your input up to scratch? If not, now is the time to correct it.

Hayley Mason is a Director and Senior Solicitor at SEN Legal.