Plugging the Annual Review process pitfalls

In late 2019, Emma Grimbly (Education Paralegal) was working on numerous cases whereby Devon County Council were neglecting their duties to issue an Annual Review Decision Notice within the required 4-week period and neglecting to issue the proposed amended EHC plan. These cases were of significance because they pertained to placements for the following September. Therefore, the delays caused by the Local Authority, and the likelihood that the Local Authority would not name the parental preference for placement, meant we had to do something.

Identifying these cases, we uncovered a nationwide inconsistency in the way Local Authorities interpreted the law relating to Annual Reviews and what appeared to be an inherent gap in statutory timeframes provided for issuing the proposed amended EHC plan. We had cases where Local Authorities had taken over six months and, in some cases, five years to issue proposed amended EHC plans, post-Annual Review. Without a final amended EHC plan, there was no way these families would obtain a right of appeal and thus have a tribunal decision in time for a September placement. So, if the Local Authority did not agree to the parental preference for placement, the children were seriously prejudiced.

The question went back to the SEN Regulations and the flawed interpretation of the statutory duties on Local Authorities by Local Authorities. We also realised that this apparent gap was leading to children and young people having decisions made about their futures based on EHC plans which were significantly out of date. In one case, the EHC plan was for a Post-16 placement, yet the plan still referred to ‘year 1’ and ‘primary school’ with advice and information not updated since 2014! In practice, the system was inherently flawed, and we needed to seek to rectify this by obtaining a precedent that would clarify the interpretation of the Local Authority’s duties. A precedent that parents could rely on when challenging the ongoing failures of Local Authorities to ensure plans are updated accordingly and in a timely manner and provisions, such as placement, are decided either by agreement with the Local Authority or by a tribunal.

So, what was the process? Firstly, we knew we had to issue pre-action protocol letters against the Local Authorities. One of the first hurdles we faced was that the Local Authority would simply ‘roll over’ for any parent that challenged them. Effectively, Local Authorities were playing ‘chicken’ with children and young people’s annual reviews. If you challenged the Local Authority and sent a pre-action letter, you were able to obtain a proposed amended EHC plan (following the issue of the pre-action letter). If you did not issue a pre-action letter, your child or young person’s EHC plan would remain out of date and flawed.

Emma liaised with Keith Lomax (Watkins Solicitors), a solicitor who specialises in Judicial Review and began the process of pursuing this through the Judicial Review proceedings. We located cases and brought a combined claim against the Local Authority under the remit of Judicial Review. Our aim was to obtain clarity and confirmation of our reading of the statutory provisions: that the proposed amended EHC plan must be issued at the same time as the decision notice to ensure the process is lawful. We could not accept that there were time limits for every other aspect of the EHCP process, yet no time limit for issuing a draft amended plan following an annual review. It just did not make sense.

An earlier judgment in the High Court had ruled that because Devon County Council had remedied each claimant’s situation by issuing a final amended plan after the issue of the pre-action letter, and before the court hearing, the case was ‘academic’ in that there was nothing left for the courts to decide. Keith Lomax argued and successfully obtained permission to appeal to the Court of Appeal for a judgment to confirm what the law says about how councils must approach the timescales for updating EHC plans for children and young people. The Court of Appeal ruled on 16 March 2021 that the Judicial Review challenge against Devon CC brought by Keith Lomax (with counsel, Steve Broach and Alice Irving) concerning statutory timescales when amending EHCP following annual review is to go back to High Court. It is expected that the hearing will be held by the end of May.

In amongst all this, we still have Local Authorities questioning pre-action protocol letters that challenge their failure to provide decision letters within four weeks of the Annual Review together with draft amendments to EHC plans. Local Authorities continue to delay issuing draft amended plans as if there was no statutory time limit. Therefore we knew we needed to keep going.

This issue will now go back to the High Court because we believe the judgment of the first court was wrong not to rule on the statutory construction argument, i.e. the interpretation of the law as to timeframes for issuing amended EHC plans post Annual Reviews. The High Court will now need to make a statutory construction point and clarify the position, which we hope will fall in line with our understanding of the regulations.

On discussing these proceedings, Emma Grimbly said: 

“I think the work of Watkins Solicitors, Keith Lomax and I demonstrates the importance of identifying the similarities in these cases and not being afraid to seek scrutiny of the law by pursuing legal remedies where children and young people are not having their special needs provision kept up to date due to Local Authorities exploiting possible loopholes at their expense.

“We continue to see cases where EHC plans have not been amended from 2016 or when they were transferred from SEN Statement to EHC plans, and cases where the Local Authority has never obtained updated advice. Whatever the outcome of the Judicial Review case, there is no dispute that amended EHC Plans need to be issued within a reasonable timeframe - so if you think the delay is unreasonable and has impacted upon your child or young person, please seek advice ASAP.”

What next?

If you have had an annual review and have not received the decision notice or proposed amended EHC plan, you need to seek urgent legal advice to remedy this. With this judgment, it is hoped that we will be able to overturn cases far quicker, at the pre-action stage. Ultimately, we hope that it will make Local Authorities reconsider their approach and demand from the government the financial support that is needed to eliminate discrimination against disabled young people.

Please contact us to find out how we can help on 0117 939 0350 or email eg@watkinssolicitors.co.uk. Watkins Solicitors has offices in Southville and Fishponds in Bristol, and Bath City Centre.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.