In a landmark judgment issued today (8 March 2022) the High Court has made it clear that every local council must keep to fixed legal time limits when reviewing the needs of children and young people with special educational needs.

Councils have been asserting that there is no fixed time limit, allowing them to delay updating EHC plans, leaving many children in limbo, and out of school, for months. This change will have a monumental impact on the whole annual review process going forward. The change means that councils must stick to strict timetables so that no child is lost within the annual review process.

The judgment has settled an argument with Devon County Council that will have significant benefit for all children and young people with special educational needs.

But it is not just Devon. The common practise of delay in updating Education, Health, and Care Plans of children with special educational needs and disabilities must stop.

The claim was a Judicial Review brought by three young children, issued in the High Court in April 2020. An initial hearing in August 2020 decided the matter was academic, as the council had caught up with issuing amended EHC plans for these children long before the court hearing. But the Court of Appeal decided it was not academic and sent it back to the High Court which heard the case again on 30 April 2021.

“This judgment has been a long time coming, but so worth waiting for,” commented Dr Keith Lomax, solicitor with Watkins Solicitors, who conducted the case for the claimants throughout.

“Councils prosecute parents for failing to ensure their children attend school and argue that every day matters. Yet they regularly delay for months in their duty to make sure children with special educational needs get the provision they must have.

“Children end up out of school for months. Mental health gets worse. Parents struggle to get suitable school placements. All because the council has delayed updating the EHC plans.

“This judgment is a wake-up call to local authorities across the country, that have been using what was seen as a loophole in the regulations to delay updating the EHCP plans and provision for children with SEND. Amending a young person’s EHCP must be done within 12 weeks of the annual review,” said Keith. “This will also affect parents exercising their right of appeal to the First-tier Tribunal to get suitable school placements in good time.”

EHC plans are the mechanism by which children and young people up to the age of 25 years who have special educational needs and/or disabilities, have them appropriately met by provision secured by the local authority.  The authority has responsibility for monitoring the special education provision secured, including an annual review, and future planning for each EHC plan. 

A strict timetable exists for many of the steps in the EHC plans process, and this case concerned the question of whether there is also a fixed timeframe as to steps in the amendment of an EHC plan where a local authority accepts it needs amending during the compulsory statutory annual review. 

Like many local authorities, Devon took the view that there was no strict timetable to amend an EHC plan after annual review.  In the judicial review -  R (L, M, and P), v Devon County Council  [2022] EWHC 493 (Admin) – this interpretation of the SEND Regulations was challenged.

By 4 weeks after an annual review, the local authority must issue a notice stating its intention whether to amend an EHC plan, or to maintain it unchanged, or to cease it. When it is to be amended the local authority issues a draft amended plan. There is then time for parental response to it before the amended plan is made final.

The final amended plan must be issued within 8 weeks of sending out the draft plan. Councils have been deciding for themselves when to issue the draft plan.

The court judgment confirms that the draft amended plan must be issued within 4 weeks of the annual review. The final amended plan must be issued within 12 weeks of the annual review.

Councils will also need to act promptly when preparing for annual reviews. Updating information should be sent out two weeks beforehand. If they comply with the law at that stage, then they will be better placed to comply with the time limits throughout the process.

The Honourable Mrs Justice Foster DBE, in her judgment issued on 8 March 2022, recognised the difficulties that local authorities face:

“The court is not without sympathy for the resource-led arguments of a local authority, however, the whole of the scheme could be described as resource heavy, and time dependent.  That is a clear deduction from the statutory framework, the Regulations and the Code.  It is clear that there is throughout this legislation a tension between timing and available resources.  That inheres as a result of Parliament’s choices, it cannot condition what in my judgement is the clear meaning of the statutory instrument in question.”

The judge, was clear:

“The perceived absence of a time limit for notifying amendments has in my judgement, allowed the defendant County Council to act inconsistently with the statutory objective, which must be understood as including the time sensitive determination of the developing requirements of children and young people with special educational needs.”

The long-standing issue of delay in getting EHC plans amended was raised by Emma Grimbly, of Watkins Solicitors’ education department. The claim on behalf of 3 children was then conducted by solicitor Keith Lomax. Counsel for the claimants were Steve Broach and Alice Irving. Counsel for the local authority was Jack Anderson.

The judgment can be read here:  R (L,M, and P, v Devon County Council [2022] EWHC 493 (Admin)