Council delays are impacting children with special educational needs, lawyers warn

Education lawyers say many local authorities are missing the phase transfer deadline

The number of children with special educational needs who are facing a disruption in their education because of Councils missing the ‘Phase Transfer’ deadline is increasing, leading education lawyers have warned.

The official ‘Phase Transfer’ deadline - the date by which local councils must issue the updated Education, Health and Care Plan (EHCP) for children who have them – falls annually on February 15th.

The deadline is important, because it makes sure that the child has the right provision in place to meet their needs, and that families have plenty of time to prepare for the transition, or to appeal the decision if they are not happy with it.

However, according to education lawyers at Simpson Millar many councils regularly miss the deadline, with data obtained by the firm as part of a freedom of information request showing that in 2019 alone 81 local authorities in England who responded reported delays. Accurate updated data has been difficult to ascertain.

The total figure for delays at the time amounted to 10% of the total number of children in England with an EHCP in place; a worrying 1,644 (out of 16,460) pupils.

Furthermore, the lawyers say that families who do choose to challenge a Local Authority’s decision over their child’s Education and Health Care Plan (EHCP) could experience serious delays before a Special Educational Needs and Disability (SEND) Tribunal takes place due to backlogs in the court. This could be more problematic this year than ever before.

While all of these cases involve children whose parents have raised concerns that the education, they are receiving is not adequate or suitable, in some more extreme cases the children or young people involved are currently missing out on any education.

Sarah Woosey, a specialist education lawyer at Simpson Millar, said: “The Phase Transfer deadline is in place for a very important reason. The notification itself confirms the placement the child should attend from the following September, and while February and September seem far away from each other, the five month lead time allows enough time for transition work to be completed to suit the needs of the child or young person.

“It also makes sure that there’s enough time to appeal the placement and contents of the EHCP, and for that appeal to be heard in the First-Tier Tribunal (Special Educational Needs and Disability) - more commonly known as the SEND Tribunal.

“For that reason, delays can be extremely stressful for the families affected. They will no doubt be anxious about which school they have been allocated, but also worried about the limited time that they have to appeal the decision if they are unhappy.

“If a local authority has not yet reviewed a plan or you get to 15th February and no decision is received then it’s really important that families do seek legal advice as it may be that judicial review proceedings (or the threat of such proceedings) are needed.”

Sarah goes on to explain that the number of families appealing the placement and contents of the EHCP is at a record high, as Local Authorities continue to make bad decisions – placing, or proposing to place, children or young people in schools that don’t meet their needs. This is in addition to disputes over whether to even assess the needs of children who are struggling and appeals over whether EHCPs are required in the first place.

“The reality is that the SEND Tribunal are the busiest they have ever been,” Sarah adds. “Partly that is driven by the number of cases that are going to appeal because the local authority has not properly considered the needs of the child or young person when allocating a school place. There also appears to be an increasing issue of demand outweighing supply of specialist school places.

“Current appeals are already being listed for hearing a year after the appeals have been lodged and, as a result, we are very concerned about whether the Tribunal will have capacity to deal with all of the phase transfer appeals before the start of the new term.

“The Tribunal always run these appeals on a shorter timetable but if they do not manage to resolve them all before the summer, then children will not necessarily have suitable placements to attend in September, and there could be delays in them starting secondary school which is completely unacceptable.

“This is the Tribunal’s busiest time of the year and our concern relates to how they will manage their busiest time of year, in their busiest year yet. Despite Tribunal staff working around the clock, the recruitment of many new judges and the flexibility offered by remote hearings, the delays still prove difficult for families.

“To add to their worries, we know that these appeals are very difficult for parents and that there are limited funding options available. There is some good news on that front however as my team has recently been involved in a case which has successfully widened the scope for representation for legal aid in these types of appeals.

“While this doesn’t help with the delays, it does mean more people can reach out for proper representation and assistance with ensuring their children receive suitable education.

“Ultimately, families need to know that they are not alone. There is help out there, and if you need assistance with your child’s education appeal, please do speak to an Education Lawyer. We’re experts in Tribunal appeals, and we’re often available short notice to take action and get things moving forward for you.

“The most important message at this point in time is not to panic but also not to delay. The sooner you get things moving, the sooner these appeals will be resolved. I cannot emphasise enough how quickly September will come about.”