Annual Review of an Education, Health and Care Plan

February 3, 2022

Once a Local Authority issues an Education, Health and Care Plan for a child or young person the LA must maintain it and also secure the Special Educational Provision specified in the EHCP for the child or young person.

Section 44 (1) of the Children and Families Act 2014 states that a Local Authority must review an Education Health and Care Plan that it maintains: –

• in the period of 12 months starting with the date on which the EHCP was first made, and
• in each subsequent period of 12 months starting with the date on which the EHCP was last reviewed.

It is important to check when your child’s EHCP was first issued or when the last Annual Review meeting took place to ensure that the EHCP is reviewed annually in line with the relevant legislation and that the description of your child’s Special Educational Needs and the quantified Special Educational Provision specified continues to be appropriate.

The SEN and Disability Code of Practice 2015 – also sets out guidance that local authorities should consider reviewing an EHCP for a child under 5 years of age at least every 3 to 6 months and these reviews should complement the duty to carry out a review at least annually.

The SEN and Disability Regulations 2014 (as amended) are relevant because they set out details of process required to conduct an Annual Review including what actions must be taken and what information must be sought to properly complete an Annual Review.  These regulations also set out the process and timescales whereby the LA gives notice of its decision following an Annual Review and sets out the process for amending an EHCP following an A/R.

At least 2 weeks’ notice of the Annual Review meeting must be given.  Information must be obtained and circulated, the following should be invited to attend the meeting:

1. the child’s parent/s or the young person,
2. the headteacher or principal
3. an LA officer who exercises SEN functions
4. a health care professional identified to provide advice
5. an LA officer who exercises social services functions in relation to the child

Within 2 weeks of the meeting the school (or the LA if the child/young person does not attend a school or institution) must circulate the Annual Review report including the recommendations of the A/R meeting and all the advice and information gathered for the A/R process.

Within 4 weeks of the Annual Review meeting the LA must make a decision and give notice to the child’s parent/young person as to whether the LA proposes to:

1. continue to maintain the EHCP as currently worded;
2. amend the EHCP; or
3. cease to maintain the EHCP

The LA’s decision sets out above concludes the Annual Review process.

When giving notice of a decision to either maintain an EHCP in its current form or to cease to maintain an ECHP the LA must provide certain information in the decision letter to the Child’s parent/young person as follows:

1. a) that the decision has created a right of appeal to the SEND Tribunal,
2. b) the time limit for lodging an appeal,
3. c) information about Mediation,

d)information about disagreement resolution services.

SEN and Disability Code of Practice 2015 – sets out the guidance which a local authority should have regard to.  The Code states that where a LA gives notice of its intention to amend an EHCP following an Annual Review the Authority should start the process “without delay.”

When amending an EHCP the LA must: –

1. send a copy of the proposed amendments to the child’s parent/young person,
2. inform the child’s parent/young person that they have 15 days to make representations on the draft amended EHCP, request a meeting with an LA officer to discuss the document and to request a particular school is named in Section I of the EHCP when it is finalised.
3. Issue a Final EHCP within 8 weeks of the proposed amended EHCP being issued.

The child’s parent /young person over 16 years of age will have a right of appeal when the Final Amended EHCP is issued.

We are finding that LA’s often take too long to complete Annual Reviews and do not comply with the deadlines above.  In many cases Annual Reviews have not been held or have never been concluded and a common difficulty faced by parents is where the amendment process is delayed.  Any of these delays and omissions has the effect of preventing a parent or young person being able to appeal to the SEND Tribunal and parents find themselves unable to move forward.

If you have concerns about the way in which your local authority has conducted an Annual Review or even failed to conduct or conclude an Annual Review please do get in touch with Imelda Brennan in our Education department who will be able to advise what action you can take, such as sending a Pre-Action Protocol letter before initiating Judicial Review proceedings against the LA for its failure to comply with it statutory duties in relation to the Annual Review process.