High Court issues council ‘wake-up call’ on special needs delays

Children were waiting over a year for their care plans to be updated

Children were waiting over a year for their care plans to be updated

Children with special needs should not have to wait more than three months for changes to their care plans, the High Court has ruled.

Dr Keith Lomax, who represented three children in the case against Devon county council, said the judgment was a “wake-up call” to local authorities.

Some take more than a year to implement changes – such as moving schools to get more support – after annual reviews of education, health and care plans (EHCPs). Delays can cause a child to miss the start of the academic year.

Devon had argued there was no strict timetable to amend the children’s plan after their review.

This judgment is a wake-up call to local authorities across the country

However, lawyers acting on behalf of the children said current requirements meant parents should receive the proposed changes within four weeks of the review and have a final plan issued within 12 weeks. 

Lomax, from Watkins Solicitors, said: “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.”

The Special Educational Needs and Disability Regulations 2014 state local authorities must issue parents a notice over intentions to amend, cease or continue with an EHCP within four weeks of an annual review.

The legal dispute was over whether the proposed amendments should also be sent at the same time.

Regulations allow a further eight weeks for the finalised plan to be issued – which is when parents have a right to appeal.

Council acted ‘inconsistently’

Devon claimed “no specified time constraint” applied to sending the draft amendments out, instead claiming they only had to show “their intention to propose amendments”.

But Lomax said: “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.”

Judge Justice Alison Foster ruled the 12 week timescale was “wholly consistent with the structure of the scheme”.

She added: “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.”

Lomax called the ruling 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 EHC plans and provision for children with SEND”.

No data is published on annual review processes. But from next year, the SEN census will make it mandatory for councils to supply data on when they notify parents over EHCP changes.

Ali Fiddy, chief executive of the SEND legal advice charity IPSEA, said it was “far from uncommon for this process to drag on and on”. Parents are sometimes waiting “a year or more”.

“As a result of this ruling, parents can now go to their local authority and state confidently that a final amended EHCP must be issued within 12 weeks of the annual review meeting.

“This will make a huge difference to children and young people getting the support they need.”

A Devon County Council spokesperson said they “fully accept” the judgment.

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