Judgment in R (L, M and P) v Devon County Council promises to reduce uncertainty surrounding the amendment process for EHCPs

Posted: 11/03/2022

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The case of R (L, M and P) v Devon County Council [2022] EWHC 493 (Admin) has been decided by the High Court and judgment was issued on 8 March 2022. This landmark case finally provides some clarity about the process of amending an education, health and care plan (EHCP) following annual review.

EHCPs must be reviewed by the local authority every 12 months, as a minimum. It is important that these reviews happen correctly, to make sure the EHCP remains up to date and contains all necessary special educational provision for a child or young person, and that the educational placement is still suitable. 

This has long been an area of difficulty and uncertainty for families. Previously, local authorities were to issue a decision letter advising if any amendments were to be made to a child or young person’s EHCP within four weeks of the annual review meeting. If amendments were proposed, then the local authority would simply issue an amended draft EHCP at some point, but there was no fixed timeframe for this, and subsequently it has often been a source of lengthy delays. This has resulted in some children and young people having a delay to much needed additional support, or being out of education entirely until the EHCP is amended.

The High Court found that there is a fixed timeframe for local authorities in England to complete annual reviews of EHCPs, with the judgment confirming the following timeline (the wording in bold confirms the outcome of the decision):

• Annual review meeting is held.
• Within two weeks of the annual review meeting the school or college must send a report to the local authority, and everyone invited to the meeting. The report must set out recommendations on any amendments required to the EHCP.
• Within four weeks of the annual review meeting, the local authority must send a letter to the parents or carer notifying them whether or not it intends to amend the EHCP, maintain the EHCP as it is, or cease to maintain it. When the EHCP is to be amended, the local authority must include a draft amended EHCP.
• Where the EHCP is to be amended, the parents/carers or young person will be given 15 days to provide comments on the draft amended EHCP.
• The final amended EHCP must be issued within 12 weeks of the annual review meeting.

It is important that parents and carers are aware of this legal clarification, as well as schools, so that they can chase a local authority if the above timeline is not followed. This is not optional on local authorities; this is the law they must all follow.

Victoria Federico, senior associate specialising in special educational needs law, comments: “This is truly a landmark case for parents of children with EHCPs, and provides some much needed certainty for EHCPs being amended following an annual review. It gives parents the ability to hold the local authority to account where there are delays, and to ensure their children are not without any necessary amended support and provision, and it will hopefully avoid children being out of education unnecessarily due to delays in the annual review process.”

If you are a parent or carer, or supporting a family having difficulty or delay with the annual review process, or any other issue with an EHCP then do get in touch with our expert team today.

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