Introduction – Phase transfer
The law states that ahead of a child moving between key phases of education their Education, Health, and Care Plan (EHCP) must be reviewed and reissued to allow for planning and preparation for transition and provision in the new educational setting.
The phase transfers are:
- early years provider to school
- infant school to junior school
- primary school to middle school
- primary school to secondary school
- middle school to secondary school
- secondary school to a post-16 institution.
The deadline for EHCPs to have been reviewed, amended (where necessary), and issued for most phase transfers is 15 February. For transfers for young people from secondary school to a post-16 institution or apprenticeship, the deadline to review and make any amendments to the EHCP is 31 March.
Where the transfer is taking place at a different time of the year to September, the local authority (LA) must take this into account, review, and amend the EHCP at least five months before the transfer takes place.
For those who have not yet received their amended plan, it can be an anxious wait until then.
The Review Process
The review for phase transfers should follow the process of a usual annual review. Four weeks after the annual review the LA must send the proposed amendments and a draft of the EHCP to the parent or young person. The parent or young person then has at least 15 days to make representations about the proposed amendments/content of the EHCP and to request a particular school is named. The LA must issue the final amended EHCP, with notice of appeal rights which should be included within the decision letter, within eight weeks of the draft. To comply with these statutory deadlines the annual review for all transfers, except those between secondary to post-16 institutions, must have been held by no later than 23 November 2023 and the draft EHCPs issued by 21 December 2023.
Phase Transfer, and particularly the transfer from primary to secondary school, is frequently when it becomes necessary for a child to move from mainstream to specialist provision. This decision, in and of itself, can be daunting but it’s crucial to be aware that you must inform the LA of the type (be that specialist or mainstream) and the name of the school you’d like named in your child’s EHCP. Usually, the venue for these discussions would be the annual review but if one’s not been called you may need to take things into your own hands. The LA must then consult your school of preference and any others they are considering before they name one in the EHCP. Schools must be given 15 days within which to complete the consultation and must have view of the draft EHCP as well.
What if you are not happy with the amended EHCP?
If the local authority has issued a final EHCP and you are unhappy with the special educational needs reflected in Section B, the special educational provision listed in Section F, or the setting named in Section I, you have the right to appeal the LA’s decision in the First Tier Tribunal. You can also ask the tribunal to make non-binding recommendations in respect of health and social care needs and provisions (known as an Extended Tribunal).
You have two calendar months from the date that the LA made their decision to lodge the appeal. Before doing so, where your appeal includes Sections B and F of the EHCP, you must obtain a mediation certificate. The decision letter will include instructions on how to obtain the certificate. Once obtained, you have a further calendar month from the date of the mediation certificate to lodge the appeal. However, you should act quickly once you have received the EHCP because time is of the essence ahead of the transition in September and the tribunal will receive an influx of these appeals at the same time.
If you are only appealing Section I of the EHCP (educational placement) you do not need a mediation certificate.
What should you do if a review has not been carried out?
If your child is a phase transfer and the local authority has not yet arranged a review, the LA is in breach of its statutory duty.
You have a right to complain to the local authority if they have not complied with the statutory deadlines listed. Depending on the circumstances, it may be necessary to consider a public law remedy arising from the Judicial Review process.
Tees are here to help
We have many specialist lawyers who are based in:
But we can help you wherever you are in England and Wales.
Chat to the Author, Polly Kerr
Legal Director, Dispute Resolution and LitigationMeet Polly
- Areas of expertise
Legal 500 UK 2024
'They are incredibly experienced in working with families on appeals to the SEND tribunal, and Polly Kerr is quite simply, outstanding'
Legal 500 UK 2024
'Polly Kerr is a rockstar. Quite aside from her incredibly personable approach to the law and her clients, she’s fundamentally decent, kind, intelligent and passionate'
Legal 500 UK 2024
'They stand head and shoulders above the rest because they take the time to get to know their clients. Polly Kerr embodies all the qualities that makes the team unique. She puts the client at ease with her friendly nature and razor-sharp legal knowledge'
'Polly Kerr - where do you start? She's a rockstar. Quite aside from her incredibly personable approach to the law and her clients, she's fundamentally decent, kind, intelligent and passionate'
Legal 500 UK 2023
'A standout solicitor in this firm is Polly Kerr. Polly manages to quickly gain the trust of the client in every case in which we’ve worked together. Polly is also not afraid to ask questions of local authorities'
'I used Polly from Tees Law regarding a problem I had with my sons school. Polly was great to talk to and very knowledgeable. I cannot recommend highly enough. If I needed to use a Solicitor again this is the firm I would go to'
Legal 500 UK 2021
‘Polly Kerr is very knowledgeable, always helpful, goes the extra mile and good communicator.’
Legal 500 UK 2021
‘Polly Kerr was excellent. She went above and beyond to help us. She really believed in my son’s cause and gave us excellent advice – not just legal, also personal so that we could present our case as effectively as possible.’
Alex and Jenny
We were going the through the most challenging appeal process to secure our daughter’s Education Health and Care Plan provision. Polly put together a coherent working document which the Tribunal agreed almost all of. Our daughter started a new school and we’re thrilled with the outcome.