Introduction – Phase transfer

The law states that an education, health and care plan (EHCP) must be reviewed ahead of a child moving between key phases of education to allow for planning and preparation for transition and provision in the new educational setting. The key transfers are:

• early years provider to school
• infant school to junior school
• primary school to middle school
• primary school to secondary school and
• middle school to secondary school

The deadline for EHCPs to have been reviewed, amended (where necessary), finalised, and issued for the above phase transfers is 15 February. For those who have not yet received their amended plan, it can be an anxious wait until then.  

The above deadline and associated timescales mean that reviews for these phase transfers should have commenced in the Autumn term. Therefore, those children undergoing a phase transfer in September 2023 should have undergone a review of their EHCP by now, and some may have already received an amended EHCP naming placement from September 2023 in Section I.

Phase Transfer from Secondary School to a Post-16 Institution

For transfers for young people from secondary school to a post-16 institution or apprenticeship in 2023, 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 must take this into account and review and amend the EHCP at least five months before the transfer takes place.

The Review Process

The review for phase transfers should follow the process of a usual annual review. It must focus on the child or young person’s progress towards achieving the outcomes listed in Section E of the EHCP. The review process should also:

• review the effectiveness of any special educational provision made for the child or young person
• where applicable, review the health and social care provision made for the child or young person
• consider the continuing appropriateness of the EHCP in light of the child’s progress, and consider whether any changes are required to outcomes, provision, educational establishment, and whether the EHCP plan should be discontinued

Reviews must be undertaken in collaboration with the child and their parents, and the local authority must also cooperate with professionals.

The local authority should notify the child and their parents of its decision within four weeks of the review meeting (and within 12 months of the previous review or date of issue of the EHCP plan).

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 local authority’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 to lodge the appeal. Before doing so, and where your appeal includes Sections B and F of the EHCP, you must obtain a mediation certificate. This can be accessed using the contact details provided on the letter from the local authority enclosing the final EHCP. 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 transition in September and the tribunal may well 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 transferring schools and the local authority has not yet arranged a review, you should contact your local authority representative as soon as possible to arrange this as the local authority is in breach of its statutory duty.

You have a right to complain to the local authority if they have not issued an amended EHCP following review by 15 February or otherwise may consider a public law remedy arising from the Judicial Review process.

Contact

If you would like advice or assistance in relation to the above, please contact Senior Associate, Polly Kerr, who leads the Education team at Tees, on 01763 295854 or by email at polly.kerr@teeslaw.com.

Tees is here to help

We have many specialist lawyers who are based in:

Cambridgeshire: Cambridge
Essex: Brentwood, Chelmsford, and Saffron Walden
Hertfordshire: Bishop's Stortford and Royston

But we can help you wherever you are in England and Wales.