Education, health and care plans

School children iStock 000006736409XSmall 146x219LexisPSL Local Government, in partnership with Anita Chopra and Chris Barnett of Match Solicitors set out a checklist for moving children from statements to the new regime of education, health and care plans.

The transitional arrangements are set out in the Children and Families Act 2014 (Transitional and Saving Provisions) (No 2) Order 2014 (SI 2014/2270) (CFA 2014 Transitional Order SI 2014/2270), as amended. The CFA 2014 Transitional Order SI 2014/2270 provides for a deadline of 1 April 2018 by which all transitions should be completed, but also for a number of mandatory circumstances where a local authority must arrange for a transition earlier.

Non-statutory guidance, ‘Transition to the New 0 to 25 Special Educational Needs and Disability System’ (the guidance), has been produced by the Department for Education to assist local authorities in discharging these obligations. The guidance is available Transition to the New 0 to 25 Special Educational Needs and Disability System.

Circumstances requiring transition

  • The main provisions are set out in CFA 2014 Transitional Order SI 2014/2270, Pt 5 and apply to children who:

– immediately before the commencement date (1 September 2014), had a statement of special educational needs maintained for them under the Education Act 1996 (EA 1996), and

– any children for whom a statement comes to be maintained after 1 September 2014

  • For the purposes of Part 5, an EHC needs assessment (assessment) is completed when either the local authority sends out a final EHCP or notifies the parents or young person that they have decided that an EHCP is not necessary
  • Children who are expected to transfer to a post-16 institution in 2015 must have an assessment concluded by 31 May 2015
  • For children who are in Year 6 in the school years beginning in September 2015 and September 2016 and who did not transfer from middle to secondary school when they entered year 6, the local authority must consult the child and their parents about whether to carry out an assessment in that year and decide whether or not to do so. If an assessment is undertaken, it must be completed before the end of the relevant year (CFA 2014 Transitional Order SI 2014/2270, art 13). Although under article 13 the decision as to whether to assess is left to the local authority, a child in Year 6 will often also fall under article 14 (if they are transferring from primary to secondary school at the end of the year), so that the local authority may be required to carry out an assessment under that provision, regardless of their decision under article 13
  • Any child who is expected to transfer to a different phase of education during 2016 or 2017 (unless covered by article 12) must have an assessment completed by February 155 February in the year of transfer (unless they are transferring to a post-16 institution, in which case the deadline is 31 March in the year of transfer) (CFA 2014 Transitional Order SI 2014/2270, arts 14(3)(a) and (b)). The CFA 2014 Transitional Order SI 2014/2270 refers to children who are ‘expected’ to transfer—it is, therefore, not necessary for a transfer to be inevitable and in relation to transfers between mainstream and special schools, for example, it is unlikely that that will ever be the position. Accordingly, where such a transfer is a realistic possibility it would be advisable for a local authority to undertake an assessment
  • For the purposes of article 14, a child transfers to a different phase of education if they move:

- from relevant early years education to school

- from infant to junior school

- from primary to middle school

- from primary to secondary school

- from middle to secondary school

- from school to a post-16 institution

- from mainstream school to special school

- from special school to mainstream school (CFA 2014 Transitional Order SI 2014/2270, art 14(5))

Most of these transfers will take place at predictable times, based on a child’s age, and usually will take effect from September in the year of transfer, but that will not always be the case. In particular:

  • transfers between mainstream and special school, in either direction, could in principle arise at any time
  • transfers from early years education to school may also not happen from September, some children will start at primary school in January
  • transfer from school to post-16 institutions may not necessarily arise once a pupil turns 16—if they remain in a school into sixth form then they may not be expected to move to a post-16 institution until they are 17 or 18, or even 19, and so local authorities will need to consider carefully each year whether a duty arises for each pupil who is over 16
  • Any child who comes to be in Year 9 during 2016 or 2017 must have an assessment concluded before they begin Year 10 (CFA 2014 Transitional Order SI 2014/2270, art 14(3)(c))
  • Any child who does not fall within article 12 or article 14(3)—ie any child who does not have to have an assessment sooner—must have an assessment completed for them by 1 April 2018 (CFA 2014 Transitional Order SI 2014/2270, art 14(5)). In accordance with paragraphs 4.5-4.8 of the guidance, local authorities should develop, publish and keep under review a local transition plan, setting out details of the order in which children will be transitioned into the new system, including those for whom transition is not mandatory before 1 April 2018. In accordance with general public law principles, the local authority should then follow the timescales in that plan for those who are not subject to any mandatory transfer, unless there is a good reason not to
  • Any child who becomes subject to CFA 2014 Transitional Order SI 2014/2270, Pt 5 after 1 April 2018 (or at a time when it is not practicable to complete an assessment before that date) must have an assessment completed for them as soon as reasonably practicable after Part 5 begins to apply to them (CFA 2014 Transitional Order SI 2014/2270, art 17)
  • Other than in relation to children covered by CFA 2014 Transitional Order SI 2014/2270, arts 12 and 13, a local authority may secure an assessment for any child earlier than required by article 14 (CFA 2014 Transitional Order SI 2014/2270, art 15)
  • There are two general exceptions to the time limits above:

- if exceptional personal circumstances affect the child or their parent such that it is inappropriate to carry out an assessment, CFA 2014 Transitional Order SI 2014/2270, arts 12–15 do not apply and the local authority must secure an assessment for the child as soon as reasonably practicable after it becomes appropriate to do so

- if a parent has appealed to the First-tier Tribunal under EA 1996, s 326 or EA 1996, Sch 27, para 8 and the appeal has not been fully determined, CFA 2014 Transitional Order SI 2014/2270, arts 12–15 do not apply and the local authority must secure an assessment for the child as soon as reasonably practicable after the appeal is fully determined

‘fully determined’ means that a decision is made by a tribunal or court on the appeal and that all periods for seeking a review or seeking to appeal the decision have expired without a review or appeal being sought

- an appeal is, therefore, not fully determined if a further appeal (to the Upper Tribunal) is being pursued. In JD v South Tyneside Council [2016] UKUT 9 (AAC), an appeal against a decision of the First-tier Tribunal regarding a child’s Statement, the Upper Tribunal Judge (Mr E. Mitchell) recorded his view that article 16(3) would still apply either after completion of the Upper Tribunal proceedings or indeed, after the completion of a re-hearing in the First-tier Tribunal if (as in the event happened) the Upper Tribunal upheld the appeal and remitted the case

  • where, on or after 1 September 2014, the local authority:

- is considering or receives, a request for re-assessment under EA 1996, s 323

- is carrying out but has not completed, a re-assessment underEA 1996, s 323, or

- is ordered, on an appeal under EA 1996, s 328(4) or s 329A(8), to carry out an assessment under EA 1996, s 323

they may carry out a re-assessment under section 44 of the Children and Families Act 2014 (CFA 2014) instead, but only with the consent of the child’s parent or young person. Following that assessment the local authority would decide whether to issue an EHCP or cease to maintain the statement (CFA 2014 Transitional Order SI 2014/2270, arts 23–25)

  • Where a local authority decides, after 1 September 2014, to cease to maintain a statement and an appeal is brought against that decision, then if as a result of the appeal the local authority is ordered to maintain the statement, the local authority may (with the agreement of the child’s parent or the young person) determine that the statement is to have effect as an EHCP specifying the educational provision specified in the statement (CFA 2014 Transitional Order SI 2014/2270, art 26(6))
  • CFA 2014 Transitional Order SI 2014/2270, Pt 17 and art 14A apply to children and young people who have a Statement and who are detained. Local authorities may carry out an assessment for a detained person at any time until 1 April 2018 (CFA 2014 Transitional Order SI 2014/2270, article 31) and must carry out an assessment as soon as possible following their release from detention (CFA 2014 Transitional Order SI 2014/2270, art 14A)
  • CFA 2014 Transitional Order SI 2014/2270, Pt 6 relates to transition arrangements for young people who had learning difficulty assessments under the Learning and Skills Act 2000 prior to the commencement of the CFA 2014

Overview of assessment procedure under the order

  • The local authority must give notice of the assessment to the child’s parents or the young person, and their educational provider, no later than two weeks prior to the start of the assessment (CFA 2014 Transitional Order SI 2014/2270, art 18)
  • The assessment is then carried out in accordance with the CFA 2014 and the Special Educational Needs Regulations 2014 and the guidance (which refers to assessments as ‘transfer reviews’): for more details see Practice Note: Special educational needs in England under the Children and Families Act 2014
  • The local authority must then either:

- Inform the child’s parents or the young person that they have decided not to make an EHC Plan within 14 weeks of the start of the assessment (CFA 2014 Transitional Order SI 2014/2270, art 22), or

- Send a final EHC Plan to the child’s parents or the young person within 18 weeks of the start of the assessment (CFA 2014 Transitional Order SI 2014/2270, art 21)

This checklist - prepared in partnership with Anita Chopra and Chris Barnett of Match Solicitors – was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.