Education Law Solicitors

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What to do about that Statement that shouldn’t exist

The Children and Families Act 2014 introduced Education Health and Care Plans (EHCPs). The plan was that EHCPs would replace the system of Statement of Special Educational Needs in England.

Along with the Act, a number of transition orders and guidance documents were issued to explain how the old system would move into the new system. For young people identified with special educational needs after 1 September 2014, the answer was straightforward; they went directly into the new system of Assess, Plan, Do, Review and EHCPs. For those with a Statement of Special Educational Needs a statutory instrument was written to explain how Statements would convert to EHCPs.

The guidance, and the statutory instruments, all made one thing very clear. By 31 March 2018, Statements of Special Educational Needs should not exist. Over the past four years, it became increasingly clear that local authorities were not going to be able to meet the deadline. The DfE even asked local authorities to stop reporting to them about the conversion rates as it became increasingly obvious that the deadline was going to be missed. This was despite the best efforts of local authorities, some even ignoring the majority (all) of the rules about the conversion process.

As recognition that the 31 March 2018 deadline was going to be missed, new provisions were introduced to indicate that after 31 March 2018, the Special Educational Provision in a Statement of Special Educational Needs should be treated “as if” it were actually in an EHCP.

This then raised the question of whether a Statement could be appealed after 31 March 2018.

The First Tier Tribunal (Health Education and Social Care Chamber) – also known as the Special Educational needs and Disability Tribunal (SENDIST) – has issued guidance relating to how to appeal if your child currently still has a Statement of Special Educational Need (SSEN), despite the questionable legal basis of it.

he First Tier Tribunal (Health Education and Social Care Chamber) has issued guidance detailing how any appeal in relation to a SSEN held after the 1st April 2018 will be dealt with and has confirmed that the CFA (2014) will be applied to these appeals, the result is the following changes:

Any appeal involving a child over statutory school age will be dealt with as the child being the appellant, rather than the parent
Any appeal involving a child over 18 years will result in the Tribunal identifying provision beyond 19 years if necessary
Rights of appeal involving Part 2 (description of need), Part 3 (provision) and Part 4 (placement) will now be dealt with in accordance with S51 CFA (2014) relating to content
Any decision by the Tribunal made after 3rd April 2018 will be eligible for registration under the National Trial where there are issues relating to health and social care needs and provision

The Tribunal will not have the power to direct that the Local Authority transfer the SSEN into an EHCP. However, the CFA (2014) does state that a Local Authority should carry out an EHC assessment as soon as reasonably practicable after the appeal is concluded.

As specialist education solicitors, we are fully aware that Local Authorities have failed in their duty to comply with the CFA (2014) resulting in many children and young people still waiting to have their SSEN transferred to an EHCP. It is very common for us to assist parents with cases where the child needs to have an EHC assessment under the new rules to ensure that all health and social care needs and provision or provision beyond 19 years is secured.

If you have a child that still has a SSEN and you need to appeal any decision in relation to this or are just looking for advice on how the changes in the new legislation will apply or affect the illegal SSEN then please do not hesitate to contact our specialist team of education solicitors on 03332 027175.

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