EHCP phase transfer is the point at which a child or young person moves from one stage of education to another, for example from primary to secondary school or from secondary school to post-16 education. For children with Special Educational Needs and Disabilities (SEND), this is often a particularly important stage, as it is when decisions are made about future support and placement.
At this stage, the Local Authority must review the existing Education, Health and Care Plan (EHCP) and issue an updated version naming the next placement. There are clear legal deadlines for this process, but in practice it does not always run as smoothly as it should, which can leave families unsure where they stand.
Ahead of the child/ young person’s transition, Local Authorities are to hold a Phase Transfer Annual Review meeting and thereafter issue a new EHCP setting out the named placement for the child/young person within Section I of the EHCP. Local Authorities are required to review and, where necessary, amend the EHCP in advance of the transition to ensure that the next placement is appropriate and capable of meeting the child/ young person’s needs. These legal obligations are accompanied by strict deadlines and procedural safeguards intended to provide clarity and stability for families during what can often be an uncertain period. Even though these protections are in place, Phase Transfers can still be very challenging for families who are navigating the SEND system.
Within this blog, we will discuss the concept of Phase Transfers within education law and outlining the relevant legal framework and guidelines.
EHCP Phase Transfer Deadlines
For children/ young people with Education, Health and Care Plans (EHCP’s), Phase Transfers are managed by the legislation set out within the Children and Families Act 2014, the Special Educational Needs and Disability Regulations 2014 as well as the SEND Code if Practice. The legislation sets out duties for Local Authorities to review and amend the EHCP’s before the child moves to the next phase of education.
Typically Local Authorities will hold an Annual Review meeting the Autumn Term before the child/ young person is due to transition into the next key stage of education. Following the Annual Review, the Local Authority must consider whether the current EHCP in place remains appropriate and whether they feel any changes are to be made to reflect the child’s future educational placement. In those cases, Local Authorities must issue an amended EHCP setting out the new placement within Section I, in readiness for the Phase Transfer. Local Authorities have to adhere to the following deadlines:
- For cases where the child/ young person is due to transition from Early Years Setting to Primary or from Primary to Secondary School the deadline for the Local Authority to issue a further EHCP is 15 February, of the year that the child/ young person is due to transition.
- For cases where the child/ young person is due to transition from Secondary to Post 16 Education or further, the deadline for the Local Authority to issue a further EHCP is 31 March, of the year that the child is due to transition.
These deadlines are in place to ensure that the families and the schools have sufficient time to prepare the child/ young person for the transition and where necessary, allow time to pursue an appeal to the Special Educational Needs and Disability Tribunal.
What to Do If You Have Not Received a Final EHCP
Whilst it is the Local Authority’s statutory obligation to provide a further final EHCP, naming a placement in readiness for the child/ young person’s Phase Transfer, there are sometimes cases whereby the Local Authority do not issue a further EHCP in line with their deadlines.
If you do not receive this further final EHCP concerning the child’s Phase Transfer, there is legal action you can take. You can write to the Local Authority Legal Department and issue Pre Action Protocol proceedings against them.
Even if you are already within a Tribunal Appeal concerning the contents of the child’s EHCP, the Local Authority still have a statutory obligation to provide you with a further final EHCP concerning Phase Transfer. You can still take legal action, as advised above, by way of Pre Action Protocol proceedings whilst in an appeal if you do not receive the further Phase Transfer final EHCP in line with the deadlines.
This is something HCB Solicitors can assist with, please get in touch if you require further advice in this area.
What to Do If You Are Already in an Appeal
When issuing you with the Phase Transfer final EHCP, the Local Authority should provide you with a cover letter enclosing this new EHCP. This cover letter provides you with the right to appeal the contents of this new EHCP to the Tribunal and should provide details of the mediation company used by the Local Authority.
Even if you may already be in an appeal to the Tribunal in relation to the contents of the previous EHCP, you will need to ensure that procedurally you are appealing against the most recent EHCP issued for your child. This does not mean that you have to withdraw your original appeal. Instead, you will need to write to the Tribunal essentially ‘lodging’ a new appeal and asking that both appeals be merged together as one, following one timetable. This means that a further appeal form will need to be submitted alongside a further mediation certificate. The new appeal will be registered as a separate appeal, but thereafter the Tribunal should issue an Order outlining out that both appeals are merged and setting out the new timetable for the remainder of the appeal.
We often assist with these matters and will be able to help ensure that your appeal and Phase Transfer appeal are consolidated, please contact us if you would like further advice in this regard or would like to instruct us to assist.
What to Do If You Disagree With the School Named
Parents have the opportunity to request a specific school/ institution to be named within Section I of the EHCP in readiness for Phase Transfer. The law requires Local Authorities to consider parental preference on placement unless one of the specific legal exceptions apply. These legal exceptions are; placement being unsuitable for the child’s needs, placement being incompatible with the efficient education of others or placement being inefficient use of resources/ unreasonable public expenditure.
If you are unhappy with the contents of this EHCP, specifically Sections B, F and I, then you can lodge an appeal to the Tribunal setting out these issues. If this is in relation to the child/ young person’s Phase Transfer, you will need to ensure that this is made known when lodging your appeal to the Tribunal as Phase Transfer appeals often have an expedited timetable. This means that Phase Transfer appeals usually have a shorter Tribunal timetable, a close Evidence Deadline and Hearing Date. The Tribunal tries to ensure that the Hearing date (in Phase Transfer appeals) are scheduled for before the child transitions in the upcoming September. However, due to the high number of appeals received, this is not usually possible with all Phase Transfer appeals.
A successful Phase Transfer depends on early preparation and collaboration. The schools, families and Local Authority should work together to ensure that the child’s needs are fully understood before the transition takes place and to help pupils feel more confident and supported when moving to a new environment. If you have any questions in relation to the above or require any assistance lodging a phase transfer appeal, please contact us.
Need Further Advice?
Does the above resonate with you? Is your child due to transition into a new key stage area in the upcoming September? Are you still waiting to receive a further EHCP or have received the further Phase Transfer EHCP and need assistance?
We have experience in all the areas above and can aid your process from start to finish. If you require help obtaining a Phase Transfer EHCP, appealing against the contents of the Phase Transfer EHCP, lodging a new Phase Transfer appeal and consolidating it with your current appeal or anything in between, please do not hesitate to contact us in this respect.
Summary
Phase Transfers play a vital role in ensuring that children/ young people, particularly those with Special Educational Needs and Disabilities, receive consistent and appropriate support as they progress through the education system. Navigating this process can be very stressful for parents and also for the children/ young people who have to make that difficult transition. If your child/ young person is awaiting a further Phase Transfer EHCP or have received one and you need to appeal, taking proactive steps can make a significant difference. By advocating for your child/ young person and exploring all available options, you can help ensure that they receive the education and support that they need to succeed and thrive. If you would like discuss your matter with one of our SEND lawyers, please contact us on 0333 202 7175 or education@hcbgroup.com.
