Section 137 of the Children and Families Act allows for transitional provision to be made in relation to the provisions in the Act. The Government has confirmed that Statements and LDAs will continue to have legal effect during the transitional period.
To place into context the difficulties in transitioning from one statutory system to another one must consider the people that are already being provided for by a Statement.
The Government reports that in 2012 alone 29,565 children were assessed for a Statement and 28,635 pupils were issued with a Statement for the first time. Approximately 250,000 children receive support by way of a Statement or an LDA, this does not include pupils that are provided for on School Action or School Action Plus.
In June 2014 the Department of Education provided a note to be read alongside the new SEN Code of Practice which provides the proposed transitional arrangements.
Is there a bar on parents making a request for an EHCP assessment if they have a Statement?
The previous consultation document confirmed plans to bar families of children with special needs from making a request for an EHCP if their child has a Statement. This was in order so that Local Authorities were not overwhelmed with requests for assessment. The note provided by the Government is now silent on this issue. This may well be because a conclusion was reached that it was unfair (and may be unlawful) to bar parents from making a request for an assessment.
Transferring from an LDA to an EHCP
The EHCP now has the potential to last until a pupil reaches the age of 25. The document provided by the Government sets the objective of transferring every pupil on an LDA to an EHCP if required by 2016.
It is the writer’s view that colleges and parents should be proactive in requesting EHCPs to ensure that parents obtain the greater legal protection in relation to securing the right educational provision that the child requires.
Pupils transferring from Statements to an EHCP
The Government has confirmed that a transfer review will take place. This will take the same form as an Annual Education Review, however, an EHCP needs assessment must be conducted in accordance with the regulations. The review must:
- Identify provision to support the child or young person.
- Provide for outcomes (objectives) to be established for the EHCP.
There will, however, be some circumstances when the evidence will not need to be obtained.
What time limits have been proposed by the Government to transfer all children on Statements to EHCPs?
When Local Authorities must hold a transfer review
The Government has set a four year time period (1st April 2018) to transfer all pupils from a Statement to an EHCP. Further all pupils must be transferred to an EHCP when they are going through transition. This includes:
- Early year setting to school
- Infant to junior school
- Primary to secondary school
- Secondary school to post-16 institution or apprenticeship
Who will be expected to transfer from a Statement to an EHCP?
The obligations increase as the years go on. Between 2015 and 2018 Local Authorities will be expected to transfer the following groups of children and young people each year:
- All children with Statements in Year 6 (not those merely transferring from one institution to another).
- All children and young people in Year 11 (not just those who are moving to Further Education).
- Those moving between one Local Authority and another.
- Children with Statements in Year 9.
- Children and young people with a Statement leaving custody.
- Children and young people issued with non-statutory EHCPs.
Planning for transitional review
The note makes it clear that the starting position would be that children with special needs would transfer to an EHCP. However any reassessment can lead to the removal of protection for a child. This could include either the dilution of specialist provision that a child is provided with or the removal of protection altogether. The key for schools and families is to make sure that all advice is kept updated and that they make requests to the Local Authority for an EHCP when their evidence is at its strongest point i.e. most up to date and compelling.
Parents need to be aware that as well as assessing a child’s needs the Local Authority may well take into account “heightened” local provision for meeting children’s special needs. As such, proper coordination must occur between school, experts, and the parents before a review is undertaken.