Following a landmark judgment issued this week, every local council in England must now keep to fixed legal time limits when reviewing the needs of children and young people with special educational needs.

The annual review process involving Education, Health and Care (EHC) plans will now be subject to strict timelines following R (L,M, and P, v Devon County Council [2022] EWHC 493 (Admin). EHC plans, which must be reviewed annually, will now have to be reviewed within 12 weeks.

Guv Samra, Shoosmiths’ education law specialist said: “The above judgment introduces a strict timetable for the annual review process which has been sorely sought after. For many years now, I have had parents come to me for advice on the content of their child’s EHC plan, and, when I have reviewed the content, I have found it to be significantly outdated.

“This is often due to the annual review process not being followed and completed. This then results in significant problems during the child’s educational career as the EHC plan follows the child to each educational setting they access. If the child’s special educational needs and provision to meet those needs is not updated, then, the educational setting will not have the information they require to ensure the child’s needs are met.”

Guv advised that the process should be as follows:

• School arrange a date for the annual review meeting to be held and send out invitations to parents, therapists and the local authority.
• Information must be gathered from parents and young people and from professionals about the EHC plan and then circulated two weeks before the meeting.
• An annual review meeting must take place to discuss the EHC plan.
• After the meeting a report of what happened must be prepared by the school and circulated to everyone who attended or submitted information to be discussed. The report must be prepared within two weeks of the review meeting and sent to the local authority.
• After the meeting the LA reviews the EHC plan. The local authority must then decide whether it proposes to
  • continue to maintain the EHC plan in its current form;
  • amend it; or
  • cease to maintain it
    
    and must notify the child’s parent or the young person within four weeks of the review meeting

Following this decision, if amendments to the EHC plan were called for, then the LA were required to issue a draft EHC plan with the relevant changes. However, there was no timeline as to when this needed to be done by. LAs were deciding this for themselves. And if parents were not persistent or if they did not have representation to pursue the LA, then significant delays were incurred.

Many parents and children were subjected to endless delays, and left with outdated and incorrect EHC plans. This has then led to delays with school placements being granted, or in some cases, incorrect placements being allocated on the basis of outdated EHC plans.

Guv added: “The judgement issued on March 8 2022 has rectified this by stating that the draft amended plan must be issued within four weeks of the annual review. The final amended plan must be issued within 12 weeks of the annual review.

“This is a significantly beneficial change which will ensure that the annual review process is indeed carried out as it was always meant to be, and EHC plans will be updated accordingly in a timely manner. The process will take into account ‘the time sensitive determination of the developing requirements of children and young people with special educational needs’ as noted by The Honourable Mrs Justice Foster DBE, in her judgment.”