Annual Reviews: High Court clarifies timetable and 12-week deadline for amendments

The SEND Regulations do not clearly set out a timetable for LA’s to propose amendments to an EHCP. However, the High Court, in L & Ors, R (On the Application Of) v Devon County Council [2022] EWHC 493 (Admin), has now given one. It held that the true interpretation of the Regulations actually gives LA’s a deadline of 12 weeks following an Annual Review (AR), to issue a final plan with proposed changes. There were two crucial questions before the Court. The first was whether there exists “a fixed timeframe in respect of steps in the amendment of a plan where a LA accepts amendment is necessary, during the compulsory statutory annual review.” The second is a definition of “to notify” in the context of Regulation 20. This article will summarise the thinking of the Court and set out how the deadlines operate in practice. Included at the end of the post is a graphic to help visualise the process.

The claimants had all experienced significant breaches of the 4-week time limit from a statutory review meeting for notification which confirmed the proposals for amending a child’s EHCP. These delays were between 9 and 25 weeks. Following the notification, the LA had said that an 8-week time-limit (from the date that the proposed amendments were sent) applied to produce the final EHCP.

The claimants contended that a proper construction of the Regulations revealed a lawful deadline of 12 weeks following the AR to have a final plan in place. On the definitional question, the claimants argued that the SEND Regulations must be read as requiring the proposed amendments to be sent along with the LA’s statutory decision that an amendment is proposed. As the judgment sets out,

‘The substance of the Claimants' complaint is that in their situation, the proposed amendment should have been served at the same time as the local authority gave notice that they proposed to amend the EHC plan. If this were so, the obligation to notify of the decision to amend and the proposed amendments would be served on them within four weeks of the review meeting.’ (para 35)

The LA argued that it is not possible to read any timescales into the Regulations, and if the draftsperson of the Regulations wished to impose such a time-limit, as they clearly did in other scenarios, then they would have done. The timeline should be governed by common law reasonableness.

Mrs Justice Foster said that the SEND Code of Practice is ‘effectively neutral’ (42) on the matter of time-limits. Instead, it is governed by the Regulations. Mrs Justice Foster placed a strong emphasis on the fact that the overall context of the scheme is ‘front-loaded’ (59); ‘In my judgement the whole context of the EHC plan system is prompt evidence gathering, tight timetables and coexistence with the school curriculum timetable which necessarily runs in terms, forming the academic year. It is no accident that the compulsory review is a 12 monthly exercise.’ Before we dive into the timeline, it is worth giving a health warning that the Regulations are confusing and gleaning the timeline from them requires substantial jumping back and forth between them. This was even noted by the judge. Mrs Justice Foster set out the process following an Annual Review in detail. I have split the timeframe into 3 parts which I shall call:

1. “The Material-Gathering Stage”

2. “The Meeting Stage"

3. “The Decision Stage”

The Material-Gathering Stage is incredibly important for LA’s to ensure they are acting lawfully. As Mrs Justice Foster states, the scheme is front-loaded; the work needs to be done by the LA from the start. The process operates in the following way:

1. Regulation 20(1) mandates that there should be a meeting which forms the Annual Review.

2. Regulation 20(3) imposes a duty on LA’s to give at least two weeks’ notice of this meeting.

3. Regulation 20(4) mandates that, prior to the date of notification, the information on the child or young person will need to be prepared. This information will need to be gathered from the list of people invited to attend the Annual Review (Reg 20(4)), including the Head Teacher or Principal of the child’s school, LA Officers, healthcare professionals, and social services professionals (where necessary). This information must be circulated two weeks in advance of the AR.

You will notice that this is the same as the date for the notification of the meeting. Therefore, at The Material-Gathering Stage, the combination of steps 1-3 means that all information and advice must be collected before the child’s parents or young person is given their two weeks’ notice of an AR. But the information and advice must be circulated to those invited to attend the meeting at the same time as the notification.

The next stage is The Meeting Stage. The meeting is held. After this, the LA is obliged to ask the Head Teacher/Principal to prepare a written report setting out their recommendations for amendments to the child’s EHCP. It should also make clear any differences between their recommendations and any others who attended the AR meeting: Reg 20(7). The report should use the information and advice from The Material-Gathering Stage: Reg 20(9). This report must be prepared ‘within 2 weeks of the review meeting’ and sent to everybody listed as a relevant officer/official.

At this point, if all deadlines have been met on the due date, then 4 weeks will have passed since the notification of the Annual Review.

The final stage is The Decision Stage. As you will know, the LA must decide on one of three courses of action: (A) maintain the EHCP in its current form; (B) amend the EHCP; or (C) cease to maintain the EHCP. There is a duty to “notify” (more on this below) the child’s parents or the young person of their decision within 4 weeks of the review meeting. So, if it has taken 2 full weeks for the Headteacher to prepare the report (as it may well do), then the LA has 2 weeks to notify the parents or the young person of their decision on (A), (B), or (C).

At this point, we need to take a breather from the proposed timeline to talk about the duty to “notify” in Reg 20(10). As set out above, the claimants argued that to “notify” did not only mean to tell the parents or young person that the LA was considering changes. Instead, it meant also sending the actual proposed amendments. The Court agreed, and said the plain meaning of “notify” in Reg 20, in this context, “does not mean only “notify… the parents we are considering the possibility of amendments, as yet unspecified…” [instead] what the notification obligation entails depends upon the upshot of the local authority’s proposed decision. In my judgement, in order to be meaningful, the notification must include the gist of the way forward. The gist of the way forward in a continuation scenario is no more than the extant EHC Plan. No further material requires to be provided for the parents to know what is proposed. The gist of the way forward in a cessation scenario, likewise, is no more than the absence of the extant EHC Plan. Proposed amendments are the gist of the way forward… and require to be notified.” (62)

Mrs Justice Foster is saying that, in the examples of Options (A) and (C), then the duty to notify is very easy. The LA is simply saying that they are going to continue the plan in its current form or end it. Knowing what provision is to be made in the future is very easy in these situations; it is either the provision that has been made for the past year, or none. However, Option (B) is more difficult because without seeing the proposed changes, the parents or young person are left in an uncertain position because they do not know “the gist of the way forward”.

With that definition established, we can complete our timeline.

If the LA chooses Option (B) and is considering amending an EHCP, then the LA must “send the child’s parent… a copy of the EHC Plan together with a notice specifying the proposed amendments, together with copies of any evidence”: Reg 22(2)(a). The LA must also give the parents at least 15 days beginning with the day when the draft plan was served upon them to make representations: Reg 22(2)(c). If the LA decides to amend the plan following representations, it must send the finalised EHCP “as soon as practicable, and, in any event within 8 weeks of the LA sending a copy of the EHC Plan in accordance with para 2(a)”: Reg 22(3).

Combining this with the proposed definition of the Court of the obligation to “notify” (Reg 20(10)), when the LA sends the copy of the EHCP along with the notice of proposed amendments, the parents have 15 days to make representations to the LA. 5 weeks and 6 days later, the LA must send a finalised EHCP, however, it should be sent “as soon as reasonably practicable.” All in all, a final plan will be in place 12 weeks from the AR meeting.

The practical importance of this case cannot be understated. The Local Government Ombudsman has repeatedly highlighted delays in the EHCP process as maladministration. This case clearly sets out the lawful timeframe in which LA’s must operate. It also clarifies that proposed amendments should be attached to the notification of amendment. For LA’s not currently operating under these rules, amendments must be made to be acting lawfully.