The transition to education, care and health plans
What are transfer reviews?
The process of transitioning statements of SEN into education, health and care (EHC) plans is commonly known as a transfer review (although strictly speaking, “transfer review” is really the name of the first meeting held at the start of the transition process). Transfer reviews are necessary because, when the new SEN legal framework came into force in September 2014, it was important to have a formal process to follow for managing transitions properly.
Does the transfer review follow a set timetable?
Yes. All statements have to be transferred to EHC plans between September 2014 and April 2018. However, it was realised at the outset that it would not be possible to transfer the 230,000 or so statements to EHC plans overnight, so the Government also issued statutory transition guidance to help everyone understand what needed to happen and when, in order for all the transfers to be completed by April 2018.
How long does a transfer review take?
When it came into force in September 2014, the transfer review process was meant to take 14 weeks, with an additional two weeks’ notice given prior to the transfer review meeting taking place. This normally takes place at the same time as the yearly annual review of a statement. However, it became clear during the first 12 months that many local authorities (LAs) were struggling to meet this timescale, so the Government has amended the timetable from 1 September 2015, to give LAs a further four weeks (18 weeks instead of 14 weeks) to complete the process. However, this does not affect transitions that started before 1 September 2015.
What is the format of the transfer review process?
The transfer review process is usually as follows:
- the child’s parents or the young person must be given two weeks’ notice of the transfer review meeting taking place. This will usually be done by the school/institution that they attend, while the LA determines who should attend the meeting to ensure that it meets its purpose
- there is no requirement to seek further advice for an EHC needs assessment as it is possible to use existing reports if they are considered sufficient for the purposes of making an EHC plan. One of the main things that many people do not realise, though, is that it is not only the LA who must agree that these reports are sufficient, but also the parent of the child or the young person themselves and the author of the report
- the LA must then finalise a robust EHC plan within 18 weeks of the first meeting.
EHC plans, whilst similar to statements in describing SEN and provision and identifying an appropriate placement, are also different from statements, as they now also have to deal with health and care needs. Additionally, the transfer review process is not meant to be a simple rebranding exercise. The aim is to now make an EHC plan more person-centred.
What are the main timescales envisaged for transfers?
When the guidance came into force in September 2014, it recognised that the timescales envisaged could present a challenge for some LAs, so it said that, in the first year, in order not to overwhelm the system, LAs would only be required to transfer those entering into post-16 education/training, by 31 May 2015 and the following groups by 1 September 2015:
- children/young people issued with non-statutory EHC plans (those issued on a trial basis prior to the new framework coming into effect)
- those moving from early years settings to school, infant to middle school, primary to secondary school, or similar (not just those transferring from one institution to another)
- children/young people in Year 9/Year 11 (not just those who are moving into further education or training)
- those moving from mainstream to a special school or vice versa
- those moving between one LA and another.
Now that we are in the second year, others should be prioritised to follow similar patterns, but it is always best to check your LA’s formal transition plan, which should be available on its website, to see when they envisage doing things.
Does this mean that LAs now determine times for transfers?
Yes, subject to what I have said above about priorities. The whole ethos behind the new SEN framework is “localism”, so LAs have been given the power to ultimately determine the times for transferring statements to EHCPs. LAs also need not comply with the guidance if it is impractical to do so for exceptional personal circumstances that will affect the child/young person.
What are the other main things that the guidance says?
The main things that the guidance says are as follows:
- the vast majority of children and young people with statements will be transferred to EHC plans
- all those with statements to be transferred during the transition period must continue to receive the provision in their statements
- LAs should have published the first edition of their transition plan by September 2014, so that parents and young people know when they will be transferred to EHCPs
- the legal test for when a child or young person requires an EHC plan remains the same as that for a statement – the guidance states clearly that: “No child or young person should lose their statement of SEN simply because the system has changed”.
Can I appeal against the EHC plan produced or the decision not to make one?
Yes, parents of a child (under 16) or a young person themselves (if over 16) have the right to appeal against the contents of any final EHC plan issued or against a refusal to make a plan.
Are there any common pitfalls?
Apart from the transfer review process now taking longer than was first envisaged, some people are already complaining that either the whole transfer is simply a “copy and paste” job from a statement
to an EHC plan or, to their concern, the LA has used the transfer process to reduce support originally in the statement, thereby requiring an appeal to get the support back into the EHC plan (even after a recent appeal). Parents and others can be, understandably, infuriated that they are again being put to the time and expense of having to appeal once more to challenge the EHC plan.
So, what is your general advice about transfers?
In general terms (as each case is always different) I am advising people to ensure that the transfer review process isn’t just a simple “tick-box” exercise but that as much up-to-date information is available as possible and that they ensure that the EHC plan eventually produced is as tight (if not tighter) than the original statement that it replaces.
Douglas Silas is the Principal of Douglas Silas Solicitors and runs the website: www.SpecialEducationalNeeds.co.uk. He is also the author of A Guide To The SEND Code of Practice (What You Need To Know), which is available for all eBook readers: www.AGuideToTheSENDCodeOfPractice.co.uk
The advice provided here is of a general nature and Douglas Silas Solicitors cannot be held responsible for any loss caused by reliance placed upon it. Unfortunately, Douglas cannot respond to questions sent to him directly but if you have a question you would like answered in a future issue of SEN Magazine, please email: firstname.lastname@example.org