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Phase transfer deadlines for EHC Plans: What parents and young people need to know and what to do in the face of the 50+ week tribunal timetable

By 15 February each year local authorities must issue the final Education, Health and Care (EHC) plans for all pupils transferring between different phases of education - except those transferring from year 11 to post-16 education, for whom EHC plans must be finalised by 31 March in the year of transfer.

This is a legal deadline which the local authority with responsibility for maintaining the child or young person’s EHC Plan must comply with. 

If the local authority doesn't comply with the deadline, this is a failure which can be challenged through judicial review. Often sending a formal pre-action letter requiring a response within 14 days is enough to prompt the local authority to comply with their legal obligations.

What councils must provide when issuing EHC plans

When the final EHC plan is issued, the local authority must provide a right of appeal to the First-Tier (Special Educational Needs and Disability) Tribunal. This allows an appeal to be brought by parents or young people if they disagree with the contents of the EHC plan, including the school named by the local authority in section I of the plan.

Appeals to the tribunal can also be registered as an extended appeal, which allows the tribunal not only to make decisions about the education sections of the EHC plan, but also to make non-binding recommendations about health and social care. This can be beneficial in many cases, particularly where a residential school is requested.

Increasing number of tribunal appeals

The phase transfer deadlines were historically set on the above dates in recognition of the fact that tribunal appeals were intended to follow a 12 week timetable from lodging the appeal to final hearing. 

In getting the final amended EHC plan in the February or March respectively in the year of transfer, this would allow time for parents and young people to lodge an appeal challenging the contents of their EHC plan or the school named, and get a decision from the tribunal before September. 

However, as recognised in the SEND Review Green Paper presented to Parliament in March 2022, the number of appeals in the tribunal have increased year on year since 2015 with 8,600 appeals being registered in the 2020/2021 academic year. This has led to extreme resourcing pressures in the tribunal, and a current appeal timeline of 50+ weeks. 

Expedited timetable to prioritise phase transfer appeals

The tribunal has recognised the difficulties this causes for those who are undergoing phase transfers this year, and it has confirmed that it's prioritising phase transfer appeals on an expedited timetable. 

Parents or young people lodging appeals seeking a decision relevant to a phase transfer in September this year should ensure they make a request for expedition when they lodge their appeal with the Tribunal.

At Irwin Mitchell we've an experienced team of solicitors who regularly conduct appeals to the tribunal and challenge local authorities for the failure to meet their legal duties. 

If your local authority has not issued the final EHC plan by 15 February, or if you disagree with the content of the EHC Plan, our solicitors will be able to advise you on how we can assist. 

Find out more about our expertise in supporting families in this area at our dedicated special educational needs advice section