The High Court has ruled in favour of three claimants in a dispute over whether there is a fixed timeframe in respect of steps in the amendment of an Education, Health and Care (EHC) plan where a local authority accepts amendment is necessary, during the compulsory statutory annual review.
The background to the case of L & Ors, R (On the Application Of) v Devon County Council  EWHC 493 (Admin) is that L, M and P are all children in respect of whom the defendant local authority had prepared and maintained Education Health and Care plans ("EHC plans") pursuant to its obligations under the Children and Families Act 2014 and the Special Educational Needs and Disability Regulations 2014/1530 ("the Regulations") made thereunder.
Mrs Justice Foster said that although in respect of the cases before the court, the individual matters had already been resolved, a decision on the point of statutory interpretation arising was directed to be heard by the Court of Appeal who reversed the previous trial judge's decision to the effect that the issue on timeframes was academic and ought not to be determined.
The High Court judge said it was common ground that a strict timetable exists for many of the steps taken in respect of special educational provision under the EHC plans process.
The case before her concerned whether there was also a fixed timeframe in respect of steps in the amendment of a plan where a local authority accepts amendment is necessary, during the compulsory statutory annual review.
The claimants argued that necessarily, as an annual review feature, an overarching time frame did exist, and that within 12 weeks of the annual review meeting, properly read, the statutory scheme required a local authority to issue a final amended EHC plan.
“This is an important step because the issue of the final amended plan triggers a right to contest provision under the plan on appeal,” the judge noted. “The Statutory Appeal Tribunal exercises a de novo jurisdiction and will decide the suitability of provision for itself if provision is appealed. The decisions made affect which school is to be attended and what provision is made for children who may require significant specialist input for their welfare. Delays, and the local authority's interpretation of the time provisions, mean an issue may not get before a Tribunal in time for the new academic year.”
The claimants argued there was an imperative to accomplish all the steps in the amendment process as soon as possible in the best interests of the child or young person in question.
The defendant council, by contrast, argued that the Regulations imposed no express time-limit for this part of the plan process, accordingly, the law would read in only a reasonable time in which to accomplish the statutory obligation, and that wouldlawfully protect the relevant interests.
Mrs Justice Foster said that in the cases of L, M and P, there were what the claimants' representatives submitted were indefensible delays by the county council, particularly in respect of the finalisation of amended plans for the claimants.
“In summary, the Claimants allege that the Defendant significantly breached a time limit of four weeks from the statutory review meeting for sending a notice confirming its proposals for amending their EHC plans. It took nine weeks for the defendant to provide requisite notification under the Regulations to L, fourteen weeks in respect of M and twenty-five weeks in respect of P.”
Following this notification, Devon stipulated that an eight week time-limit from the date of sending the proposed amendments applied for the production of the finalised EHC plan thereafter.
The judge said that counsel for the claimants submitted “with some force” that delays were wholly undesirable in the context of education provision for persons with special needs. He cited a significant impact upon the claimants in this case. The delays in amending in turn delayed the ability of the claimants' parents to appeal to the Tribunal to challenge deficiencies they saw in the finalised plans.
Counsel for Devon meanwhile pointed to what he argued was the clear wording of the Regulations, in what he said was the operative provision, there was no express time limit, nor could one be read into the relevant part of the instrument.
Mrs Justice Foster found that:
- It is mandated under Regulation 20(1) that there be a meeting. From the date fixed for that meeting, a local authority will be obliged to count back in time in order to ensure that pursuant to Regulation 20(3) at least two weeks' notice of the date of it has been given.
- If, (let us say), the notional meeting was on 1st March, the latest date for notification of it would be 15th February. Furthermore, it will have been necessary to arrange prior to that February date, for certain information to be prepared and circulated. “This represents significant front-loading of the system of review that must start well before the meeting timetable commences.”
- A meeting is held. Under Regulation 20(7) the local authority is obliged to ask the head teacher or principal to prepare a written report setting out their recommendations for any amendments and referring to any difference between those recommendations and the recommendations of others attending the meeting. The report must be prepared "within two weeks of the review meeting", that is to say on this paradigm of a meeting on 1st March, latest by 15th March.
- When the time comes for the local authority – under Regulation 20(1) – to "then decide whether…it proposes to…amend" all of the materials will have been gathered: the meeting will have taken place, and the school will have reported in order to assist the local authority in its decision. The authority then has from the (notional) 15th March date until 29th March to "notify" the parents or young persons under Regulation 20(10) - i.e. "within four weeks of the review meeting".
- Regulation 22, which is headed "Amending an EHC plan following a review", states that "when considering amending a plan" [emphasis added by the judge] the local authority must comply with requirements (inter alia) to consider evidence (Regulation 22(1)), and, by Regulation 22(2)(a) "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 [et cetera]". Under Regulation 22(2)(c) the local authority must also when considering amending a plan after a review, give the parents at least 15 days beginning with the day when the draft plan was served upon them so that they may make representations. “In our notional calendar that period ends on 13th April,” the judge said.
- Under 22(3) where the local authority decides to amend the plan following representations, it must send the finalised EHC plan "as soon as practicable, and, in any event within eight weeks of the local authority sending a copy of the EHC plan in accordance with paragraph 2(a)". That means that if it takes 15 days for the parents to make their representations, counting eight weeks from the notification under Regulation 20(10), namely 29th March, the authority has until 24th May. If the obligation to "notify" under 20(10) is as explained under 22(2)(a), and includes the proposed amendments, this last date of 24th May will see a finalised plan in place by 12 weeks from the review meeting.
“Such a timescale is in my judgement wholly consistent with the structure of the scheme, in light of its subject matter and the timescales provided elsewhere in the framework,” Mrs Justice Foster said.
She added: “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.”
The judge said: “Most importantly, and decisively for this appeal, in my judgement the plain meaning of ‘notify’ in Regulation 20 in context must mean this, it does not mean only ‘notify…the parents we are considering the possibility of amendments, as yet unspecified’.”
What the notification obligation entails depends upon the upshot of the local authority's proposed decision, Mrs Justice Foster said. “In my judgement, in order to be meaningful, the notification must include the gist of the way forward.”
Later the judge said that if the local authority had decided to amend the EHC Plan, it was “wholly unlikely” that it would have no idea what a proposed amendment might look like. “Indeed, in my view, they could not reasonably know whether they proposed amendment, (rather than retaining the status quo or ceasing a plan), unless they had articulated for themselves the potential change. Especially since it is the case that two weeks before the meeting giving rise to the decision to amend, the relevant materials or most of them will have been gathered.”
Mrs Justice Foster said she was of the clear view that the scheme could be read so as to impose the obligation to notify not only of the intention to amend, but also of the proposed substance, at the same time.
“The scheme contained within the Act and the Regulations is crafted to ensure the speedy ascertainment and meeting of a child's needs and provides a timetable at each material stage of important decision-making that ensures a clear framework for the parent or young person who might wish to challenge the relevant decision,” she said.
“The perceived absence of a time limit for notifying amendments has in my judgement, allowed the Defendant County Council to act inconsistently with the statutory objective, which must be understood as including the time sensitive determination of the developing requirements of children and young people with special educational needs.”
The judge added that in spite of the resource implications of a time-limited amendment process, she was unconvinced that there was a particular reason for this stage of the process not to be subject to the exacting timetable which obtained elsewhere in the scheme.
“The need for a parent or young person to achieve certainty (either by acceptance in good time, or by way of appeal) is as acute in respect of amendments as it is on the initial provision of a plan. Evidence shows that where a very extended period is taken to produce certainty, serious prejudice may result.”
Finding for the claimants, Mrs Justice Foster concluded: “The central question of the timescale for submitting the proposed amendments to the parents or the young person where the local authority is considering amending an EHC plan is as the Claimants argue it to be. Regulation 20 must be read with Regulation 22; the plain meaning of the word "notify" in Regulation 20 in the context of this statutory scheme means notify the relevant people of the substance of the proposed way forward. In the case of an amendment, that substance includes a draft of the proposed amendments.”
The judge added: “The court is not without sympathy for the resource-led arguments of a local authority, however, the whole of the scheme could be described as resource heavy, and time dependent. That is a clear deduction from the statutory framework, the Regulations and the Code. It is clear that there is throughout this legislation a tension between timing and available resources. That inheres as a result of Parliament's choices, it cannot condition what in my judgement is the clear meaning of the statutory instrument in question.”
Law firm Watkins Solicitors said the change would have “a monumental impact” on the whole annual review process going forward.
The firm said it was not just Devon that had taken this approach and called on what it described as the common practice of delay in updating EHC Plans to stop.
Dr Keith Lomax, solicitor with Watkins Solicitors, said: “This judgment has been a long time coming, but so worth waiting for. Councils prosecute parents for failing to ensure their children attend school and argue that every day matters. Yet they regularly delay for months in their duty to make sure children with special educational needs get the provision they must have.
“Children end up out of school for months. Mental health gets worse. Parents struggle to get suitable school placements. All because the council has delayed updating the EHC plans.”
He added: “This judgment is a wake-up call to local authorities across the country, that have been using what was seen as a loophole in the regulations to delay updating the EHCP plans and provision for children with SEND. Amending a young person’s EHCP must be done within 12 weeks of the annual review. This will also affect parents exercising their right of appeal to the First-tier Tribunal to get suitable school placements in good time.”