This page looks at the L, M and P v Devon judicial review which clarified the law regarding the deadline for amending an EHCP following annual review. As explained here, judicial review looks at whether the actions of a public body were unlawful which is defined as inconsistent with the statutory framework and any government guidance in place.
The case began in early 2020 when parents of children with EHCPs in Devon sent official letters preceding judicial review (sometimes called pre-action protocol letters) to the local authority stating that they were waiting too long for the LA to amend their children’s EHCPs following annual review. My page on annual reviews is here.
Amending the EHCP is one of the possible routes following a review meeting, other routes being to cease the EHCP, to undertake new assessments, or to maintain the EHCP as it is without any changes. My page on annual reviews is here.
The parents’ position was that the LA has 4 weeks from the review meeting to notify parents regarding the outcome of the meeting and of the proposed way forward and if the LA’s intention is to amend the EHCP then the clock starts ticking at this 4 week notification whereby the LA has 8 weeks until the final amended EHCP is issued, in which time must also be allowed for 15 days towards the end where parents have the right to give feedback on the draft amendments.
In other words if the EHCP is to be amended at all, then the final amended EHCP must be issued no later than 12 weeks from the review meeting (4 weeks + 8 weeks)
HHJ Foster upheld this interpretation of the statutory framework and disagreed with the (then widely held) view put forward by Devon CC that it remains at the LA’s discretion when to issue the formal amendment notice. This makes case law which sets a precedent.
This case took a long time to be decided and even longer for the decision to be published. There was a hearing in the Adminstrative Court at the end of April 2021, and the judge’s decision from that hearing was only published in March 2022.
The main reason for delay was that Devon while claiming that they were not bound by an actual deadline nevertheless did move on and issue amended plans. An important point of law then arose namely whether judicial review on waiting times was still possible, given that the claimants were no longer waiting.
In this situation a case becomes what is called academic ie even though the individual claimants are no longer personally affected there may be still be a public interest benefit in determining whether the public body was acting in a manner inconsistent with the statutory framework. Claimants have to get special permission to continue with an academic case but even after permission has been granted, a judge might still decide there is no role for the courts ie decline to exercise jurisdiction.
If claimants have not given up by this point, their final option is to appeal the judge’s decision not to exercise jurisdiction, and if their appeal is upheld, then the case goes to the Administrative Court. This is what happened in March 2021 where judges did allow the case to resume in the Administrative Court for what is called substantive determination.
In the final decision, which provides new case law in this area, HHJ Foster said:
“81. 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…”
“84. 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.”
In other words, it is not a multi-stage process where parents are told that the EHCP will be amended and then left in limbo for an indefinite length of time until the LA “issues an amendment notice”. Writing to parents after the review meeting to say that the EHCP will be amended IS the amendment notice.
Claimants were represented in court by Steve Broach and Alice Irving instructed by Watkins solicitors who have published a very helpful post on this case
A VERSION OF THIS PAGE WAS FIRST PUBLISHED ON MY BLOG IN MARCH 2022