The SEN and Disability Regulations 2104 supplement the procedural framework for assessing a child or young person with special educational needs, and the procedure for making, reviewing, amending and ceasing to maintain an EHC plan, set out in Part 3 of the Children and Families Act 2014. They require local authorities to notify the child’s parent or the young person of decisions within certain timescales, as well as notifying them of any right to appeal such decision. (regulations 3 to 31). The Regulations also set out the powers of the First-tier Tribunal and the timescales in which local authorities must comply with orders of the Tribunal (regulations 43 to 45). [SOURCE = Explanatory Note ]
It can be easier to find and link to precise legal details of timescales etc via the Regulations rather than downloading and searching the Code of Practice (which is nearly 300 pages)
Deciding whether to carry out assessment for EHC. LA must notify family within 6 weeks of receiving request for assessment SEND Regs 5.(3)
People from whom LA must seek advice and information towards EHC assessment (also applies to re-assessment, see reg 26.) SEND Regs 6. (1)
For EHC needs assessment, LA must consult family + consider certain information (also applies to re-assessment, see reg 26.) SEND Regs 7.
Must comply with request in relation to EHC needs assessment within 6 weeks (unless family “fails to keep appointment for an examination or test made by the body during that 6 week period”) (also applies to re-assessment, see reg 26.) SEND Regs 8.
Family requiring information advice and support to take part effectively in EHC needs assessment (also applies to re-assessment, see reg 26.) SEND Regs 9.
Format of EHC Plan. What must go in Section A – K of the EHCP. SEND Regs 12.
LA must give family at least 15 days to make representations on the draft before final Plan is issued. SEND Regs 13.
LA must notify family about appeal and mediation when it sends finalised EHC Plan SEND Regs 14.
Transfer from secondary to post-16. Must review EHCP by March 31st in the calendar year of the young person’s transfer to a post-16 SEND Regs 18. (1)(a)
Transfer to secondary. Must review EHCP by February 15th in the calendar year of the child’s transfer to secondary SEND Regs 18. (1)(b)
Transfer from one post-16 institution to another. Must review EHCP at least 5 months before transfer from one post-16 institution to another SEND Regs 18. (2)
Annual Review when child or young person does not attend school eg elective home education or EOTAS: who is invited; how much notice; circulate advice and information; consider progress towards outcomes; Y9 review preparation for adulthood; written report within 2 weeks review meeting; notify decision maintain, amend, cease EHCP within 4 weeks review meeting + right to appeal, availability mediation SEND Regs 21.
Amending EHCP following review “Where the local authority is considering amending an EHC plan following a review it must comply with the requirements of regulations 11, and 12, and with sections 33 of the Act, and with sections 39 and 40 of the Act (as appropriate)…” SEND Regs 22. (1)
Reassessment Notifying family of decision within 15 days receiving request to re-assess, including right to appeal + availability mediation, advice and information SEND Regs 25. Information and advice required for re-assessment as per Reg 6 – 9. SEND Regs 26.
Amending WITHOUT review “If, at any time, a local authority proposes to amend an EHC plan, it shall proceed as if the proposed amendment were an amendment proposed after a review” ie right of appeal to Tribunal etc. SEND Regs 28.
LA must review EHC plan within 12 months of the date on which a copy of the finalised-after-reassessment-plan is sent to the family (+ thereafter within 12 months of date on which plan was last reviewed) SEND Regs 27. See also Children and Families Act 2014 s 44 re annual review.
LA may NOT cease to maintain EHC Plan for child/young person under 18 UNLESS “it determines that it is no longer necessary for special educational provision to be made” SEND Regs 29. (1)
Ceasing EHC Plan for YP 18+ SEND Regs 30. (1) + right of appeal to Tribunal SEND Regs 31. (2)
Ceasing EHC Plan for under 18 child SEND Regs 31. (1) + right of appeal to Tribunal SEND Regs 31. (2)
Requirement for family to obtain mediation certificate if not wanting mediation, before appealing to Tribunal SEND Regs 32 – 34
First-tier Tribunal has powers to correct deficiencies in EHC Plan; dismiss the appeal; order the LA to arrange assessment or reassessment; order the LA to make, maintain or continue an EHC Plan (including such amendments as FTT thinks fit); require LA to reconsider the special educational provision being made; order different school/institution or type of school/institution (eg mainstream or special) specified in EHC Plan SEND Regs 43
Deadlines for LA compliance with First-tier Tribunal orders SEND Regs 44. (NB the Tribunal Order will not necessarily set out the 2 week, 5 week deadlines etc so Reg 44 is the place to check.)
Deadlines where LA notifies Tribunal that it will not oppose family’s appeal SEND Regs 45 NB sometimes the LA may say it doesn’t oppose the appeal but also that it believes it can be resolved informally. This is contradictory and effectively means the appeal continues.
Where child or young person without EHC Plan is in special school or special post-16 institution, LA has to notify within 10 days whether or not it will make EHC Plan and then child or YP may remain until Plan is finalised SEND Regs 48
Approval of post-16 special institution SEND Regs Part 5