Deadline fast approaching – Phase Transfer for children and young people with an EHCP
Introduction – Phase transfer
The law states that ahead of a child moving between key phases of education their Education, Health, and Care Plan (EHCP) must be reviewed and reissued to allow for planning and preparation for transition and provision in the new educational setting.
The phase transfers are:
- early years provider to school
- infant school to junior school
- primary school to middle school
- primary school to secondary school
- middle school to secondary school
- secondary school to a post-16 institution.
The deadline for EHCPs to have been reviewed, amended (where necessary), and issued for most phase transfers is 15 February. For transfers for young people from secondary school to a post-16 institution or apprenticeship, the deadline to review and make any amendments to the EHCP is 31 March.
Where the transfer is taking place at a different time of the year to September, the local authority (LA) must take this into account, review, and amend the EHCP at least five months before the transfer takes place.
For those who have not yet received their amended plan, it can be an anxious wait until then.
The Review Process
The review for phase transfers should follow the process of a usual annual review. Four weeks after the annual review the LA must send the proposed amendments and a draft of the EHCP to the parent or young person. The parent or young person then has at least 15 days to make representations about the proposed amendments/content of the EHCP and to request a particular school is named. The LA must issue the final amended EHCP, with notice of appeal rights which should be included within the decision letter, within eight weeks of the draft. To comply with these statutory deadlines the annual review for all transfers, except those between secondary to post-16 institutions, must have been held by no later than 23 November 2023 and the draft EHCPs issued by 21 December 2023.
Phase Transfer, and particularly the transfer from primary to secondary school, is frequently when it becomes necessary for a child to move from mainstream to specialist provision. This decision, in and of itself, can be daunting but it’s crucial to be aware that you must inform the LA of the type (be that specialist or mainstream) and the name of the school you’d like named in your child’s EHCP. Usually, the venue for these discussions would be the annual review but if one’s not been called you may need to take things into your own hands. The LA must then consult your school of preference and any others they are considering before they name one in the EHCP. Schools must be given 15 days within which to complete the consultation and must have view of the draft EHCP as well.
What if you are not happy with the amended EHCP?
If the local authority has issued a final EHCP and you are unhappy with the special educational needs reflected in Section B, the special educational provision listed in Section F, or the setting named in Section I, you have the right to appeal the LA’s decision in the First Tier Tribunal. You can also ask the tribunal to make non-binding recommendations in respect of health and social care needs and provisions (known as an Extended Tribunal).
You have two calendar months from the date that the LA made their decision to lodge the appeal. Before doing so, where your appeal includes Sections B and F of the EHCP, you must obtain a mediation certificate. The decision letter will include instructions on how to obtain the certificate. Once obtained, you have a further calendar month from the date of the mediation certificate to lodge the appeal. However, you should act quickly once you have received the EHCP because time is of the essence ahead of the transition in September and the tribunal will receive an influx of these appeals at the same time.
If you are only appealing Section I of the EHCP (educational placement) you do not need a mediation certificate.
What should you do if a review has not been carried out?
If your child is a phase transfer and the local authority has not yet arranged a review, the LA is in breach of its statutory duty.
You have a right to complain to the local authority if they have not complied with the statutory deadlines listed. Depending on the circumstances, it may be necessary to consider a public law remedy arising from the Judicial Review process.
Contact
If you would like advice or assistance about the above, please contact Legal Director, Polly Kerr, who leads the Education team at Tees, on 0330 135 5806 or by email at education@teeslaw.com.
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School Governor
Northampton shire
Excellent speaker, passionate about the subject, knowledgeable, quick, amusing reactions. I used to organise and see 12-20 presentations for senior business executives every week. Polly is up there with the best, and the pitch/tone was ideal for Governors.
Legal 500 UK 2025
South East
Polly Kerr is one of the most dedicated lawyers. Her passion for helping parents in special educational needs appeals is remarkable. She goes above and beyond, and her hard work ensures that every case that gets to the tribunal is advanced on as strong a footing as possible.
Legal 500 UK 2025
South East
Polly Kerr is a stand out solicitor.
Legal 500 UK 2025
South East
An outstanding lawyer who really has a grasp of the law, her client's needs, and which barrister is the right fit. Polly really is the definition of a go-to solicitor.
Legal 500 UK 2024
'They are incredibly experienced in working with families on appeals to the SEND tribunal, and Polly Kerr is quite simply, outstanding'
Legal 500 UK 2024
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Legal 500 UK 2024
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Legal 500 UK 2023
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Alex and Jenny
Stevenage
We were going the through the most challenging appeal process to secure our daughter’s Education Health and Care Plan provision. Polly put together a coherent working document which the Tribunal agreed almost all of. Our daughter started a new school and we’re thrilled with the outcome.