While most families are enjoying their summer holidays, many families with disabled children can’t switch off, as they’re still trying to get the right educational support in the form of an Education, Health and Care Plan (EHCP).
There is a 20-week deadline for completion of the entire process and this timescale is clearly laid out in the 2014 SEND Regulations. However, 2023 figures show only 49% of local authorities met this deadline. Over the summer, and in some other circumstances, it may claim an “exception” as cause for a delay. Last year England’s LAs cited an exception in 3,462 cases.
What is an exception?
The exception “loophole” can be used in limited circumstances not to comply with the 20-week deadline:
- If the LA has asked for information from a school, early years provider, or college one week before it closed for four weeks continuously. This, in effect, means during the summer holidays. This period ends one week before the date it re-opens.
- If “exceptional personal circumstances” affect the child/ young person or their parent during that time period, or,
- If the child/young person or their parent, are away from the LA’s area for a “continuous period of not less than 4 weeks during that time period”.
These are the only circumstances when an exception to the 20-week deadline can be applied. The SEND Code of Practice says that LAs should tell families when they are using the exception, but in our experience, this rarely happens. While most of the time, there are genuine reasons for an exception, it is important that an LA isn’t allowed to disapply the regulations simply because it’s summer.
What are the implications of using the “exception”?
Use of an exception means a child’s EHCP will be delayed even more than it may already be (given that half of all EHC Plans are late). It also impacts a family’s right to appeal because it’s not possible to appeal to the SEND Tribunal unless an EHCP is final. When the exception is used, it can be difficult to know what the new timeframe is for finalising the plan.
If your child’s EHCP is late, it’s a good idea to ask your local authority if they have applied the exception criteria, if so, why, and remind them they should keep delays as short as possible.
If you think your LA is using the exception without justification, or just because it’s convenient for them to do so, please get in touch if you feel you need our legal help. You might also want to let Ofsted know, as misuse of the exception rule is something they are now on the look-out for.