Special Educational Needs and the importance of local authorities complying with time limits

It is now 10 years since the Children & Families Act 2014 and the Special Educational Needs & Disability (SEND) Regulations and Code of Practice were introduced. They place legally binding time limits on local authorities to take key steps in assessing and addressing a child’s special educational needs.

A local authority has 20 weeks to finalise an Education, Health and Care Plan (EHCP) from when a request is made for an assessment of special educational needs, subject to limited exceptions.

During the last 10 years, I have seen many examples of these important statutory time limits being missed by local authorities. Unfortunately, in recent times the position seems to be getting worse. Most recently, this is highlighted by an improvement notice issued to the London Borough of Bexley on 1 May 2024 following an Ofsted and Care Quality Commission SEND inspection. The notice is to address three areas for priority action and two areas of improvement, and these include:

• There should be an urgent improvement to arrangements for ensuring that amended EHCPs are completed and issued in a timely way, and better reflect the child’s changing special educational needs and the special educational provision needed.
• The local authority should quickly address the delays and gaps in commissioning speech and language therapy and occupational therapy to meet special educational needs.

This comes on the back of another case, this time involving Hertfordshire County Council ¹ , concerning significant delays in finalising a child’s EHCP. The High Court referred to the 2014 Regulations and noted that:

These are not duties to use ‘best endeavours’ to complete assessments within defined periods but are hard-edged legal duties.

Following that case, Hertfordshire County Council are reported to have commissioned an independent review into how it undertakes EHC needs assessments.

What can be done if there are delays in a local authority meeting an EHCP deadline or if an EHCP is not complied with?

We know it can be extremely challenging for parents to get to the point of securing an EHCP, and legal proceedings are rightly a last resort. However, time limits are laid out in law for very good reason. If a child has special educational needs and there are delays in putting in place key special educational provisions, then the gap between that child and their peers is likely to widen.

For these reasons, if time limits are not complied with, we often take judicial review proceedings for our clients. Such proceedings can ensure assessments and reviews are undertaken and that there is compliance with an EHCP, including getting in place key speech and language therapy and occupational therapy. The court can deal with such applications quickly and recognises the importance of doing so in circumstances when local authorities have not.

¹ W, R (on the application of) -v- Hertfordshire County Council 2023 EWHC3138 (Admin)