A recent High Court case involving Devon County Council has provided much needed clarity on the timescales for action used by a local authority when it decides to amend an EHCP following an annual review.
A recent High Court case involving Devon County Council (L & Ors, R (On the Application Of) v Devon County Council  EWHC 493 (Admin) (08 March 2022) (bailii.org)) has provided much needed clarity on the timescales for action used by a local authority when it decides to amend an EHCP following an annual review.
When considering claims relating to delays arising from Devon’s actions where amended EHCPs were not issued until four to six months after the date of the annual review meeting, the High Court looked at the interaction between regulations 20 and 22 of the SEND Regulations 2014 (which provide the legislative framework for post-review action).
The High Court determined that any amended EHCP flowing from an annual review meeting must be issued within 12 weeks of that meeting. The Court felt that this approach was in line with the SEND system which is “front loaded”, with advance preparation and information gathering to assist with the tight timescales outlined for other elements of the SEND framework as set out in the Children and Families Act 2014 and SEND Regulations 2014.
The Court considered the actions and timescales following an annual review should operate as follows:
This judicial interpretation of the regulations will have a significant impact on local authorities and schools in the management of annual reviews. It will be necessary for all elements of the review process, including the information gathering before the review meeting, to be undertaken effectively in order to allow the school to run the annual review meeting in a productive manner and to be in a position to provide the local authority with firm recommendations for amendments to the EHCP.
Subsequently, authorities will need to ensure swift action is taken to consider the recommendations and appropriate action taken in light of those recommendations and the available evidence. The resources available to the local authority will not be justification for any failure to adhere to these timescales.
We have already seen pre-action letters referencing this case law and, as such, it would be prudent for local authorities to ensure that their decision-making processes are able to cope with this new timetable.