Phase Transfer deadline: is your preferred school named?

For the most part, this means pupils progressing from primary to secondary school, however, also includes those moving from nursery to reception, infant to junior, middle school to senior etc. The only exception is for those entering post 16 or Post 19 education whose EHCPs must be finalised by 31 March. In this briefing, associate Erin Smart explains why it is important to make sure the local authority has named your preferred school in your child’s EHCP, and what parents can do if they don’t. 

This is a legal deadline with which the local authority must comply. This deadline is important as it allows sufficient time for parents to bring an appeal if they disagree with the school or college placement the local authority has named or are seeking an education otherwise that at school (EOTAS) package.  Any failure to meet this deadline can be robustly challenged through judicial review. The first stage of this process requires a formal pre-action letter (to be responded to within 14 days). This is usually enough to prompt the local authority to act in line with the requirements to issue the amended EHCP. 

When the final amended EHCP is issued, the local authority must also notify parents of their right of appeal to the First-Tier (Special Educational Needs and Disability) Tribunal. An appeal can be brought by parents or young people themselves (for pupils aged over 16), if they disagree with the contents of the EHCP. At this point in the year, most appeals are in response to the new school named in Section I of the EHCP and appeals are lodged challenging the school placement proposed by the local authority. 

The February deadline was based on the Tribunal’s 12-week timetable. However, as many will be aware, the number of appeals in the tribunal have increased year on year, leading to a current typical appeal timeline of over 50 weeks. 

In order to allow for some certainty for children and parents in respect of the next phase of education, the Tribunal can list phase transfer appeal cases on an expedited timetable to allow, for the most part, for decisions to be made before the summer holidays. Time is therefore of the essence in terms of both LA decision-making and parents bringing appeals as soon as possible within the two month limitation period. 

As part of any appeal, parents or young people can also request amendments of the other sections of the EHCP. Sections B (needs) and F (education provision) are often highly  relevant for any appeal against the school named, as well as sections C&G (health) and D&H (social care) needs and provision. Where the placement being sought by the family is residential in nature, social care advice is often very relevant, and for children with complex medical needs requiring placements with on-site specialist medical support, health is an important consideration.

Awaiting phase transfer decision can be a hugely stressful time and receiving the news that an unsuitable school has been named for your child, with such a significant implication for their educational progress and welfare, simply devastating.

The education team at Russell-Cooke are experts in securing the school places and education, health and care provision children need, including through robustly challenging local authority decision-making.  

Erin Smart is an associate in the education law team. She advises on a wide range of educational issues and specialises in special educational needs, including assisting clients to apply for EHCPs.