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15th Feb Deadline - Phase Transfer - Moving School in Sept 2014.

(20 Posts)
manishkmehta Sat 18-Jan-14 02:04:40

Help,... I spoke to a mum this week about her child moving to a "new" school in Sept 2014. I informed the mum that the LEA had a deadline of 15th Feb 2014 to amend the statement... at which point the mum pointed out that the LEA were holding the Annual Review post 15th Feb... How very under handed... It seems almost certain, if they do this, that the parent won't have the right of appeal until April.

For the legal minds... is R (on the application of M) v East Sussex County Council [2009] EWHC 1651 (Admin) the correct case law to cite if the LEA refuse to amend by the 15th Feb 2014? - Given that the judge allowed that JR,... Would parents be able to JR an LEA for not amending in a transfer year by 15th Feb? - That is my understanding of the (Special Educational Needs)(England)(Consolidation) Regulations 2001, SI 2001 No 3455, specifically section 19.

Please help and correct me if i am mistaken... If anyone has this probem and if this isn't WRONG then i've already drafted the letter if you need a copy.

Thanks in advance for any assistance.
Manish.

nennypops Sat 18-Jan-14 10:25:31

I don't think you need to cite that case or any other, I think you just cite Regulation 19. The duty is absolute, there is nothing in there saying it's dependent on whether there has been a recent annual review or not. So yes, the parents can JR it.

StarlightMcKingsThree Sat 18-Jan-14 18:42:38

Does it apply for phase transfer from KS1 to KS2?

Just wondered as we have requested a new school for KS2.

manishkmehta Sun 19-Jan-14 00:12:42

Hi... Sorry to be so woolly... but i have to be honest, i haven't thought of it in terms of KS1 or KS2... the exact wording in section 19 can be found here...

www.legislation.gov.uk/uksi/2001/3455/regulation/19/made

Basically the 15th Feb date applies to transfers between...

(a)primary school to middle school;

(b)primary school to secondary school;

(c)middle school to secondary school, or

(d)secondary school to an institution specified in section 2(2A) of the Act.

Hope that helps.
Thanks,
Manish.

StarlightMcKingsThree Sun 19-Jan-14 00:16:51

So not infants to Juniors?

Tbh it doesn't matter much to me. I can't imagine a final statement even being possible before Feb 14th and I care very little whether Ds starts Juniors in September or later.

StarlightMcKingsThree Sun 19-Jan-14 00:17:05

Thanks though.

MooMummyMoo Sun 19-Jan-14 18:12:34

Does anyone know if it is also applicable to children moving straight in to special school to start reception year? Starting to have a bit of a panic as her annual statement review isn't until end of this month which is when we'll put down our school choice but the statement won't have been officially changed I wouldn't have thought by the 15th feb??!!

Panic

manishkmehta Sun 19-Jan-14 19:10:18

I'm just thinking so if i miss something then PM me and shout... If your child is moving schools / starting a new school... Where you need to choose a school... most LEAs do provide the forms in October, i.e. 11 months before the move... Then 15th Feb is the deadline for amending the statement... So Annual Reviews should have taken place to inform the naming of the school in part 4...

If you have given your LEA the name of a school and they have agreed to it in writing then you should be fine. However, if you have still to give them a name, and your annual review isn't till post the 15th Feb then the possible issue i foresee is "what happens if they name a school that you don't want?" - this deadline of 15th Feb is in the code of practice and the regulations, as stated above, so that if parents aren't happy with the changes (parts 2+3) / placement (part 4) then they have time to appeal before school starts in September.

See CoP -

8:132 When a child is moving to a new school, particularly at phase transfer, the statement should be amended to name in Part 4 both the current placement and the new placement, stating an appropriate start date for the latter. This will make sure that parents, children and the receiving school can plan well in advance of transfer, and entitle
parents to appeal to the SEN Tribunal in good time if they disagree with the named school. At phase transfers, except from early education settings to the primary phase, the statement must be amended no later than 15th February in the year of transfer. The amended statement should specify the current school attended by the child (if any) and the new school, indicating the date on which the child will move there.

I think the best thing to do is make sure you have given your LEA the forms stating the school you want and asking them when they plan to amend the statement... If you don't get a response then I've already drafted a letter for another mum and you are more than welcome to have a copy... But I'd ask the LEA first if you have any concerns... The only time i think this might be an issue is if you think they aren't going to name the school you want.

Best wishes,
Manish.

MooMummyMoo Sun 19-Jan-14 19:47:14

Thanks Manish

lougle Sun 19-Jan-14 20:13:17

I think it's possible that you've got a few crossed wires here, manishkmehta. The annual review and the amendment of the statement for phase transfer are not synonymous. It is entirely possible to have an annual review after 15th February but still comply with the regulations and indeed the SEN CoP.

"5:72 Thus for all children transferring between phases, except from early education settings, a provisional recommendation should be made in the year previous to transfer so that parents can consider options at the same time as other parents. The child’s statement must then be amended by 15 February of the year of transfer in the light of the recommendations of the annual review, the parents’ views and preferences and the response to consultation by the LEA with the school or schools concerned. There will be no need to require the annual review for such children to be brought forward since the information from the previous review can be used. All the arrangements for a child’s placement should therefore be completed no later than the beginning of March before transfer. It is important for placements to be finalised as early as possible in order for any advance arrangements relating to that placement to be made and to ensure that parents and children feel confident and secure about the arrangements in question." (pg. 58)

So the key question is whether the last annual review, held in year 5, involved a recommendation as to which school might be appropriate for Year 7 onwards?

manishkmehta Mon 20-Jan-14 00:37:49

Dear Lougle, The parent who raised the initial question had the very real problem of not knowing what to do given that the LEA were suggesting that the annual review be held in March of this year. From speaking to the mother it was unclear if the LEA in her situation were going to amend the statement by the 15th Feb, or not. Her concern being that she wouldn't know how long it would be before she had a right of appeal - Clearly the longer the LEA waits to amend the statement the longer it will take for her to challenge the LEA.

So, I suppose the problem I was trying to help her with is "if her LEA do not meet the 15th Feb deadline to amend the statement, what can she do?" - From my conversation with her, the concern is that if the LEA doesn’t amend by the 15th Feb and hold an annual review in March, and then delay till April before giving her the right of appeal she maybe unable to get an appeal lodged in time for Sept. The problem being that they may name a school that she does not want. Indeed that was her worry and hence this thread.

So, I appreciate you might be right. I may well have my wires crossed. However, my honest free advice was to write to the LEA and ask them if they will amend by the 15th Feb in line with regulation 19. The good news is that "nennypops" agreed that this can be JR'd - which I thought was the case from my reading of the judgement in the case I mentioned above. If that is wrong then please do correct me. I would very much appreciate any advice that would help her. Clearly you are very experienced and may be able to assist. It is precisely this input that I was seeking and I welcome your help, as indeed my post requested with the opening word Help

Please note I have considered your question of “what was discussed at the last annual review” – I do not have that answer, - whilst I appreciate your point, the key question for her, If I have not misunderstood her, is when will she have the right of appeal.

If the 16th Feb arrives, and the amended statement does not, what should she do? That is the problem… How long do you wait? Do you as a parent accept that they (LEA) told you the annual review is planned for March… Do you as a parent keep waiting… How long?

Thanks in advance,

Manish.

lougle Mon 20-Jan-14 08:17:03

I wasn't suggesting you have crossed the wires smile I was suggesting that you have crossed wires - in other words that the parent may be worrying about something that may not be happening.

The parent needs to establish whether she has had advice/suggestion in the last annual review as to the most suitable school for year 7. The vast majority of children do not have an early annual review in Year 6 - they have an annual review in line with their normal review schedule in Year 5 and this is preparation for the transition to secondary school.

I wasn't presenting you with a formal challenge, as your reply infers, simply discussing and chatting through the issue, as we normally do on this discussion forum confused

lougle Mon 20-Jan-14 08:19:57

You said in your OP 'how very underhanded of the LA' - I was trying to point out that it is not underhanded, it's perfectly fine, as long as they do amend part 4 by 15th Feb.

Don't forget that the right to name a school is almost absolute for the parent, too.

OneInEight Mon 20-Jan-14 10:25:12

I think we are going to run into this problem with ds2. There are no schools in our LA that can meet his needs. We have requested an out of area placement but the LA does not appear to be consulting this one or any other as far as we are aware. We requested an emergency review in December but it looks likely even the planned annual review in February is going to be postponed as key people can not make the date fixed. His statement was only finalised last summer and secondary transition was not mentioned then. We were dubious about his current placement meeting his needs and unfortunately have been proved right as he is on a reduced timetable. We suspect they are delaying so they do not have to finance transfer this academic year.

GBSbaby Mon 17-Feb-14 16:52:42

I just came across this thread when I googled 'what happens if LEA fail to name school by 15th Feb'.

I emailed my LEA today to say I had received nothing in the post so could they tell me the name of the school anyway. I was gobsmacked to receive a reply saying they apologise for the delay and will forward her amended proposed statement to me by the end of the week and then once they receive our comments back on that they will name a school.

Our preferred school is a non-maintained independent special school. The Council have asked us and been told the school. Does the fact they have missed the deadline for naming a school (even though it was likely to be a maintained school that we would have challenged) help our fight to get her into the independent school in any way?

OneInEight Mon 17-Feb-14 17:14:22

I really don't know but I hope so because as predicted we are in the same position. They have agreed now to take ds2's case to panel for an out-of-borough placement but no date yet for panel meeting let alone a suggested school.

manishkmehta Mon 17-Feb-14 23:53:25

OneInEight & GBSbaby...

If the LEA have missed the date you have two options... Keep waiting,... yes, i know,... how long? Or write a very stern letter to the LEA... Or,... Get legal help... Basically my problem with the 15th Feb deadline is simple... If some parents get their statements by that date and others don't then those that don't end up at the back of the que for an appeal to the ftt... The bigger risk being that your case eventually gets listed in the new academic year,... I won't bore you with all the details on how this gets messy... But i would say you do want to avoid this situation arising.

If you want the letter i have given to a few parents then please do pm me... If you want a solicitor to sort it out then i can recommend Maxwell Gillott.

I would like to help more but it's bed time...

Good luck,
Manish.

mymatemax Tue 18-Feb-14 00:01:26

we have just received our amended statement, the only change being naming the school he is transferring to in Sept.
He will still have his annual review in June as normal.
They should still send out a draft amended statement for approval

AgnesDiPesto Tue 18-Feb-14 12:26:41

Unless they are vastly late I don't think it will alter chances of getting indi if LA refuse to name that. The issue is whether tribunal has time to hear it. I would suggest those waiting start preparing appeal docs. You can ask tribunal to shorten timetable so it is heard before sept. Fiona Slomovic advocacy and mediation partnership has info on her website I think about se

AgnesDiPesto Tue 18-Feb-14 12:31:29

Oops posted too soon..
... Secondary transfer appeals being heard within 12 weeks. Should also complain formally thru council website about delay so can go to LGO if delay further. Only a tribunal can decide placement but if delay means tribunal can't happen before sept LGO could make council provide remedy eg If leads to child being without school in sept.

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