By Idhren Drew, Paralegal at SEN Legal
When dealing with EHC Plans and Annual Reviews in particular, we often hear that a Local Authority has sought to limit their funding commitment for an EHC Plan placement to a specific period of time, for example, “for one year only” or a ‘three year course’, particularly in further education settings where the young person involved is above compulsory school age. In fact, this flies in the face of current legislation, which provides safeguards and a clear framework for the limited circumstances in which an EHC Plan can be terminated.
Any Local Authority (‘LA’) seeking to limit a young person’s special educational provision in this way, by prematurely terminating their placement, would, in effect, be acting unlawfully.
As any parent whose child has an EHC Plan should be aware, that EHC Plan continues and is reviewed by way of an Annual Review every year, until the age of 25, unless the LA ‘cease to maintain’ it. By law, this requires a formal written notice of intention to ‘cease of maintain’.
Of course, the LA could serve notice that they are ‘ceasing to maintain’ the EHC Plan after any Annual Review, at any time during that young person’s education, whether primary, secondary, or higher education. However, if the Local Authority does take this step, the Children & Families Act 2014 (‘CFA 2014’) provides significant safeguards, namely:
Section 45(1) of the Act states that an LA can only cease to maintain an EHC Plan before a young person’s 25th birthday, if:
the authority is no longer responsible for the child or young person, (e.g. they no longer live in that LA’s area)
the authority determines that it is no longer necessary for the plan to be maintained.
Clearly then, the LA must be able to justify that the Plan is no longer necessary, i.e.:
“where the child or young person no longer requires the special educational provision specified in the plan” –section 45(2), and
“whether the educational or training outcomes specified in the plan have been achieved” –section 45(3).
But, what if despite this the LA did still decide to ‘cease to maintain’ the EHC Plan? In that event, the young person (and their parents) automatically gain a right of appeal to the Tribunal, and section 45(4) provides that the LA must not take any steps to terminate the EHC Plan in question until the Appeal is concluded. This section states:
(4) A local authority may not cease to maintain an EHC plan for a child or young person until;
(a) after the end of the period allowed for bringing an appeal under section 51 against its decision to cease to maintain the plan, where no such appeal is brought before the end of that period;
(b) after the appeal has been finally determined, where such an appeal is brought before the end of that period.
What this means is that if you do Appeal to the SEND Tribunal, the EHC Plan must continue until the Tribunal makes a final decision. The Decision is generally received 14 days after the Hearing, but bearing in mind time it takes for the Appeal process to be followed to its conclusion, you are potentially looking at almost another year in the placement anyway. It would be very unlikely then for the Tribunal to rule that the young person must finish ‘mid-academic year’.
Further, in the case of Buckinghamshire County Council v SJ [2016] UKUT 0254 (AAC), the Upper Tribunal held that an EHC Plan should continue where ‘small step’ progress is continuing that would be valuable in later life, also stating explicitly that no examination course or accredited course is required. This means that all you have to demonstrate to the Tribunal is that ‘small step’ progress is being made.
Regulation 31 of the SEND Regulations 2014 deals with the procedure that the LA must follow, in the event that it is considering a decision to ‘cease to maintain’:
First, the LA must inform you of their intention and consult with both you (and/or the Young Person) and the head of the College named in the EHC Plan.
If the LA then still takes the decision to ‘cease to maintain’, it must formally notify you and advise you of your right to Appeal to the Tribunal, the time limits, mediation etc., so the same as with any other Appeal to the SEND Tribunal, for example.
As a final point, even where a young person over 18 completes their educational program, so that the placement comes to an end naturally, the LA still cannot terminate their EHC Plan unless the conditions in Regulation 30 are met:
the LA has reviewed the EHC Plan (following the process set out in the Regulations); and
the young person does not wish to return to education and the LA has determined that it would not be appropriate for them to do so.
If you are concerned that your Local Authority are not following correct procedure when considering placement in an EHC Plan or require any help appealing against a decision to ‘cease to maintain’ an EHC Plan, please do not hesitate to contact us at customerservices@senlegal.co.uk – we can help.