Our son is 19 and the LA says it plans to remove his EHC plan because his formal education is over and he is not capable of making further progress.

Parents and young people can feel pressured to rely on another service in place of an EHC plan, particularly when the young person is over the age of 19 or is not planning to remain in formal education.

However, when we think about whether a child or a young person still requires an EHC plan we need to look at whether the special educational provision set out in it is necessary, or in other words, needed. This is what we call the “test” in law, and LAs must apply it. It is important to remember that special educational provision relates to education and  ‘training’. The term ’training’ has a wide definition in law and can relate to things like social and vocational training. Therefore, it is possible for an EHC plan to continue in settings that are not formal education settings. If the young person continues to require special educational provision to be made for them, this is exactly what must happen.

As your son is a young person, your LA should be writing and speaking with him directly and he should be acting for himself. That said, you can represent him if he is unable to make decisions for himself under the Mental Capacity Act 2005, or he has asked you to help. We have helpful information about this on our pages about young people aged 16-25.

If your LA has sent a written notification of its proposal to remove the EHC plan, it is important to check the letter carefully as it could be a ‘cease to maintain’ notice. If it is called a ‘cease to maintain’ notice this means that your son will have a right to mediate and appeal this decision to the SEND Tribunal. If this is the case, it is important to get advice about appealing the decision.

Before sending a ‘cease to maintain’ notice, LAs have a legal duty to consult with the young person (or parents, in the case of a child) and the education setting. This is set out in regulation 31 of The Special Educational Needs and Disability Regulations 2014. If your LA did not do this then it has acted unlawfully; your son should ask it to withdraw the ‘cease to maintain’ notice in writing and start the consultation process immediately.

If your LA has only stated its intention verbally or written to say it is planning to cease to maintain the EHC plan in the future, your son should write to it immediately to:

1. say he disagrees with its plans and why the EHC plan is still needed
2. remind your LA of its legal duty to consult with him (you can help if he would like), and his college, on the LA’s intention to cease to maintain the EHC plan, before making its final decision 
3. request that your LA starts that consultation process without delay
4. remind your LA that when considering whether to cease to maintain an EHC plan of a young person aged 18 or over, your LA must also consider whether the educational or training outcomes specified in the plan have been achieved. He should highlight all the outcomes specified in the plan which have not been achieved, and/ or make the LA aware of any new outcomes which are not set out in the EHC plan but should be
5. require your LA to send to him its decision in writing as soon as it has made it, and
6. inform your LA that, should it issue a ‘cease to maintain’ notice following consultation,  he understands it is under a legal duty to maintain the EHC plan until either the time to make an appeal has passed or the appeal has been decided and the SEND Tribunal ordered for the plan to be ceased. This means your LA must continue to provide the special educational provision detailed in Section F of the EHC plan and the named placement in Section I must continue to admit your son.

If the LA  does issue a ‘cease to maintain’ notice, your son will need to make an appeal to the SEND Tribunal. If your son cannot make his own appeal because he does not have capacity under the Mental Capacity Act 2005, you or another representative can do so on his behalf.

The deadline for appealing is two months from the date on the decision letter or one month from the date of the mediation certificate, whichever date falls the latest. Your son (or you on his behalf) will need to consider mediation. He will have the right to it, but does not have to participate in mediation if he does not want to. He can simply tell the mediation advisor that he does not want to participate in mediation and they will issue him with a mediation certificate.

In an appeal against a cease to maintain decision, your LA will be required to show it applied the right legal test and has evidence to show the test is met.  This means it will have to show that the EHC plan is no longer necessary. However, although it will be for the LA to show the EHC plan is no longer necessary, it would still be a very good idea for your son to put forward to the SEND Tribunal any evidence he has to show that the plan is, in fact, necessary. As set out on our main page on this topic, it is not lawful for the LA to cease to maintain the EHC plan simply because he is over 19 and/or it believes he is not making sufficient progress.

If/when an appeal is brought, it  would be a good idea for your son to consider appealing the contents of the EHC plan as well as the LA’s decision to cease to maintain it. That way, if his appeal is successful and the LA is ordered to continue to maintain the plan, it will contain up to date and relevant information on your son’s special educational needs and provision. He could also consider asking the SEND Tribunal to make recommendations on the health and social care sections of the EHC plan.