Case overview

This case relates to an adult with multiple special educational needs (SEN) whose local authority (LA) issued a cease to maintain notice under section 45 of the Children and Families Act (CFA) 2014.

This says that an LA may decide to cease to maintain an EHC plan where:

1. the LA is no longer responsible for the child or young person, or
2. the LA determines that it is no longer necessary for the plan to be maintained.

This includes where the child or young person no longer requires the special educational provision specified in the plan.

When determining whether a young person aged over 18 (as was the case here) no longer requires the special educational provision specified in their EHC plan, the LA must have regard to whether the educational or training outcomes specified in the plan have been achieved.

In addition, regulation 30 of The SEND Regulations 2014 provides for additional considerations for those aged 18 or over.

Following the cease to maintain notice, his parent as the alternative person brought a SEND Tribunal appeal against:

• the LA’s decision to cease to maintain the EHC plan
• section F of the plan, and
• what was said about social care in the plan.

The LA argued that the appropriate provision for the young person was blended provision with the transition to a social care package (not yet formulated) involving meaningful activity, relationship building, living near family, developing life skills and links with the world of work.

The SEND Tribunal dismissed the parent’s appeal. Having decided the LA’s decision to cease the plan was lawful, the SEND Tribunal said that it did not need to address changes to the EHC plan or recommendations for social care.

The parent appealed to the Upper Tribunal (UT) on 5 grounds:

Ground 1: Failure to make findings regarding the special educational provision required by the young person and/or failure to provide adequate reasons.

The UT agreed.

It looked at the SEND Tribunal’s decision and decided that there was not a clear finding of the special educational provision required, as is needed in these types of appeals. There wasn’t enough identification or consideration of what special educational provision was required.

Ground 2: Incorrectly focusing on the appropriate educational setting without first identifying the provision required.

The UT agreed. The SEND Tribunal focused on the appropriate setting to deliver education and training without identifying the special educational provision needed.

Ground 3: Failure to address the young person’s ability to make progress in meeting the outcomes in his EHC plan or the value of such progress to him and/or failure to provide adequate reasons.

The UT disagreed.

The SEND Tribunal had focused on what it considered to be the key points. It considered the young person’s outcomes and saw that they were not a useful indicator of whether an EHC plan is necessary, when looked at overall.

Section 45(3) CFA 2014 only requires the LA (or the SEND Tribunal in its shoes) to have “regard to” whether the education or training outcomes specified in the plan have been achieved. The SEND Tribunal did so and moved on to consider the wider question of whether the EHC plan was still needed.  

Ground 4 - Failure to consider whether the required provision would (rather than could) be made through a prospective, but not yet decided, adult social care package and/or failure to give adequate reasons.

The UT dismissed this ground.

The UT noted the need for a focus on reality (rather than the theoretical), but saw that there was no material difference between ‘would’ or ‘could’ in this context. In terms of whether the provision “could” or “would” be delivered by the social care package, the UT saw that what matters is whether there is a realistic prospect in a practical sense that the adult social care arrangement can achieve that aim. However, the key to assessing the suitability of an adult social care package was adequate conclusions on the special educational provision required, which was missing, As this had already been addressed in ground one, this ground added little to the appeal.

Ground 5 - Breach of regulation 30(1) of The SEND Regulations 2014. The SEND Tribunal did not properly have before it the young person’s views regarding returning to education or training.

The UT agreed.

Regulation 30

It looked at what regulation 30(1) of The SEND Regulations 2014 requires.

This says that the LA may not cease to maintain an EHC plan unless it has reviewed that EHC plan in accordance with regulations 18 and 19 and ascertained that:

1. the young person does not wish to return to education or training, either at the setting specified in the EHC plan or otherwise, or 
2. determined that returning to education or training would not be appropriate for the young person. 

Regulation 30 requires the LA to find out the young person’s wishes. It does not say how that is to be done. There may be occasions where it is more appropriate or necessary to obtain it from different sources or evidence, rather than getting it directly from the young person.

Regulation 19

The UT then turned to regulation 19 of The SEND Regulations 2014.

This says the LA must consult the young person and consider their views, wishes and feelings, and consider their progress towards achieving the outcomes specified in the EHC plan.

Regulation 19 simply requires consultation, not negotiation with an agreed outcome. Therefore, the LA can request input and if none is given, or if views are given, once consultation has taken place the LA can take a different or contrary view as long as it has acted in good faith and taken those views (where given) into account.

The LA considered that academic learning in certain areas was not likely to result in any further gains. The SEND Tribunal appeared to consider this meant returning to education or training would no longer be appropriate for the young person, but did not have independent evidence as to the young person’s views.  

The UT said the SEND Tribunal had made an error in law. Either approach of (1) focusing simply on the academic learning element and not the broader view of ‘education and training’ set out in statute, or (2) making a decision without first getting a view based on any element of the evidence that the young person didn’t want to return to education or training, was wrong.

The UT sent the matter back to the SEND Tribunal to be decided by a different tribunal panel to be reconsidered.

What does this mean?

For decisions on cease to maintain EHC plans:

• identifying and considering what special educational provision is required as the first step.  Only then can the LA or SEND Tribunal decide whether it is no longer required, or what the appropriate setting may be
• an LA (or the SEND Tribunal in its shoes) should ask itself whether a child or young person would meet the test for preparing and maintaining an EHC plan. If the answer is ‘yes’, an EHC plan would necessary under section 37(1) CFA 2014, it will be difficult for the LA or SEND Tribunal to reach a conclusion that it is no longer necessary for an EHC plan to be maintained
• considering whether outcomes have been achieved must not be treated as a ‘tick box’ exercise. The LA/ SEND Tribunal must properly have regard to whether the education or training outcomes specified in the plan have been achieved
• the LA/ SEND Tribunal must not focus simply on the academic learning element of education but must consider the broader view of education and training set out in section 2 and 15ZA(8) of the Education Act 1996 and section 21 of the CFA 2014, and
• if regulation 30 is relevant and the wishes of the young person have not been obtained during the appeal, then the SEND Tribunal should be proactive in seeking that input from the young person. 

The full decision for AB v East Sussex County Council [2024] UKUT 87 (AAC) is available online.

For more information, please see our pages on if your LA takes away your EHC plan, appealing to the SEND Tribunal, and annual reviews.