Case summary

This case concerned an adult with an EHC plan who was attending their named setting. The local authority (LA) issued a cease to maintain decision, as it considered their needs could be met by social care (based on a Care Act 2014 assessment).

Section 45(1) of the Children and Families Act (CFA) 2014 says an LA can decide to cease to maintain an EHC plan only if the LA is no longer responsible for the child or young person, or the LA determines that it is no longer necessary for the plan to be maintained.

Section 45(3) of the CFA 2014 says, when deciding whether an adult 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.

Their parent (as the alternative person) appealed the LA’s decision to the SEND Tribunal. The SEND Tribunal dismissed the appeal.

The SEND Tribunal said the young person had achieved the outcomes specified in their EHC plan and the parent’s evidence was focused on what the young person’s needs were and what was the appropriate placement, rather than whether the outcomes had been achieved - so largely ignored it.

It said the young person was capable of gaining some skills and a less structured and less formal ‘setting’ was needed.

The parent appealed to the Upper Tribunal (UT). The UT said the SEND Tribunal had made legal errors.

The SEND Tribunal had not properly identified the young person’s special educational needs or the provision required to meet those needs, however:

• it had the evidence for this from the parent, which the SEND Tribunal had hardly considered because it did not focus on outcomes, and
• it appeared to have accepted the young person continued to require special educational provision, because it saw they had more to learn and was capable of gaining some skills that would be of benefit to them in adult life but didn’t decide what they should be learning and what skills they needed to get.

This meant the SEND Tribunal could not decide the question in section 45(1) CFA 2014 - whether it was no longer necessary for the EHC plan to be maintained. It could not say whether the social care programme would deliver what the young person required so that an EHC plan was not necessary.

The UT also looked at section 45(3) CFA 2014 and made clear that this does not mean where outcomes have been achieved, it is no longer necessary to maintain the EHC plan.

The UT sent the case back to the SEND Tribunal to be decided again.

What does this mean?

Section 45 CFA 2014

• There is a similarity between the test for deciding whether to cease to maintain an EHC plan (in section 45 CFA 2014) and the test for deciding whether an EHC plan is to be prepared and maintained in the first place (in section 37(1) CFA 2014). 

• 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 (a point confirmed in later case law). 

• The achievement of outcomes may indicate that a young person no longer requires the special educational provision specified in an EHC Plan and that it is no longer necessary to maintain the plan, but not necessarily. This will depend on a range of considerations including that person’s special educational needs, their aspirations, the reasons why outcomes were achieved and whether the young person’s special educational needs profile has changed as they have matured. 

• LAs should carefully consider whether they have sufficient up to date information about a young person before deciding to cease to maintain an EHC plan.  A social care assessment will not be sufficient as it will identify care needs, not special educational needs and provision. 

• Getting formal qualifications is not an integral part of education, relatively small degrees of educational progress do not make an EHC plan unnecessary, and the LA (and SEND Tribunal on appeal) should consider whether a child or young person could make further progress. These points were confirmed in later case law.

Regulation 30(1) of the SEND Regulations 2014

Here the young person was still going to their named setting. However, the UT looked at what would have been the case if they had stopped attending their setting, and said regulation 30 would have applied.

Regulation 30 of The SEND Regulations 2014 says that LA may not cease to maintain EHC plans for young people aged 18 or over who have stopped attending their named placement and aren’t receiving education or training until a review has been carried out of the plan and the LA has found out either:

• the young person doesn’t want to return to education or training, or
• it would not be appropriate for them to do so.

If they want to return to education and it would be appropriate for them, then the LA must amend the plan, not cease it.

You can find the full case summary for B & M v Cheshire East Council [2018] UKUT 232 (AAC) online.

Please see our pages on if your LA takes away your EHC plan, appeals against a cease to maintain decision and young people for more information.