AB v East Sussex County Council [2024] UKUT 87 (AAC): The SEND Tribunal’s decision to uphold a local authority’s (LA) cease to maintain decision was unlawful. The Upper Tribunal (UT) confirmed that:

  • the first step is to identify and consider the special educational provision required before moving on to considering 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 in the first instance. 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 SEND Regulation 30 is relevant (due to the young person being 18 or over, not attending their placement and not receiving education or training) and the wishes of the young person have not been obtained, then in an appeal the SEND Tribunal should be proactive in seeking that input from the young person.

B & M v Cheshire East Council [2018] UKUT 232 (AAC): A local authority (LA) argued that it was allowed to cease to maintain an EHC plan because the young person had achieved the outcomes in the plan. The Upper Tribunal (UT) considered that this was not, in itself, enough to cease to maintain an EHC plan, and that 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. The UT also gave guidance on regulation 30(1) of The SEND Regulations 2014, which sets out circumstances in which an LA may not cease to maintain an EHC plan where the person is aged 18 or over.

EM v Royal Borough of Windsor and Maidenhead: [2024] UKUT 317 (AAC): The LA decided to cease to maintain a young person’s EHC plan and the reasons for this decision were that  he would be better supported in an adult care environment, he had received intensive provision and made (relatively) small progress, and future progress would not be significant. The Upper Tribunal confirmed that when considering if an EHC plan is necessary, the law does not require a person to be able to reach a certain level of progress or for certain skills to reach a particular level. A decision to cease an EHC plan cannot be based on whether the person’s level of progress justifies or is in proportion to the amount of provision. The potential for learning may be a relevant factor when thinking about necessity but a specified amount of potential is not: a particular level of learning potential is not essential for an EHC plan to be needed. This case also covers the requirement for the SEND Tribunal to provide adequate reasons for its decisions.

Hampshire County Council v (1) GC (2) GC (SEND): [2024] UKUT 128 (AAC): In this case, the Upper Tribunal:

  • decided that a decision to cease to maintain, or stop, an EHC plan will be invalid if it is taken in breach of the procedural requirements of regulation 31 of The SEND Regulations 2014 disadvantaging the parent/young person
  • dealt with what being in a local authority’s (LA) area means for the purposes of an LA being “responsible” for a child or young person under the Children and Families Act (CFA) 2014.  Being in an LA’s area may involve physical presence, but this isn’t the definitive test: The question involves considering whether the child or young person is ordinarily or habitually resident in that area (even if there is a temporary absence – in this case, caused by the parent’s deployment overseas as part of the Royal Navy), and 
  • confirmed LAs always have discretion under section 45 CFA 2014 to continue to maintain a plan where they are “no longer responsible” for a child or young person. In this case, that discretion didn’t apply because the child was found to still be in the LA’s area.  Where the LA remains responsible for a plan but the child or young person is absent from the area overseas, then the LA could simply maintain the status quo pending the family’s return to the UK. 

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Author: Emma Brock

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