Case summary

The local authority (LA) issued a cease to maintain decision for a young person’s EHC plan. The LA said he was not able to access formal education at his special school, he would not benefit from further special educational provision, and would be better supported in an adult care environment.

As his alternative person, his parent appealed this decision in the SEND Tribunal but the appeal was dismissed. The SEND Tribunal saw that some progress towards the young person's outcomes had been made but only as a result of intensive adult support. It also said that if he stayed in education he wasn’t likely to develop independence or employment skills beyond what he could achieve with a social care routine, due to “deep seated difficulties”. It claimed there was no evidence of “significant learning potential”.

The parent appealed this decision to the Upper Tribunal, and it decided that the SEND Tribunal had made a legal error in both how it applied section 45 of the Children and Families Act (CFA) 2014 and by failing to give adequate reasons for its decision. As such, the appeal was sent back to the SEND Tribunal to be reheard.

Section 45 CFA 2014

The Upper Tribunal said that when looking at whether EHC plans can be ceased, the test is one of necessity.

When considering whether an EHC plan may still be necessary, the potential for learning may be a relevant factor. A specified amount of learning potential is not – the amount of potential can be (relatively) small.

The SEND Tribunal had not said the young person had no potential for future learning – only that he was unlikely to get certain skills beyond what a daily living or care routine might develop. So he still had some potential for learning.

The SEND Tribunal appeared to think that because a lot of special educational provision had been needed to achieve (what it considered) small progress an EHC plan wasn’t needed, and that was the wrong approach. The Upper Tribunal said “a particular level of learning is not an essential prerequisite for an EHC Plan”.

Adequate reasons

The SEND Tribunal’s reasoning did not make clear why it reached its decision that an EHC plan was not necessary. It didn’t consider or give a conclusion on three key areas of dispute:

• What provision was necessary to help the young person develop independence skills.
• Whether the necessary future provision was special educational provision.
• Whether that provision could be provided without an EHC plan.

What does this mean?

Is an EHC plan still necessary?

In deciding whether to cease to maintain an EHC plan under section 45(b) CFA 2014, the LA must look to see whether a young person would meet the test for preparing and maintaining an EHC plan in the first place.

When looking at necessity, an LA (or the SEND Tribunal in its place) must look at the individual facts as well as the reality of the situation.

There is no need for a particular level of learning potential or skill set.

The law does not require:

• a significant or otherwise particular level of learning potential to ‘justify’ provision
• the getting of qualifications as an element part of education, or
• a certain type of skills to reach a certain level. Training in a vocational skill or practising for an academic exam may be educational, but so is learning daily living skills or independence.

If an LA has issued a cease to maintain decision or is consulting about ceasing an EHC plan, parents and young people should gather any evidence they have of future learning potential, why a plan is still needed, and the benefits the child or young person will get from education or training.

It would be a good idea to also consider whether the plan’s contents need to be improved at the same time (so the plan is up to date going forward should the LA change its mind or its decision is overturned on appeal).

A reminder of the distinction between section 21(1) and section 21(5) CFA 2014

This case reminds us that support can be educational provision even if does not actually educate or train the child or young person (EAM v East Sussex County Council [2002] UKUT 193 (AAC)). It is only in respect of health or social care provision that it must in fact educate or train the child or young person in some way in order to be special educational provision. 

Adequate reasons

This case also highlights that the SEND Tribunal must address and make a decision on all factual disputes necessary to reach its overall decision. That way, the unsuccessful party will know why their case on each disputed element has been rejected. If it does not, then this failure to give adequate reasons will mean the SEND Tribunal has made a material error of law.

You can find more information on challenging these decisions on our website as well as where you can get help.

The full decision for EM v Royal Borough of Windsor and Maidenhead: [2024] UKUT 317 (AAC) can be found online.