What to do if the LA takes away your EHC plan

When a local authority (“LA”) decides to take away, or end, an education, health and care (“EHC”) plan, this is called ‘ceasing to maintain’ the EHC plan. This means that the EHC plan will come to an end and the LA will no longer have the legal duty to ensure that the educational provision specified in the EHC plan is received by the child or young person.

When can the LA cease to maintain an EHC plan?

An LA may decide to cease to maintain an EHC plan at any time, but they can only do so on certain grounds:

• If the LA is no longer responsible for the child or young person; or
• If it is no longer necessary to maintain it.

These are the only legal reasons for ceasing to maintain an EHC plan (they are set out in section 45 of the Children and Families Act 2014).

An LA would no longer be responsible if:

• the young person has taken up paid employment (excluding apprenticeships);
• the young person has started higher education (university);
• a young person aged 18 or over has left education and no longer wishes to engage in further learning;
• the young person has turned 25; or
• the child or young person has moved to a different LA.

Situations in which an EHC plan would no longer be necessary could be because the child or young person no longer needs the provision set out in the EHC plan (because their needs have changed).

For a young person over 18, the LA must have regard to whether the educational or training outcomes in the EHC plan have been achieved. If they have not, that is an indication that the special educational provision should continue. However, the LA cannot cease to maintain an EHC plan just because the outcomes have been achieved – they should consider whether it is necessary for new outcomes to be set.

The SEN and Disability Code of Practice (the “Code”) says that LAs must not cease to maintain the EHC plan simply because the young person is aged 19 or over (paragraph 9.200). LAs should also not cease to maintain just because the young person has finished their current course at school or college; “Young people with EHC plans may need longer in education or training in order to achieve their outcomes and make an effective transition into adulthood” (paragraph 9.151).

The LA should not introduce additional criteria for continuing EHC plans after the end of compulsory schooling, such as requirements for the young person to be working towards qualifications, employment or independent living. Not all young people will be able to achieve these things, but this does not mean their support should be taken away. In Buckinghamshire County Council v SJ [2016] UKUT 254 (AAC) the Upper Tribunal made clear that it rejected “any suggestion that the attainment of qualifications is an essential element of education. For many of those to whom the 2014 Act and Regulations apply, attaining any qualifications at all is not an option. That does not mean that they do not require, or would not benefit from, special educational provision.” In this case there was: “no doubt, that any further achievements would be small. That does not mean that they would not be valuable for [the young person] in his adult life.”

Can the LA cease to maintain the EHC plan because the child or young person is out of education?

Where a child or young person under 18 is excluded from their education or training setting or leaves voluntarily, the LA should try to re-engage the young person in education or training as soon as possible. It must review the EHC plan and amend it as appropriate to ensure that the young person continues to receive education or training (see paragraph 9.202 of the Code). The LA can only cease the EHC plan if it decides that it is no longer necessary for special educational provision to be made for the child or young person.

Where a young person aged 18 or over ceases to attend the educational institution specified in their EHC plan, again the LA cannot simply cease to maintain that EHC plan. It must first hold a review (following all of the steps it should for an annual review) and then it can only cease to maintain the EHC plan if it has ascertained that the young person does not wish to return to education or training at any setting, or the LA has determined that returning to education or training would not be appropriate for the young person (Regulation 30 of the Special Educational Needs and Disability Regulations 2014). If the young person wishes to return to education at a different setting, the LA must amend the EHC plan to name an appropriate setting (see the section on choosing a school for more information).

What procedure must the LA follow?

For whatever reason the LA decides to cease to maintain the EHC plan, the LA must first:

• consult with the child’s parent or young person as well as the head teacher or principal of the school or college being attended;
• issue what is called a ‘cease to maintain notice’ – this means a notice in writing to the parent or young person telling them that the LA wants to cease to maintain the EHC plan and setting out the reasons why.

If the LA does not follow these steps, or simply states that they are going to stop funding the EHC plan rather than issuing a cease to maintain notice, this is not lawful. This is because the parent or young person’s right to appeal only arises when they have made a formal decision to cease to maintain the EHC plan. You should write to the LA requesting that they follow the correct procedure. You can book an appointment to speak with us for more advice if this has happened to you.

Will the provision stop straight away?

If a cease to maintain notice is issued, the LA is not allowed to simply stop funding the provision straight away.

The parent or young person has a right of appeal to the SEND Tribunal. The appeal must be lodged within either two months of the LA’s decision to cease to maintain or one month from the date of the mediation certificate, whichever is later (see the sections on mediation and appealing to the SEND Tribunal for more information). The LA must keep the provision in place at least until this right of appeal has expired.

If the parent or young person appeals against the LA’s decision, then the LA must keep the provision in place until the appeal is finished.

Similarly, the education institution named in Section I of the EHC plan must continue to admit the child or young person until the right of appeal has expired or the appeal is concluded.

 

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