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 make sure that the special 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 it can only do so on two grounds, following consultation. There is no duty on an LA to cease to maintain an EHC plan, but it is a power that it has in two situations.

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

On this page, we explain what:

• process your LA must follow if it wishes to cease to maintain an EHC plan for your child or young person
• two grounds the LA can use to make its decision, and
• what happens once the LA makes its decision.

What process must my LA follow before it can make a cease to maintain decision?

Whichever of the two reasons the LA relies on to decide to cease to maintain the EHC plan, the LA must first follow a legal process. This is set out in regulation 31 of The SEND Regulations 2014. Your LA must: 

• inform you that it is considering ceasing to maintain the EHC plan, and
• consult with you as well as the head teacher or principal of the school or college named in the EHC plan. 

Your LA must have regard to your views, wishes and feelings (as well as your child’s) (section 19 CFA 2014), so make sure you express your views on the LA’s proposed decision.

Consultation with you, or your young person, and the setting is of fundamental importance. The LA must make sure it carries out the consultation, and lawfully. It cannot be a token exercise.

Having carried out this consultation, if your LA decides to cease to maintain the EHC plan it must then issue what is called a ‘cease to maintain notice’. This means your LA must write to you telling you that the LA wants to cease to maintain the EHC plan and setting out the reasons why.  It must also notify the setting named in the EHC plan and the health body.

If the LA does not follow these steps, or simply states that it is going to stop funding the EHC plan instead of issuing a cease to maintain notice:

• this is not lawful. This is because your right to appeal only arises when the LA has made a formal decision to cease to maintain the EHC plan. You should write to the LA requesting that it follows the correct procedure.
• Case law has also made clear that if an LA makes a decision to cease to maintain an EHC plan without following this process and the SEND Tribunal on appeal may decide the decision is not valid and set it aside.

You can book an appointment to speak with us for more advice if this has happened to you. 

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

In addition to the consultation duties explained above, there are extra duties that an LA must comply with if your child or young person is out of education.

Children and young people under 18 

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 make sure 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 (we explain this ground in more detail below).

This is set out in regulation 29 of The SEND Regulations 2014.

Young people 18 or over 

Where a young person aged 18 or over ceases to attend the educational placement 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 must for an annual review) and then it can only cease to maintain the EHC plan if:  

• it has found out that the young person does not wish to return to education or training at any setting, or  
• it has concluded that returning to education or training would not be appropriate for the young person.

This is set out in regulation 30 of the SEND Regulations 2014.   

If the young person wants to return to education but at a different setting, the LA must amend the EHC plan to name an appropriate setting (see our pages on choosing a school for more information). 

What are the two grounds on which an EHC plan can be ceased?

An LA can (but does not have to) cease to maintain an EHC plan, but only if one of two grounds applies. It cannot lawfully apply any other reason.

Ground 1 - the LA is no longer responsible for the child or young person 

LAs are responsible for children and young people in their area who the LA has identified as having (or possibly having) special educational needs (SEN) or who have been brought to the LA’s attention as having (or possibly having) SEN.

Being ‘in an LA’s area’ includes children and young people physically present in the area as well as children and young people who may have temporarily moved abroad or to a different area in England but remain ordinarily resident in the area. This will depend on each individual’s circumstances as to whether they are ‘ordinarily resident’.

An LA would no longer be responsible if: 

• the young person has taken up full-time paid employment (excluding apprenticeships) 
• the young person has started a higher education course (or other level 4 course) 
• 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 permanently outside England or permanently to a different LA.

Some key legal points on this ground are:

Turning 25 years old

If you are turning 25 years old, and your LA consults with you about ceasing to maintain your EHC plan, you can remind your LA that it can continue to maintain your EHC plan until the end of the academic year during which you turn 25 (section 46 CFA 2014). You may also like to refer to the Code (paragraph 9.207) which says:

“9.207 Support should generally cease at the end of the academic year, to allow young people to complete their programme of study. In the case of a young person who reaches their 25th birthday before their course has ended, the EHC plan can be maintained until the end of the academic year in which they turn 25 (or the day the apprenticeship or course ends, or the day before their 26th birthday if later).”

Temporarily leaving the area

Even if your child or young person temporarily leaves the LA’s area, the LA may still be responsible for them. If the LA remains responsible, it cannot use its legal power to cease to maintain the EHC plan on this ground.

Case law has said that when considering whether or not a child or young person is in its area, LAs must consider whether their absence means they are no longer ordinarily or habitually resident: and the duration of any absence alone won’t determine this. All the specific circumstances must be considered. If your LA consults with you about ceasing an EHC plan because your child or young person will be away from the LA area for a period of time, make clear all the relevant circumstances which show the LA remains responsible for them. This may include:

• housing arrangements (for example, keeping your home whilst being out of the area)
• contact arrangements (for example, for returning to the LA during the period of absence), and
• employment arrangements (for example, if the absence is temporary due to a parent’s work secondment or deployment).

In this situation, if you are making suitable alternative arrangements during the absence your LA could “pause” or “freeze” providing the EHC plan whilst your child or young person is physically out of the area but continue to maintain it.  

Ground 2 - it is no longer necessary to maintain the EHC plan 

Situations in which an EHC plan would no longer be necessary could include the child or young person no longer needing the provision set out in the EHC plan. This might be because their SEN have changed. 

As a first step the LA will need to identify and consider what special educational provision is required. Only then can it decide whether it is no longer required or what the appropriate placement may be.

The LA should ask itself whether the 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 to reach a conclusion that it is no longer necessary for an EHC plan to be maintained.

For a young person over 18, the LA must consider whether the educational or training outcomes in the EHC plan have been achieved. Considering whether outcomes have been achieved must not be treated as a ‘tick box’ exercise – the LA must have proper regard to whether they 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 school age, 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.  

Some key legal points on this ground are: 

• Case law has made clear that the tribunal will reject any suggestion that getting qualifications is an essential element of education. Getting qualifications may not be a young person’s goal but that does not mean that they do not require, or would not benefit from, special educational provision.  
• Case law has also confirmed that whilst any further achievements may be small, they will still be valuable for the young person in their adult life. 
• Case law has clarified that the LA 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. 
• Case law has made clear that 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 for an EHC plan to be necessary. 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 an essential prerequisite for an EHC plan.

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. 

You have a right of appeal against the decision to the SEND Tribunal. The appeal must be submitted within either two months of your LA’s formal decision to cease to maintain, or one month from the date on your mediation certificate, whichever is later. Our pages on mediation and appealing to the SEND Tribunal will provide you with helpful information on these topics.  You can also find detailed information on this type of appeal on our appeals against decisions to cease to maintain an EHC plan section.

If you decide not to appeal the decision, then the LA must keep the provision in place at least until your right of appeal has expired. 

If you decide to appeal the decision, then the LA must keep the provision in place at least until the appeal is finished. The EHC plan will only cease if the SEND Tribunal has made an order saying the EHC plan should be ceased. 

Similarly, the education institution named in Section I of the EHC plan must continue to let your child or young person attend and your LA must continue to pay any school fees (if relevant) until the right of appeal has expired or the appeal is finished.  

  

If you haven’t been able to find the answer to your question on this page, see our FAQs.