My child has an EHC plan. As a family we are going abroad for a while for my work. We are planning on coming back to our area. What will happen to their EHC plan whilst we are abroad?

Before we answer the question, let’s look at the law that applies when a child has special education needs and an EHC plan is in place for them.

When is an LA responsible for a child with special educational needs?

A local authority (LA) is responsible for children and young people who:

• have been identified by the LA or brought to its attention
• have or may have special educational needs, and
• are in its area.

This is set out in section 24 of the Children and Families Act (CFA) 2014.

When can an LA decide to cease to maintain an EHC plan?

When there is an EHC plan in place, an LA cannot decide to cease to maintain (stop) it unless one of two grounds applies. These are that either 1) the LA is no longer responsible for the child or young person, or 2) the LA decides it is no longer necessary for the plan to be maintained (section 45 CFA 2014).

Even if one of those grounds does apply, the LA does not have to cease to maintain the plan and can decide to continue maintaining the plan. The LA may decide to cease to maintain the plan but does not have to.

Can a child be ‘in the LA’s area’ even if they temporarily leave it?

Yes. If your child is due to temporarily leave the area, your child will not be physically in the LA’s area. However, your child may still be what’s called ‘ordinarily resident’ in the LA’s area. If so, the LA remains responsible for your child, and this means it cannot decide to cease to maintain the EHC plan.

Recent case law has made clear that if a child or young person with an EHC plan goes abroad or to a different part of England, even for lengthy periods of months or years, they can be considered ‘ordinarily resident’ in the LA’s area. This will depend on the facts in each situation.  If you are keeping your house in the area whilst you are away, the job abroad is for a fixed termed contract, you will return to the LA’s area for schooling, this all suggests that your child may be ‘ordinarily resident’ in the area.

What can the LA do whilst you are out of the country?

Your LA must maintain your child’s EHC plan if your child is ‘ordinarily resident’ in the LA area. 

While you are away and making suitable alternative arrangements for your child’s education, the LA can decide to “pause” or “freeze” your child’s EHC plan until you return. For this reason, before you travel it’s a good idea to let your LA know:

• when you are moving away
• why your child remains ‘ordinarily resident’ – point out all the facts showing you intend to return to the LA’s area, and
• if you can, when you intend to return to its area.

If you need more support, please contact us for advice.