On 21 February 2017, the Department for Education (DfE) published a guide for Local Authorities (LAs) on supporting 19-25 year olds with SEND (the Guide)
Overall, IPSEA welcomes the DfE’s guidance in what is a new and often misunderstood area of the Children and Families Act 2014 (CAFA 2014). However, IPSEA is concerned that the guidance creates a misleading picture and that it will be wrongly relied upon by LAs in preference to the CAFA and associated Regulations. IPSEA was consulted by the DfE in relation to the content of the Guide. Unfortunately not all of the recommendations suggested by IPSEA have been included in the guidance.
IPSEA is particularly concerned about the suggestion in the Guide that: “Young people with SEND are not automatically entitled to maintain their EHC (education, health and care) plans after they turn 19.” This is because every young person’s EHC Plan will continue unless and until:
IPSEA believes it’s important that LAs and young people are aware that the legal test in s.45 CAFA 2014 is one of necessity. The LA may only cease to maintain an EHC Plan if it is no longer necessary for the EHC Plan to be maintained.
One of the circumstances where it is no longer necessary to maintain the EHC Plan is where the young person no longer requires the special educational provision (SEP) detailed in the EHC Plan. Then, s.45 CAFA 2014 goes on to say that when determining whether the young person no longer requires the SEP in the EHC Plan the LA must have ‘regard’ to whether the educational or training outcomes have been met. Meeting educational or training outcomes can only be one aspect of the LA’s decision making and they will also need to consider whether the young person still has special educational needs for which special educational provision is required to be made under an EHC Plan.
This point was reiterated by the Upper Tribunal in the case of Buckinghamshire County Council v SJ  UKUT 254 (AAC), which confirmed the wide category of young people with SEND who might need an EHC plan. The Upper Tribunal: “...[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.” (Jacobs, paragraph 30)
Therefore, IPSEA was also concerned to see the suggestion, in the Guide, that "Young people with EHC plans are expected to be on a study programme focused on their education and training."
There is no expectation in law that young people with EHC Plans will be on a study programme except in the broadest possible sense of a programme of education and/or training.
SEP is education or training provision that is additional to, or different from, that made generally for others of the same age in:
(a) Mainstream schools in England,
(b) Maintained nursery schools in England,
(c) Mainstream post-16 institutions in England, or
(d) Places in England at which relevant early years education is provided (s.21 CAFA)
The definitions of education and training remain broad ones (the courts/Upper Tribunal have consistently refused to give them a tighter definition: DC & DC v Hertfordshire (SEN)  UKUT 0379 (AAC)).
Furthermore, it has always been the case that SEP can be provided ‘otherwise’ than in a school (EOTAS) and this provision continued in to CAFA 2014. By virtue of s.61, LAs have the power to arrange for any of the SEP to be made otherwise than in a school, college or other setting.
Indeed, we have seen an increase in young people seeking ‘education otherwise’ packages: firstly because further education is not suited to all needs and secondly, it does not cover 5 days each week. Many young people continue to require education over 5 days (as the introduction to paragraph 2 of the Guide acknowledges) and by having a combination of education within a college/other institution and EOTAS they are able to access what is needed.
If you want more information about EHC Plans you can find it through our resources on the IPSEA website.
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