Young people with SEN: Getting support at 16+ 18/10/2017 11:47

Too many young people with education, health and care (“EHC”) plans are wrongly being told they no longer qualify for support. As long as the educational support set out in the plan is still required, an EHC plan can continue until the age of 25.

For many young people (those aged 16-25), September marks the start of a new placement when they begin 6th form or college. For others, it could be the start of an apprenticeship or supported internship. But what does this mean for young people with EHC plans?

Some of the questions regularly asked on our helplines include:

  • Can a local authority (“LA”) remove an EHC plan simply because a young person is over 18 and/or they believe the young person has had enough time in formal education?
  • Can the LA remove an EHC plan if they believe the young person is not capable of making further progress and/or should have their needs met by social care instead?
  • What can you do if the LA tells you that they are going to remove the EHC plan or the college says they can’t return in September because the LA is removing the EHC plan?

What the law says

Section 45 of the Children and Families Act 2014 (“the Act”) says an LA may only cease to maintain an EHC Plan if it is no longer necessary for the EHC Plan to be maintained. The example given in the law is where the young person no longer requires the special educational provision (“SEP”) detailed in Section F of the EHC plan; in other words, the young person no longer needs the assistance they were previously given in order for them to participate in education or training. For those over 18 there is an additional requirement: when determining whether the young person no longer requires the SEP in the EHC plan the LA must consider whether the educational or training outcomes have been met.

The definition of SEP is contained in section 21 of the Act: it is education or training provision that is additional to, or different from, that made generally for others of the same age in mainstream schools or mainstream post-16 institutions in England.

There is no expectation that young people with EHC plans must be on a formal study programme, except in the broadest possible sense of a programme of education and/or training.  

Equally, there is no requirement for young people to attend a formal education setting in order to continue with a EHC plan. SEP can be provided ‘otherwise’ than through formal education, and section 61 of the Act provides for these circumstances, giving LAs the power to arrange for any of the SEP to be made otherwise than in a school, college or other setting.  Therefore, a young person could be educated or trained in a community based setting or start a supported internship or apprenticeship and still receive the SEP they require through an EHC plan.  

It is a common misconception that an LA doesn’t need to make or maintain an EHC plan for young people who have social care packages, or those who they believe should have a social care package rather than an EHC plan. In the case of Buckinghamshire County Council v SJ [2016] UKUT 254 (AAC), the LA carried out an EHC needs assessment of a young person who was living full-time in a care home. They refused to issue an EHC plan because in their view, the young person had made limited progress in previous education settings due to his severe learning difficulties and they argued his needs could be met by social care through continuing to live in the care home. 

The Upper Tribunal rejected the LA’s position that an EHC plan was not necessary due to the young person having a full time social care package, as the reality of his situation meant he could not access the SEP he required without an EHC plan, even in his care home. The Upper Tribunal also rejected any suggestion that the attainment of qualifications is an essential element of education stating:

“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.”

Your rights

If the LA say that they are going to cease to maintain the EHC plan or stop funding the placement you should seek immediate advice from IPSEA. It is important to note that, if the LA does say it is going to cease to maintain an EHC plan, this does not mean that the young person has to stop education immediately. The LA must continue to maintain (and fund) the EHC plan until the time limit for appealing to the tribunal has expired, which is 2 months from the decision or 1 month from the young person obtaining a mediation certificate, whichever of the two dates falls the latest. If the young person (or the parent on their behalf) appeals the LA’s decision, the LA must then continue to maintain the EHC plan until the tribunal makes a decision. Until this time, the LA is responsible for making sure the young person receives all of the SEP detailed in Section F of the EHC plan, and the placement specified in Section I must continue to admit the young person. This type of tribunal appeal also allows a young person to request amendments to the EHC plan if they wish, including a change of placement.

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