Our son is 19 and the LA say they plan to remove his EHC plan because his formal education is over and he is not capable of making further progress. Our son has profound and multiple disabilities and his college say they cannot have him back at the start of the September term. The LA say social care will have to help him. What do we do? Expand Parents and young people can feel pressured to rely on another service in place of an EHC plan, particularly when the young person is over the age of 19 or is not planning to remain in formal education. However, the test in law is about whether the special educational provision is necessary: in other words, needed. Special educational provision also includes ‘training’ which has a wide definition in law. Therefore, it is possible for an EHC plan to continue in settings other than formal education settings. If the young person continues to require special educational provision to be made for them, this is exactly what must happen. If the LA has sent a written notification of their plans, check the letter carefully as it could be a ‘cease to maintain’ notice meaning there will be a right to appeal their decision to the First-tier Tribunal (Special Educational Needs and Disability) (“the SEND Tribunal”). If this is the case, it is important to seek advice about appealing the decision. If the LA has only told you this verbally or written to say they are planning to cease to maintain the EHC plan in the future, you should write to them immediately to say you disagree with their plans and request their decision in writing, making clear that an appeal to the SEND Tribunal will be made and that you understand the LA is under a legal duty to maintain the EHC plan until the appeal has been decided. This means the LA must continue to provide the special educational provision detailed in Section F of the EHC plan and the named placement in Section I must continue to admit the young person. Once the LA has issued a ‘cease to maintain’ notice, your son (or you on his behalf) will need to make an appeal to the SEND Tribunal. The deadline for appealing is two months from the date of the decision or one month from the date of the mediation certificate, whichever date falls the latest. In the appeal, the burden is on the LA; it will have to show that the EHC plan is no longer necessary. As described on the main page for this section, it is not lawful for them to cease to maintain the EHC plan simply because he is over 19 and/or they believe he is not making sufficient progress.
Our daughter is 18. She wants to go to college next year but she is quite nervous about this, and has said she’d like to carry on getting the type of support she gets at school. At a recent annual review, the school said the LA would take away her EHC plan at the end of the year because she has now achieved all of the outcomes in Section E. The outcomes were set when she started secondary school and are very out of date. We don’t think this is fair but they have said these are the rules. Expand As described in the section about what to do if the LA takes away your EHC plan, the LA can only cease to maintain an EHC plan where they are no longer responsible for the child or young person, or provision in the EHC plan is no longer necessary. It does not sound like this is the situation here. It is correct that the LA must consider whether the educational or training outcomes specified in the EHC plan have been achieved when considering whether to cease an EHC plan for a young person who is aged over 18. However, this is just something they should take into account. They cannot cease the plan simply because the outcomes have (or have not) been achieved. The outcomes should have been amended as your daughter got older so they were still relevant. See the section on what an EHC plan should contain for more information. Your daughter should get the EHC plan amended so that it is relevant to her current needs and aspirations – the section on annual review has further information on how to do this. If the LA do decide to cease to maintain the EHC plan, or if they refuse to amend the plan so it is up to date, then your daughter will have a right of appeal to the SEND Tribunal.