We are now fast approaching the end of another academic year, and the (hopefully) lazy, hazy, crazy days of summer stretch out before us, but for some children and young people, the coming of summer has brought an unwanted letter to the doormat – a notice of the Local Authority ceasing to maintain their EHC Plan.
Strictly speaking, an EHC Plan can cease to be maintained at any point of the academic year, but the approach to summer appears to be a particularly busy time for this type of decision. This may be because Paragraph 9.207 of the SEND Code of Practice states that, “Support should generally cease at the end of the academic year, to allow young people to complete their programme of study.”
In line with this, we have recently received a huge volume of enquiries relating to ceasing to maintain an EHC Plan. In terms of the facts of these enquiries, there are two key trends emerging:
1. The likelihood of receiving a cease to maintain notification appears to significantly increase if you are a young person transitioning from Children to Adult Services and/ or transitioning from an educational placement which is registered to educated young people to the age of 19;
2. Of the numerous cease to maintain decision letters we have received, not one letter references the correct legal considerations for ceasing to maintain an EHC Plan, or follows the correct legal procedure. NOT ONE!
Section 45 of the Children and Families Act 2014 provides the Local Authority with the power to cease to maintain an EHC Plan. Ceasing to maintain an EHC Plan means that the Plan will come to an end, and the LA will no longer be under a legal duty to ensure that the educational provision specified in the EHC Plan is in place.
However, the Local Authority cannot cease to maintain an EHC Plan for any old reason. In fact, Section 45(1) of the Children and Families Act 2014 provides just two broad grounds for ceasing to maintain an EHC Plan;
The LA is no longer responsible for the child or young person
It is no longer necessary for the EHC Plan to be maintained
So, what does that actually mean?
The circumstances which would lead to a Local Authority no longer being responsible for an EHC Plan are generally much clearer in that it will be apparent whether the young person has a job, has gone to university, turned 25, has moved area or is over 18 and no longer wishes to remain in education.
However, in relation to “no longer wishes to remain in education”, in the case of a young person over the age of 18, you would need to consider whether the young person has the capacity to be able to make or communicate that decision. Disappointingly, we have on previous occasions seen Local Authorities try to cease to maintain EHC Plans under this ground in the case of young people who have then been found by the Court of Protection to not have the capacity to make such a decision.
Whether or not the EHC Plan is “necessary” is much more subjective and will vary on a case by case basis. After all, no child or young person is the same as another. However, broadly, an EHC Plan will no longer be necessary if they no longer need the provision in their EHC Plan, because their needs have changed.
When considering this, Paragraph 9.200 of the SEND Code of Practice provides that the Local Authority “must take account of whether the education or training outcomes specified in the EHC Plan have been achieved”. However, if the education or training outcomes have been met, even this does not give the Local Authority free reign to cease to maintain an EHC Plan, as they must first consider if further progress could be made, and if new outcomes should be set.
What can’t a Local Authority rely on to cease to maintain an EHC Plan?
This list is not exhaustive, as there could be any number of unlawful criteria a Local Authority may use to try to cease to maintain an EHC Plan. These examples below are reasons we have actually received:
1. The young person is now transitioning to Adult Social Care, which means his needs are now Social Care, not Educational.
WRONG, Section 21(5) of the Children and Families Act 2014 makes clear that provision which educates or trains a child or young person is Educational provision, not Health or Social Care provision, regardless of age.
2. The young person is now 19, which means that he no longer needs an EHC Plan.
WRONG, there is no such legal test.
3. The child or young person has finished their current course of education, so no longer need an EHC Plan.
WRONG, Paragraph 9.151 of the SEND Code of Practice makes clear that “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”
4. The young person is not working towards qualifications or employment, so their needs are Social Care needs, and an EHC Plan is no longer needed
WRONG, the case of Buckinghamshire County Council v SJ [2016] UKUT 254 (AAC) makes clear that the Courts reject “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.”
Where a Local Authority is considering ceasing to maintain an EHC Plan, there is a procedure which the Local Authority must follow;
It must inform the child’s parent or young person that it is considering ceasing to maintain the EHC Plan, and the reasons why.
It must consult with the child’s parent or young person about whether the Plan should cease to be maintained.
It must consult with the school or other institution named in the EHC Plan about whether the Plan should cease to be maintained.
Where the decision concerns a young person in receipt of Adult Services, the Local Authority must ensure that Adult Services are involved in the decision.
If the Local Authority decides after the consultation to cease to maintain the EHC Plan, they must:
Inform the child’s parent or young person, in writing, providing them with the Right of Appeal to the SEND Tribunal.
Inform the school or other institution named in the EHC Plan.
Inform the responsible Care Commissioning Group. Inform Adult Services.
Continue to maintain the EHC Plan until the Right of Appeal has expired, or, where an Appeal is submitted to the SEND Tribunal, until the Appeal has concluded.
Point 5 above is in bold for a very particular reason. That reason is that every cease to maintain decision letter we have received has attempted to depart from the legal timescales in which an EHC Plan can cease to be maintained.
The unlawful timescales we have seen vary greatly, but generally range anywhere from “15 days from the date of this letter” to “the end of the academic year”. Regardless of the timescale given, if the Local Authority try to cease to maintain the EHC Plan before the Right of Appeal has expired (two months from the date of the cease to maintain decision letter, or one month from the date of the Mediation Certificate, whichever is longer), or if the decision is Appealed, the end of the Appeal process, then they are acting unlawfully.
Under no circumstances can the Local Authority cease to maintain the EHC Plan until those timescales have elapsed. If you do not Appeal, that means the Local Authority cannot cease to maintain the EHC Plan for at least 2 months. If you Appeal, allowing time for an Appeal to the SEND Tribunal (currently roughly 12-16 weeks), the Local Authority must continue to maintain the EHC Plan for up to (and possibly more than) 6 months after the decision to cease to maintain the EHC Plan.
In the interim period, they must continue to provide all of the provision contained in the EHC Plan, including the educational placement named in Section I.
So, how can I support the children and young people who have received these notifications?
Ultimately, regardless of what you do, it may not be possible to change a Local Authority’s mind once they have started considering ceasing to maintain the EHC Plan, without an Appeal to the SEND Tribunal being required.
However, any paperwork you do produce can be used to support an Appeal. Therefore;
First and foremost, respond to a consultation fully, and in good time. When responding to the consultation, consider the legal tests for ceasing to maintain an EHC Plan. Has the child/young person achieved their outcomes? If they have, could further outcomes be reached if the provision were to remain in place?
Include as many professionals as possible. If the child or young person is in receipt of provision from external providers such as SALT or OT, take their view as to whether outcomes have been reached, and if further outcomes could be reached in their specific areas.
Be specific. Stay away from phrases like “X would benefit from a further year”. The law states a child or young person should get what they genuinely and adequately need, not just what would benefit them. Be clear on the young person’s needs, the provision they require, and the outcomes you would expect if the provision remains in place.
If the Local Authority are trying to cease to maintain the EHC Plan before the legal timescales, inform the child/young person/parents of the correct timescales.
If the Local Authority are attempting to cease to maintain an EHC Plan, and you think that the EHC Plan is still necessary, then we can assist the child/young person/parents in an Appeal to the SEND Tribunal with a view to requiring the Local Authority to cease to maintain the EHC Plan. As part of this Appeal, we can also consider the content of the educational sections of the EHC Plan (Sections B, F and I) during a cease to maintain Appeal, and, if necessary, rewrite those Sections based on the most up to date evidence.
If, in the interim, the Local Authority unlawfully stop providing the provision placement contained in the EHC Plan, we can help you get the provision put back in place to keep any disruption to an absolute minimum.