SNJ Note: We’ve been hearing of increased attempts by local authorities to cease EHCPs at Post-16 stage. As we are approaching the deadline for post-16 transition EHCPs Nicole Lee, senior solicitor at SEN Legal has written a comprehensive article for us today about what to do if this happens to your young person, when they still need their plan.
Parents and young people are generally aware an EHC Plan can remain in force until the end of the academic year in which a young person turns 25 (Section 46 Children and Families Act 2014). However, much confusion is being caused by conflicting information given to families and settings by local authority staff, about the LA’s power to cease to maintain an EHC Plan. This can mean EHCPs are being ceased when there was no lawful basis for doing so.
After every Annual Review of an EHCP, an LA can decide to “cease to maintain” an EHC Plan. This can happen at any age and any stage of education. It is therefore crucial that at every Annual Review, the LA is told why the continued protection of an EHCP is necessary.
Anecdotally, however, the key “danger” points for ceasing an EHCP are:
- From age 18 / when the young person transfers from their first post-16 provision to the next, and
- At every post-16 to post-16 placement move thereafter.
These are the times we often see legally-deficient decisions to cease to maintain, based on the young person reaching adulthood, and the council’s view that the young person’s needs have morphed from being educational needs, to social care needs.
No magic shifting of needs
The law makes it clear there is no such magical shifting of how needs are categorised, based on age or stage of education.
Section 21(5) of the Children and Families Act 2014 defines educational provision as any provision which “educates or trains” a child or young person. The fact that the young person has reached legal adulthood does not change that definition, and as long as the provision is “educating or training” the young person, it remains special educational provision.
Children and Families Act S21 (5)21 (5)Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision).
What’s the legal basis for ceasing to maintain an EHC Plan?
Section 45 of the Children and Families Act 2014 sets out the legal basis for the ceasing of an EHC Plan. It states that;
(1) A local authority may cease to maintain an EHC plan for a child or young person only if—
(a) the authority is no longer responsible for the child or young person, or
(b) the authority determines that it is no longer necessary for the plan to be maintained.
(2) The circumstances in which it is no longer necessary for an EHC plan to be maintained for a child or young person include where the child or young person no longer requires the special educational provision specified in the plan.
A local authority will no longer be responsible for a child/young person if;
- A young person aged 16 or over leaves education to take up paid employment (including employment with training but excluding apprenticeships)
- The young person enters higher education
- A young person aged 18 or over leaves education and no longer wishes to engage in further learning
Please note that the SEND Code of Practice 2015 (which is guidance, not law), also states at Para 9.201 the local authority will no longer be responsible if “The child or young person has moved to another local authority area”. This is very misleading.
Moving to another LA is NOT a legal basis for ceasing an EHCP
If a child/young person moves to a different local authority area, this is not a basis for completely ceasing to maintain an EHCP. The Plan should be transferred from the previous local authority to the new resident local authority. The new local authority are then responsible for maintaining the EHC Plan as it is written moving forward, until there has been a re-assessment or review of the EHC Plan, and the correct procedure for ceasing to maintain the EHC Plan has been followed.
A local authority’s decision to cease to maintain an EHC Plan is most often based on an assertion that the EHC Plan is no longer necessary. I have therefore dedicated a section to the “necessity” of the continuation of an EHC Plan below.
The SEND Regulations 2014 go on to provide further guidance for ceasing to maintain an EHC Plan, contained in Regulations 29—31. For children and young people aged under 18, the LA cannot lawfully cease to maintain their EHC Plan “unless it determines that it is no longer necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.” (Reg 29(1)). If the child or young person is not in receipt of education or training, the LA cannot use this as a reason to cease to maintain the EHC Plan as a knee-jerk reaction. They must review the EHCP and if necessary, make amendments to it to ensure that they continue to receive education or training.
Have outcomes been achieved?
For young people over the age of 18, Section 45(3) of the Children and Families Act 2014 requires the local authority to “have regard to whether the educational or training outcomes specified in the plan have been achieved.” The regulations go on to dictate that the local authority cannot use the ending of their placement at a particular educational institution as a reason to cease to maintain the EHC Plan. They must review the EHCP and ascertain “that the young person does not wish to return to education or training, either at the educational institution specified in the EHC plan, or otherwise, or determined that returning to education or training would not be appropriate for the young person.” (Reg 30(1)). If as part of the review, the local authority finds that the young person does wish to remain in education/training, either at their current setting or somewhere else, and it is appropriate for the young person to do so, then the EHC Plan should continue, and be amended as needed to reflect the correct future provision and placement.
The procedure for a cease to maintain decision
If a local authority is considering ceasing to maintain an EHC Plan, there is a specific procedure to be followed. We find the correct procedure is very rarely adhered to by LAs. If the procedure hasn’t been followed, then the decision to cease to maintain has not been lawfully reached.
The procedure for ceasing to maintain an EHC Plan is set out in Regulation 31 of the SEND Regulations 2014, and expanded on in the SEND Code of Practice 2015. Regulation 31 says before a local authority can reach a final decision to cease to maintain an EHC Plan, it must first inform the parents and/or the young person that they are considering to cease to maintain the EHC Plan.
They must then consult both the parents/young person, and an appropriately senior person at the educational setting, as to whether the EHC Plan remains necessary, or should be ceased. There is no legal timescale for how long should be allowed for parents/educational settings to respond to the consultation. The LA’s notification should make clear when a response is required by, and the timescales for that response should be reasonable in the circumstances. For example, starting a consultation for two weeks when the LA know the setting is closed for three weeks, would not be reasonable.
While the the SEND Code of Practice is statutory guidance*, not law, it sets out additional requirements for consultations, which the local authority must have regard to. Para 9.208 requires that if a young person is in receipt of adult services, those services should be “involved in and made aware of the decision to cease the young person’s EHC plan.”
*Statutory guidance sets out what schools and local authorities must do to comply with the law. Agencies ‘must have regard’ to statutory guidance. It should be followed unless there is a very good reason not to.
If the local authority hasn’t followed the correct procedure, it may be possible to get the local authority to withdraw its decision, through the sending of a Pre-Action protocol letter. This would be very case specific, and legal advice should be sought from a qualified professional.
Also read: Phase Transfer deadline: what to do if your child’s EHCP isn’t finalised on time
The decision and the right to appeal: The right process
Once the correct notifications have been sent, and consultations completed, the local authority can then issue its decision whether to cease to maintain the EHC Plan. If the decision is to maintain the EHC Plan, then the local authority could either say the Plan will be maintained as currently written, which will generate an immediate right of Appeal to the Tribunal. Alternatively, if the EHC Plan is to be maintained, and amendments made, then an amendment notice should be issued.
If the decision is to cease to maintain the EHC Plan, then a right of Appeal will be given. The decision letter must give the following information;
- (a) the right to appeal that decision;
- (b) the time limits for doing so;
- (c) the information concerning mediation, and
- (d) the availability of—
- (i) disagreement resolution services; and
- (ii) advice and information about matters relating to the special educational needs of children and young people; and
- (e) the First-tier Tribunal’s power to make recommendations under the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017.
An appeal to the SEND Tribunal against a decision to cease to maintain doesn’t only cover the cease to maintain decision. You can also appeal against the contents of Sections B (need), F (provision) and I (placement) at the same time, as well as seeking recommendations over the health and social care sections.
Decision does not have immediate effect
The decision does not take effect immediately. We have seen many cases where parents and young people have been told that the EHC Plan will cease immediately, or at some specific date in the future. This is not correct.
Section 45(4) of the Children and Families Act 2014 provides that while there is an active right of appeal, the local authority must continue to maintain the EHC Plan. If an appeal is submitted, the LA cannot cease to maintain the EHC Plan until the appeal is concluded.
Cease to maintain appeals are therefore one of the few occasions where delay is in your interest. Parents/young people can utilise the full two months appeal timescales, and obtain the mediation certificate to extend the right of appeal to up to three months or more. You may even consider requesting mediation, as arranging a date could take up to a further 30 days, thus extending the right of appeal window even further. While this right of appeal is valid, the LA must continue to maintain the EHC Plan.
If you do not exercise the right of Appeal within the timescales, the local authority can then legally cease to maintain the EHC Plan. If an EHCP is later determined to be needed, you would likely have start back at the beginning with an EHC Needs Assessment request.
Use your right to appeal within the timescales and extend the support
It is therefore crucial that if you believe the EHCP remains necessary, you must submit your Appeal to the SEND Tribunal within the timescales. Do not be led astray by misinformation from the LA, educational setting, or any other person. If it turns out that the appeal is not needed after it is submitted, it can easily be withdrawn at no cost or penalty to you.
Once the right of appeal has been exercised, the LA have to continue to maintain the EHCP, including the provision in Section F and the placement in Section I, until the appeal is concluded. With Hearings at the SEND Tribunal currently being listed around a year ahead, simply by submitting your appeal as late as possible you’ll have secured the continued maintenance of the EHCP by over a year. If/when the SEND Tribunal delays improve, the overall timescale could reduce, but the general principle that delaying matters for as long as possible in cease to maintain cases will remain.
Where young people are older, and not far off the academic year in which they will reach the age of 25, you may find that the local authority are willing to simply withdraw the cease to maintain decision altogether, removing the need for an appeal at all.
Extreme caution should always be exercised if a local authority concedes an appeal, and I would strongly urge that parents/young people bring a conceded appeal to a conclusion by submitting a joint Consent Order to the Tribunal, rather than withdrawing the appeal. This will give the child/young person legal protection moving forward, and prevent the local authority from reneging on its position.
Necessity: When is an EHC Plan no longer necessary?
The issue of necessity in ceasing to maintain an EHC Plan has been considered by the courts in published case law, which set out how “necessity” could be approached in cease to maintain decisions.
B & M v Cheshire East Council [2018] UKUT 232 (AAC) advised at para 91 that
“there is an affinity between the test for deciding whether to cease to maintain an EHC Plan and the test for deciding whether an EHC Plan is to be prepared and maintained in the first place… a local authority should ask itself whether a young person would meet the test for preparing and maintaining an EHC Plan in the first instance. If the answer is ‘yes’, I do not see how a local authority could properly decide that it is no longer necessary for an EHC Plan to be maintained.”
B & M v Cheshire East Council [2018] UKUT 232 (AAC)
This applies the case law defining what “necessary” means in the context of issuing an EHCP in the first place, to decisions about ceasing to maintain EHC Plans. For a cease-to-maintain decision to be lawfully made, the local authority (and SEND Tribunal in an appeal), must therefore consider
- the child/young person’s needs as at the date of the Hearing
- the special educational provision required to meet those needs
- whether that provision would be delivered without the EHC Plan continuing.
The LA and Tribunal cannot correctly make or uphold a decision to cease to maintain an EHC Plan until it has established what the child/young person’s needs are, and the provision required to meet those needs. Without this information, they cannot lawfully determine an EHC Plan is no longer necessary, as it has not first satisfied itself that an EHC Plan is necessary.
Significant progress not required
The continuation of an EHCP does not require the child/young person to be in pursuit of any specific qualifications, or indeed to be in pursuit of any qualifications at all. Further, no particular level of progress is required. Even in cases where further steps of progress are projected to be small, this is sufficient for an EHCP to be necessary.
This was established in Buckinghamshire CC v SJ [2016] UKUT 254 (AAC), which determined an EHCP should be issued for a 20-year-old who functioned at a pre-school level, even though it was evidenced that “further achievements would be small”, as these small achievements would be valuable in SJ’s adult life.
As highlighted above, where a young person is over the age of 18, Section 45(3) of the Children and Families Act introduces an additional consideration when deciding whether an EHC Plan remains necessary. That is, “whether the educational or training outcomes specified in the plan have been achieved.” If all outcomes have been achieved, and there is no evidence to support that further outcomes or progress are capable of being achieved, that could support a local authority’s decision to cease to maintain the EHC Plan. Conversely, if there is evidence to show that further outcomes/progress can be achieved by the young person (no matter how small), and that progression is of value to the young person, there will be an argument that the EHC Plan should continue.
The recent case of EM v Royal Borough of Windsor and Maidenhead [2024] UKUT 317 (AAC) has further clarified that neither a qualification nor specific level of progress is required for the continuation of an EHC Plan to be necessary. At paragraph 45 of the decision, it was stated that;
“The crux of the FtT’s reasoning is that because a significant amount of special educational provision had been needed to achieve what they considered amounted to a small amount of progress, an EHC Plan was no longer necessary. The conclusion that the amount of learning must reach a certain degree in proportion to the amount of provision made for a EHC Plan to be necessary is not supported by the wording of section 45. Although the potential for learning may be a relevant factor as to the question of whether an EHC Plan is still necessary, a particular level of learning potential is not an essential prerequisite for an EHC Plan.”
This case further confirmed the approach of B & M v Cheshire East Council [2018] UKUT 232 (AAC), that when determining if an EHC Plan is necessary to continue, the Tribunal must first determine what provision is required to meet the child or young persons needs. At paragraph 47 of the decision, it is stated that:
“The FtT’s reasons did not address the question of what provision was necessary to enable EM to develop independence skills. The FtT’s reasons did not address whether that provision fell within the definition of special educational provision set out in section 21. It is difficult to see how the FtT could conclude that the necessary provision could be made by social care and without an EHC Plan without first addressing the question of what provision was necessary.”
Takeaways
What you can take away from the above, is that the local authority’s ability to cease to maintain an EHC Plan is not as simple as they may lead you to believe. The child/young person does not need to be pursuing qualifications or be aiming for significant progress, for the Plan to remain necessary. Small steps of progress which will be of value in adult life is sufficient for the EHCP to be necessary if the child/young person continues to need special educational provision for that progress to be made.
The simple act of appealing the LA’s decision to cease to maintain the EHC Plan will extend the life of the EHC Plan until the Tribunal has concluded. With current timescales, that will be a year or more. After an appeal, the EHCP can only be ceased if the Tribunal has determined it is no longer necessary. With the right evidence, there is every possibility that the local authority would be made to maintain the EHC Plan moving forward.
Top Tips
- If the correct procedure for ceasing to maintain an EHC Plan isn’t followed, you may be able to challenge and overturn the decision.
- At every Annual Review meeting, ensure information and evidence is included that illustrates the child/young person’s capability to achieve further outcomes/progress. This is particularly important from age 18 onwards as this is when we see the most cease-to-maintain decisions.
- Extend all timescales for submitting your appeal to the maximum possible. The EHCP cannot be ceased while you have a right of appeal, and then until the appeal is concluded. This can extend the EHCP from anywhere between 2-15 months depending on the hearing date.
- To support your appeal that the EHCP is necessary, you must obtain evidence to show what the child/young person’s needs are and the provision required to meet those needs
- Any provision that educates or trains a child/young person is special educational provision, not health or social care provision. Look at the effect of the support. If it educates or trains, then it should be educational provision in Section F of the EHCP.
- If the LA reverses its decision after the appeal is submitted, do not withdraw the appeal. Apply for a Consent Order to formalise the decision, and give you legal protection moving forward.
- An appeal to the SEND Tribunal against a decision to cease to maintain does not only cover that decision. You can also appeal against the contents of Sections B (need), F (provision) and I (placement) at the same time. You can also seek recommendations about the health and social care sections.
- A completely free webinar about ceasing to maintain an EHC Plan can be found here SEN Legal Webinars – Ceasing to Maintain an EHC Plan
About Nicole Lee
Nicole Lee is a Senior Solicitor and Head of the Legal Team at SEN Legal. She has also been named as a Rising Star in the Legal 500. Nicole represents parents in complex SEND Tribunal appeals and will very often act in matters which have a complicated social care element, including where there are child protection concerns. Nicole is also an expert in EOTAS provision.
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Also read:
- EOTAS: Education Otherwise Than At School. What is it, and can I get it?
- SEND Law right now. And why you mustn’t confuse EOTAS with home education
- Post-16: mental capacity and the SEND Tribunal
- Does the SEND Tribunal have to pay attention to the views, wishes and feelings of the child?
- Four practical tips for enforcing the ‘absolute duty’ to secure special educational provision in EHCPs
- What’s the law when a council says it can’t comply because of resource issues, though it’s “trying its best”
- What can the SEND Tribunal do if a local authority misses an EHCP appeal deadline? A case study.
- 10 top tips for moving local authority with an EHCP
- How to help our children: 10 top tips from parents for SEND Case Officers
- Beyond EHCPs: Why Inclusion Needs More Than a Document
- The Unacceptable Truth: 20 SEND legal rights at risk from the Government’s SEND reforms
- How health and family support systems are failing children starting school
- WEBINAR RECORDING! The implications for children’s legal rights to EHCPs and EOTAS of the Government’s SEND proposals
- When things go right: Shining a light on SEND Practitioners making a positive impact [Giveaway!]
- From suspicion to support: why the Government’s child protection reforms matter for disabled children
- Have your say on the future of transport for disabled children and young people
- Unison voices major concerns over SEND reform health plans for sick and disabled children out of school in the EOTAS consultation
- Top Tips for the EOTAS & EHCP consultation: Protect your child’s rights to statutory SEND support
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- When the LA wants to cease to maintain an EHCP: The law and some top tips - February 5, 2025
- EOTAS: Education Otherwise Than At School. What is it, and can I get it? - November 2, 2021
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Hi, we found ourselves in a position, where after an AR, the only FE College in our area, closed their doors to our young adult, with an active EHCP, naming the College in it, where they wanted to stay, after 3 yrs attendance. They claimed they had nothing to offer! Our LA allowed that to happen, without challenging them, and forced us to secure it SEN Provision “out of area”