In this issue, we focus on a decision of the Upper Tribunal (August 2021) – responsible for dealing with appeals against decisions made by the First-tier Tribunal (Special Educational Needs and Disability) – which concerned local authorities’ power to maintain an Education Health and Care (EHC) plan after a young person’s 25th birthday. We take this opportunity to examine the rights of children and young people with special educational needs and disabilities that relate to EHC plans. We also summarise the statutory duties designed to make sure that children and young people with special educational needs and disabilities are heard, that their wishes and feelings are considered, and that they are enabled to actively participate when decisions are made about them and their lives.
First-tier Tribunal (SEND) should consider local authority power to maintain an EHC plan until the day before a person’s 26th birthday when considering special educational provision
This Upper Tribunal decision relates to a young person referred to as J. J was receiving special educational provision in line with his Education Health and Care (EHC) plan and he appealed to the First-tier Tribunal when it became clear that he would not be able to complete his training without the local authority emending his EHC plan and maintaining it after his 25th birthday. J’s solicitor argued that J’s EHC plan should be extended (beyond his 25th birthday) because, due to the COVID-19 pandemic, a supported internship at a museum which J was meant to complete had been restricted to remote working and reduced hours. The supported internship was “a key part of special educational provision for J” and was described by his solicitor as “ideal for [J] and which offered significant opportunities for him to develop”. While the First-tier Tribunal agreed that the circumstances of the pandemic were exceptional and beyond J’s control, it concluded that it lacked the power to order the responsible local authority to extend J’s EHC plan, whatever the circumstances.
J’s appealed against the decision of the First-tier Tribunal to the Upper Tribunal.
The legal framework
- Primary and secondary legislation
The legislation most relevant to J’s rights in this instance was the Children and Families Act 2014 (primary legislation) and The Special Educational Needs and Disability Regulations 2014 (secondary legislation).
Duty to maintain an EHC plan:
Section 37(1) of the Children and Families Act 2014 places a duty on local authorities to (a) prepare an EHC plan and (b) maintain an EHC plan if, based on an EHC assessment, it is necessary for special educational provision to be made for a child or young person.
A ‘young person’ is defined in Section 83(2) as a person over compulsory school age but under 25.
The power to maintain an EHC plan beyond the age of 25
Section 46(1) of the Children and Families Act 2014 gives local authorities the power to maintain an EHC plan after a young person’s 25th birthday. A local authority “may continue to maintain an EHC plan for a young person until the end of the academic year during which the young person attains the age of 25”. The meaning of ‘academic year’ is significant and it’s explained in Section 46(2) – the period of twelve months ending on the prescribed date – with regulations defining the prescribed date.
Regulation 46 of The Special Educational Needs and Disability Regulations 2014 (2014 SEND regulations) defines ‘academic year’ for the purposes of Section 46 of the Children and Families Act 2014. Academic year is defined as the period of 12 months which ends at different points in the year, depending on the types of educational provision a young person is receiving:
a). For a young person attending college (further education), an academic year is the period of 12 months which ends on 31 July;
b). For a young person receiving apprenticeship training, an academic year is the period of 12 months which ends either on the date that that apprenticeship finishes, or on the day before the young person attains the age of 26 if (that date falls) earlier;
c). For a young person receiving different type of education or training (‘all other cases’), an academic year is the period of 12 months which ends on the day that the young person’s course of education or training is scheduled to end, or on the day before the young person attains the age of 26 if (that date falls) earlier.
Stopping to maintain an EHC plan:
Section 45 of the Children and Families Act 2014 defines the two situations when a local authority can discontinue (‘cease to maintain’) an EHC plan: (a) If the local authority is no longer responsible for the child or young person or (b) the local authority determines that it is no longer necessary to maintain an EHC plan. The law places a duty on local authorities to have regard to whether the educational or training outcomes set out in the EHC plan have been achieved when making decisions about whether there’s still a need for special educational provision for a young person aged over 18 (Section 45(3)).
There’s a statutory procedure for determining whether to cease to maintain EHC plan. It is set out in secondary legislation – Regulation 31 of the 2014 SEND Regulations – and includes steps such as informing and consulting with the young person or their parent about the possibility of the EHC plan ending and notifying them of the decision to cease to maintain an EHC plan, the right to appeal, and the option to seek mediation or disagreement resolution services. Importantly, the local authority must also notify the young person or their parent of the First-tier Tribunal’s power to make recommendations under The Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017.
The right to appeal EHC matters:
Section 51 of the Children and Families Act 2014 gives young people and their parents the right to appeal against local authority decisions about EHC needs assessments and EHC plans to the First-tier Tribunal (Special Educational Needs and Disability). The First-tier Tribunal has a range of powers, including the power to order the local authority to make and maintain a new or amended EHC plan.
For more information about the right to appeal EHC decisions please refer to paragraphs 11.41 onwards in the statutory guidance document. You can read more about the role and remit of the First-tier Tribunal (Special Educational Needs and Disability) here and about the Upper Tribunal (Administrative Appeals Chamber) here.
- Statutory guidance
Statutory guidance – Special educational needs and disability code of practice: 0 to 25 years (2015) – states (Paragraph 9.207): “Support should generally cease at the end of the academic year, to allow young people to complete their programme of study. In the case of a young person who reaches their 25th birthday before their course has ended, the EHC plan can be maintained until the end of the academic year in which they turn 25″.
Upper Tribunal’s decision
The Upper Tribunal concluded:
“Regulation 46 [of the 2014 SEND Regulations] and the Code [statutory guidance] clearly envisage that an exercise of the Section 46 power [Children and Families Act 2014] may be appropriate to allow an individual to complete a course leading to a qualification. That is unsurprising. If one thinks about a person seeking to start, a few months over their 23rd birthday a 2-year vocational course with a qualification if adequately completed, it would be a startling conclusion if the First-tier Tribunal could not specify it because, on turning 25, they would cease to be a “young person”. Rather, the legislator has chosen not to exclude that possibility, but to leave the continuation of the plan thereafter in order to facilitate it to the discretion of the local authority”.
The Upper Tribunal went on to say that in J’s situation, the jurisdiction of the First-tier Tribunal is ”the same as in any other case where the provision specified in the plan is challenged”, i.e., Section 51(2)(c) of the Children and Families Act 2014 (matters that can be the subject of an appeal where there’s an EHC plan in place). The possibility of an EHC plan extension is relevant when decisions are made special educational provision and the First-tier Tribunal should take it into account in relevant cases.
You can read the full decision here: JL (by EA) v Somerset County Council  UKUT 324 (AAC)
Education Health and Care (EHC) plans: children and young people’s wishes and feelings and the right to participate in decision-making
Both primary and secondary legislation, as well as connected statutory guidance, set clear duties designed to ensure children and young people with special educational needs and disabilities (and their parents) are heard, that their wishes and feelings are considered, and that they are enabled to actively participate when decisions are made about them and their lives.
Section 19 of the Children and Families Act 2014 (Local authority functions: supporting and involving children and young people)states that when exercising functions under part 3 of the Act (which covers all functions connected to EHC plans), local authorities must have regard to:
(a) the views, wishes and feelings of the child and his or her parent, or the young person;
(b) the importance of the child and his or her parent, or the young person, participating as fully as possible in decisions relating to the exercise of the function concerned;
(c) the importance of the child and his or her parent, or the young person, being provided with the information and support necessary to enable participation in those decisions;
(d) the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes.
The Special Educational Needs and Disability Regulations 2014 also place clear duties on local authorities.
– Regulation 7 requires local authorities to consult the child and the child’s parent, or the young person and take into account their views, wishes and feelings when securing an EHC needs assessment.
– Regulation 19 places the exact same duty on local authorities when they undertake reviews of EHC plans.
Statutory guidance – Special educational needs and disability code of practice: 0 to 25 years (2015) – explains that the principles set out in Section 19 of the Children and Families Act 2014 are designed to support children’s participation in decision-making and enable greater choice and control (see paragraph 1.2). It also says that the EHC assessment and planning process should, for example:
– Focus on the child or young person as an individual.
– Enable children, young people and their parents to express their views, wishes and feelings and be part of the decision-making process.
– Be easy for children, young people and their parents or carers to understand.
– Highlight the child or young person’s strengths and capabilities.
– Enable the child or young person to share their achievements, interests and aspirations for the future. re seeking in the future (para 9.22).
To learn more about using the law to make sure children ang young people’s wishes and feelings are taken seriously, please refer to our guide for advocates.