Appealing a Cease to Maintain
Email this pageThe SEND Code of Practice 2015 says:
The circumstances where a local authority may determine that it is no longer necessary for the EHC plan to be maintained include where the child or young person no longer requires the special educational provision specified in the EHC plan. When deciding whether a young person aged 19 or over no longer needs the special educational provision specified in the EHC plan, a local authority must take account of whether the education or training outcomes specified in the EHC plan have been achieved. Local authorities must not cease to maintain the EHC plan simply because the young person is aged 19 or over.
(9.200)
Education, Health & Care Plans are only for young people in training or in school and colleges – not university. Therefore, if your young person finishes further education or training, goes to university, or starts a job, the local authority will cease the plan. If you need extra support at University you can apply for Disabled Student Allowances.
For this type of appeal it is the local authority who will need to evidence why it is no longer necessary for an EHC plan to be in place. However, you should gather evidence in the same way and be prepared to counter the local authority view at the hearing.
The Tribunal Judge will make a decision on the way in which they wish to hear the appeal and the way in which they wish to hear the evidence presented.
The Judge will outline this at the beginning of the hearing but it will always be helpful to be prepared to meet the LA’s case.
You should gather any evidence to show that the EHCP is still needed as this will strengthen your appeal.
Another difference is the fact that any provision within the EHCP must be maintained pending the hearing and determination of the appeal.
Combining a cease to maintain appeal with a contents appeal
When appealing against the decision to cease to maintain it will also be possible to ask the Tribunal to order amendments to the contents of the EHCP. This may be because the Plan is vague or doesn’t specify the provision required to continue in education or training. In such a case, the young person may well still require their EHCP to move onto college for example.
If it is likely that the EHCP would need to be amended in order to continue to offer the young person the necessary support they require during their course, it would make sense to invite the Tribunal to consider the amendments which the young person is seeking first.
If this is done first, the Tribunal then go on to consider whether the EHCP, in its amended form, should continue and whether the LA can, in fact, establish that it is not necessary to do so. As always it is now to the individual Tribunal Judge to determine the order in which matters were heard and determined during the hearing, and they have wide powers to decide how they will do that.
An appeal against a decision to maintain can, therefore, become an appeal against the contents and the same considerations in terms of evidence gathering and presentation would apply in such circumstances.
If the parent or young person’s appeal is successful, the LA will have to continue to maintain the EHCP and that will take effect immediately.
If the cease to maintain was also an appeal about the contents of the EHCP and the Tribunal ordered the LA to make amendments to be made to the plan, they would have 5 weeks from the Tribunal’s order to make any such amendments.
If however, the appeal is unsuccessful, the LA would be able to cease to maintain with immediate effect.
Ceasing to maintain an EHCP
The SEND Regulations:
Circumstances in which a local authority may not cease to maintain an EHCP where the person is under the age of 18:
29.(1) A local authority may not cease to maintain an EHC plan for a child or young person under the age of 18 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.
(2) Where a child or young person under the age of 18 is not receiving education or training, the local authority must review the EHC plan in accordance with regulations 18 and 19 and amend it in accordance with regulation 22 where appropriate, to ensure that the young person continues to receive education or training.
Circumstances in which a local authority may not cease to maintain an EHC plan where the person is aged 18 or over:
- (1) When a young person aged 18 or over ceases to attend the educational institution specified in his or her EHC plan, so is no longer receiving education or training, a local authority may not cease to maintain that EHC plan, unless it has reviewed that EHC plan in accordance with regulations 18 and 19 and ascertained 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.
(2) Where following the review, the local authority ascertains that the young person wishes to return to education or training either at the educational institution specified in the EHC plan, or at another educational institution, and determines that it is appropriate for the young person to do so, it must amend the young person’s EHCP as it thinks necessary in accordance with regulation 22.
Useful links
Also in this section:
Video Hearings at SEND Tribunal explained (with BSL)
What happens at a video hearing at the Special Educational Needs & Disability Tribunal - British Sign Language (BSL)