RIASS Redbridge
When a local authority (LA) decides to take away, or end, an education, health and care (EHC) plan, this is called ‘ceasing to maintain’ the EHC plan. This means that the EHC plan will come to an end and the LA will no longer have the legal duty to make sure that the special educational provision specified in the EHC plan is received by the child or young person.
When can the LA cease to maintain an EHC plan?
An LA may decide to cease to maintain an EHC plan at any time, but it can only do so on two grounds, following consultation. There is no duty on an LA to cease to maintain an EHC plan, but it is a power that it has in two situations.
These two grounds are set out in section 45 of The Children and Families Act 2014 (CFA 2014) and they are the only legal reasons for ceasing to maintain an EHC plan.
Whichever of the two reasons the LA relies on to decide to cease to maintain the EHC plan, the LA must first follow a legal process. This is set out in regulation 31 of The SEND Regulations 2014. Your LA must:
Your LA must have regard to your views, wishes and feelings (as well as your child’s) (section 19 CFA 2014), so make sure you express your views on the LA’s proposed decision.
Having carried out this consultation, if your LA decides to cease to maintain the EHC plan it must then issue what is called a ‘cease to maintain notice’. This means your LA must write to you telling you that the LA wants to cease to maintain the EHC plan and setting out the reasons why. It must also notify the setting named in the EHC plan and the health body.
If the LA does not follow these steps, or simply states that it is going to stop funding the EHC plan instead of issuing a cease to maintain notice:
this is not lawful. This is because your right to appeal only arises when the LA has made a formal decision to cease to maintain the EHC plan. You should write to the LA requesting that it follows the correct procedure.
Can the LA cease to maintain the EHC plan because a child or young person is out of education?
In addition to the consultation duties explained above, there are extra duties that an LA must comply with if your child or young person is out of education.
What are the two grounds on which an EHC plan can be ceased?
An LA can (but does not have to) cease to maintain an EHC plan, but only if one of two grounds applies. It cannot lawfully apply any other reason.
Ground 1 - the LA is no longer responsible for the child or young person
LAs are responsible for children and young people in their area who the LA has identified as having (or possibly having) special educational needs (SEN) or who have been brought to the LA’s attention as having (or possibly having) SEN.
Ground 2 - it is no longer necessary to maintain the EHC plan
Situations in which an EHC plan would no longer be necessary could include the child or young person no longer needing the provision set out in the EHC plan. This might be because their SEN have changed.
As a first step the LA will need to identify and consider what special educational provision is required. Only then can it decide whether it is no longer required or what the appropriate placement may be.
The LA should ask itself whether the child or young person would meet the test for preparing and maintaining an EHC plan. If the answer is ‘yes’, an EHC plan would necessary under section 37(1) CFA 2014, it will be difficult for the LA to reach a conclusion that it is no longer necessary for an EHC plan to be maintained.
For a young person over 18, the LA must consider whether the educational or training outcomes in the EHC plan have been achieved. Considering whether outcomes have been achieved must not be treated as a ‘tick box’ exercise – the LA must have proper regard to whether they have been achieved. If they have not, that is an indication that the special educational provision should continue. However, the LA cannot cease to maintain an EHC plan just because the outcomes have been achieved – they should consider whether it is necessary for new outcomes to be set.
The SEN and Disability Code of Practice (the Code) says that LAs must not cease to maintain the EHC plan simply because the young person is aged 19 or over (paragraph 9.200). LAs should also not cease to maintain just because the young person has finished their current course at school or college:
“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” (paragraph 9.151).
The LA should not introduce additional criteria for continuing EHC plans after the end of compulsory school age, such as requirements for the young person to be working towards qualifications, employment or independent living. Not all young people will be able to achieve these things, but this does not mean their support should be taken away.
Will the provision stop straight away?
If a cease to maintain notice is issued, the LA is not allowed to simply stop funding the provision straight away.
You have a right of appeal against the decision to the SEND Tribunal. The appeal must be submitted within either two months of your LA’s formal decision to cease to maintain, or one month from the date on your mediation certificate, whichever is later. Our pages on mediation and appealing to the SEND Tribunal will provide you with helpful information on these topics. You can also find detailed information on this type of appeal on our appeals against decisions to cease to maintain an EHC plan section.
If you decide not to appeal the decision, then the LA must keep the provision in place at least until your right of appeal has expired.
If you decide to appeal the decision, then the LA must keep the provision in place at least until the appeal is finished. The EHC plan will only cease if the SEND Tribunal has made an order saying the EHC plan should be ceased.
Similarly, the education institution named in Section I of the EHC plan must continue to let your child or young person attend and your LA must continue to pay any school fees (if relevant) until the right of appeal has expired or the appeal is finished.