Massive set back for post-19 SEN provision

The Department for Education has published a new guidance document entitled “SEND: 19- to 25- year olds’ entitlement to EHC Plans”.  The guidance document can be found here and was published on 21^st February 2017.

It is notable that this guidance document, which seems to provide an explanation as to the entitlement for Education Health and Care Plans (EHCPs) post-16 has been published with little or no public announcement.

Content of the Guidance

The guidance covers areas:

• Managing 19- to 25- year olds’ EHC Plans.
• Education, training and benefits.
• Funding.
• Considering Health and Social Care Needs.
• Including young people in decision making.

Some of the content of the guidance is relatively helpful in that it clarifies a few points which have not yet been dealt with in other Statutory Guidance or Regulations.  The guidance confirms and reiterates that from at least Year 9 onwards, Local Authorities should be helping young people along with their parents and carers to plan for a successful transition to adulthood.  The guidance again confirms that preparing for adulthood outcomes should include the following:

• Moving into employment and Higher Education.
• Independent living.
• Having friends and relationships and being part of their community.
• Being as healthy as possible.

Clearly, for all Annual Reviews from Year 9 onwards, at the very latest, the Local Authority should be ensuring that the outcomes contained within the EHCP for a young person should make reference to these outcomes so long as they are relevant to the young person.  For some learners, depending on the severity of a young person’s Special Educational Needs, particular outcomes may need to be disapplied if they are not realistic or achievable. 

The guidance goes on to confirm that young people over the age of 19 may wish to enter, or re-enter, education and, if they have Special Educational Needs, may be entitled to an EHC Needs Assessment and EHCP.  The guidance further reiterates that there is a right of appeal for young people over the age of 19 themselves should the Local Authority refuse to make an assessment or issue them with an EHCP. 

In respect of the function of health professionals, the guidance is also helpful in that it reiterates the importance of involvement from the NHS and Clinical Commissioning Groups.  In particular, the guidance highlights that it is important for adult NHS continuing healthcare to attend at Transition Meetings, support the development of Statutory Care and Support Plans and input into Education Health and Care Plans as appropriate. 

Finally, the guidance reiterates the importance of involving all young people, especially those over the age of 16, in the decision-making process.  This section of the guidance also implies a positive involvement roll for parents, however, it does not go into much detail about this element.

Problems with the Guidance

Sadly this new guidance has a number of significant concerning points within it.

The first substantive line within the guidance is as follows, “young people with SEND are not automatically entitled to maintain their EHC (Education, Health and Care) Plans after they turn 19”.  This certainly causes us some great concern along with a number of other professionals that we know that support young people with Special Educational Needs. 

Introducing a statutory document with a phrase of this nature suggests that the onus falls on a young person to prove their entitlement to an EHCP.  This is a worrying development. The entitlement should be investigated. There should not be a requirement to ‘prove’ the need for it. Certainly, the statutory provisions do not require a learner to ‘prove’ their entitlement, although, sadly, that is often how it is interpreted.

If a young person has been supported during their education with an Education Health and Care Plan, the reviewing authority should consider the ongoing necessity of it.  The starting point should not be that the young person is not entitled to an EHCP.  In our experience it is likely that such phraseology will be taken by Local Authorities to mean that a young person has to justify their ongoing need of support from an EHCP.  Clearly, this is likely to give rise to further dispute.

The guidance serves to reiterate the importance of outcomes with an EHCP.  In respect of ceasing to maintain an Education Health and Care Plan, the guidance highlights that a Local Authority must consider “whether the educational or training outcome specified in the plan have been achieved when a young person is aged over 18”.  This serves to reiterate the importance of ensuring that outcomes are reviewed at every Annual Review Meeting and that they are progressively advanced as a young person moves towards achieving them. 

In our experience outcomes are increasingly vague and lacking in ambition for young people.  As this guidance serves to indicate that the achievement of the outcomes is the trigger for an EHCP to be ceased, it is very important that those outcomes continue to be advanced.  This causes further difficulty because outcomes cannot be appealed to the Special Educational Needs and Disability Tribunal but rather a public law challenge may have to be considered through application for Judicial Review and/or a complaint to the Local Government Ombudsman may be appropriate. 

Of particular concern, the guidance discusses how a Local Authority should support a young person who is returning to educational training.  The guidance states as follows,

 “if a young person does wish to return to educational training and the Local Authority decides that it is appropriate, then they must amend the EHC Plan as necessary and maintain the Plan”.

This is very worrying. The guidance seems to suggest that the Local Authority may decide that it is not appropriate for a young person to return or remain in education or training.  It is not clear what the statutory authority is which would give the Local Authority the ability to determine whether or not it is appropriate for a young person to return to educational training.  There is no guidance on this point and it is unclear how the Special Educational Needs and Disability Tribunal would handle such a situation.  Further, it seems that the guidance is requiring a young person to justify their request for further educational training rather than considering how it should facilitate that request.

For young people without Special Educational Needs the option to return to education and training throughout their lives is always a possibility.  Whilst that may have to be self-funded, young people without Special Educational Needs do not face the additional difficulties that those with SEN will have.  It seems that this guidance prejudices young people with Special Educational Needs as they have to justify why they wish to return to educational training whereas those young people without Special Educational Needs would not have to do so.

The guidance, in section 2, goes on to discuss what support may be available from Local Authorities to young people.  In this section, the Department for Education sets out what it considers to be “non-educational activities”.  Within this list are work experience, community participation, independent travel training, skills for living in semi-supported or independent accommodation, training to develop and maintain friendships, access to local facilities and physiotherapy.  It is of significant concern that the Department for Education has listed these activities as “non-educational”. 

The Children and Families Act 2014, at section 21(5), sets out that any health or social care provision which has the effect of educating or training a young person is to be deemed a Special Educational Provision.  Therefore, any activity that has the effect of educating or training a young person should be considered education.  The assessment of whether a provision is educational is subjective to the effect it has for the young person.  Therefore, it cannot be right for the Department for Education to list activities as being specifically non-educational when, in fact, they could be.  In particular, in our experience, provisions such as independent travel training, access to local facilities, physiotherapy and training to develop and maintain friendships have all been Special Educational Provision ordered by the Special Educational Needs and Disability Tribunal. 

The Department guidance goes on to discuss providing education in a non-educational setting.  The guidance states “…there may be times when Special Educational Provision can be provided outside an institution funded by the Education and Funding Agency (EFA), such as in residential care home or other non-educational setting.  In these cases it would be appropriate for the Education Service to fund this”. 

It is interesting that the Department for Education is indicating that it is possible to secure educational provision in a non-educational setting.  This is especially further to the recent Upper Tribunal Judgment of East Sussex County Council v TW [2016] UKUT 528 (AAC).  In that case, the Upper Tribunal gave guidance that in order for a placement to be named in an Education Health and Care Plan it must be capable of being “attended”. 

The Upper Tribunal felt that a residential care home was not “attended” by a young person because it was their home.  The Upper Tribunal constructed that it would be wrong interpretation of English for a young person to “attend” their home.  By that logic, therefore, it was not possible to name a residential care home in Section I of the Education Health and Care Plan.  The statutory guidance now issued by the Department for Education seems to go against that logic. 

Conclusion

Some of this guidance can be useful for young people.  It serves to reinforce the obligations on the Local Authority to focus on crucial outcomes, especially post Year 9, for the preparation of adulthood.

However, the entire approach of the guidance appears to make young people have to justify why they require Special Educational Provision and an Education Health Care Plan.  Further, of particular concern, the guidance seems to require young people to justify why they should be able to continue with their education or return to education.

In the case of Buckinghamshire v SJ [2016] UKUT 253 (AAC) the Upper Tribunal were presented with an argument that an EHCP should not be prepared for a young person because there was no clear qualification that could be secured by that young person.  The Upper Tribunal roundly rejected such a submission making it plain that any progress by a young person could justify the provision of an EHCP.  This guidance appears to go directly contradictory to that logic.

It seems therefore, that the Department for Education guidance competes directly with at least two Judgments of the Upper Tribunal.  How young people, parents, or professionals supporting them, are expected to follow such guidance is unclear. 

If you are experiencing difficulties as set out above or otherwise in securing additional support for your child from the Local Authority, then please do not hesitate to contact our specialist education law solicitor team on 02920 291704.