Ceasing an EHCP or Ceasing to Maintain an EHCP

The Legal Test for when a LA can cease to maintain an EHCP

Children and Families Act 2014, Section 45:

(1) A local authority may cease to maintain an EHC plan for a child or young person only if (b) the authority determines that it is no longer necessary for the plan to be maintained.

SEND Code of Practice:

9.205 Where a local authority is considering ceasing to maintain a child or young person’s EHCP it must:

  • inform the child’s parent or the young person that it is considering this
  • consult the child’s parent or the young person
  • consult the school or other institution that is named in the EHCP

The LA may issue a notice to cease to maintain an EHCP at any time.

The SEN Regs provide for a two-stage process:

  1. when a local authority is considering ceasing to maintain an EHCP it must inform the child’s parent or the young person and consult them as well as the head teacher or principal and
  2. having carried out that consultation, if the LA decides to cease to maintain the EHC plan it must then notify the child’s parent or young person, the institution named and the responsible commissioning body

This means that you should receive two separate letters from the LA.

In both cases, therefore, the question will be the ‘necessity’ of the EHCP and whether it is still required by the child or young person. (See Case Law B and M v Cheshire East Council (2018) para 84 to 85).

How cease to maintain appeals differ from other appeals

The first thing to remember is that the LA will always have the burden of proof and will have to make its case that it is no longer necessary for the EHCP to be maintained. They will have to produce evidence to support their case on this and convince the Tribunal that the EHCP is no longer needed.

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.

Evidence and the approach to take in a cease to maintain appeal

It will be helpful to show either that the LA have failed to give adequate (or any) consideration to whether it is necessary to maintain the EHCP or that that there is some other good reason why it must be maintained.

The LA must have considered whether the educational outcomes in an EHCP have been met before deciding to cease to maintain and the case will be about whether the plan is still needed whilst the young person continues their education / training or not.

In both cases, the sorts of evidence you would be looking to gather would be similar to that needed when appealing against a decision about a refusal to issue and could include:

  • Evidence from the school or College for example, details of the SEN support to show that such support would not be sufficient to meet the child or young person’s needs
  • Expert reports to show that the child or young person’s SEN or requirement for special educational provision have not changed and that they still require the provision within their EHCP
  • Evidence from the child or young person themselves about the level of support that they still require and the effect that the cessation of the EHCP would have on them.

The cease to maintain notice:

The cease to maintain notice must include the right of appeal and the time limits. If the parent or young person does not appeal, the EHCP will remain in place until the end of the time limit in which an appeal can be made and then come to an end.

If the parent or young person does appeal, the EHCP will remain in place and must continue to be implemented until the appeal is decided by the Tribunal.

When a local authority (LA) decides to take away or end an EHCP, this is called ‘ceasing to maintain’. This means that the EHCP will come to an end and the LA will no longer have the legal duty to ensure that the educational provision specified in the EHCP is received by the child or young person.

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.

Possible orders following a cease to maintain appeal

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.

The SEND Regs: Ceasing to maintain an EHCP

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:

30. (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.

Procedure for determining whether to cease to maintain EHCP

31. (1) Where a local authority is considering ceasing to maintain a child or young person’s EHC plan it must:

(a) inform the child’s parent or the young person that it is considering ceasing to maintain the child or young person’s EHC plan; and

(b) consult the child’s parent or the young person;

(c) consult the head teacher, principal or equivalent person at the educational institution that is named in the EHC plan.

(2) Where, following that consultation the local authority determines to cease to maintain the child or young person’s EHC plan, it must notify the child’s parent or the young person, the institution named in the child or young person’s EHC plan and the responsible commissioning body of that decision.

(3) When notifying the child’s parent or the young person of its decision to cease to maintain the EHC plan, it must also notify them of:

(a) their right to appeal that decision;

(b) the time limits for doing so;

(c) the information concerning mediation, set out in regulation 32; 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.

SEND Code of Practice:

(These sections are about the procedure)

9.206 Where, following the consultation, the local authority decides to cease to maintain the child or young person’s EHCP, it must notify the child’s parent or the young person, the institution named in the child or young person’s EHC plan and the responsible CCG of that decision. The local authority must also notify the child’s parent or the young person of their right to appeal that decision and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support, and disagreement resolution services.

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 EHCP can be maintained until the end of the academic year in which they turn 25 (or the day the apprenticeship or course ends, or the day before their 26th birthday if later). It is important that a child or young person’s exit from an EHCP is planned carefully, to support smooth transitions and effective preparation for adulthood. See paragraphs

8.77 to 8.80 of Chapter 8 on ‘Leaving education or training’ for more information.
9.208 Where a young person aged 18 or over is in receipt of adult services, the local authority should ensure that adult services are involved in and made aware of the decision to cease the young person’s EHCP.

Young people turning 19 who have EHCP:

9.151 In line with preparing young people for adulthood, a local authority must not cease an EHCP simply because a young person is aged 19 or over. 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. However, this position does not mean that there is an automatic entitlement to continued support at age 19 or an expectation that those with an EHC plan should all remain in education until age 25.

A local authority may cease a plan for a 19- to 25-year-old if it decides that it is no longer necessary for the EHC plan to be maintained. Such circumstances include where the young person no longer requires the special educational provision specified in their EHC plan. In deciding that the special educational provision is no longer required, the local authority must have regard to whether the educational or 191 training outcomes specified in the plan have been achieved (see the section on Outcomes, paragraphs 9.64 to 9.69).

9.199 A local authority may cease to maintain an EHCP only if it determines that it is no longer necessary for the plan to be maintained, or if it is no longer responsible for the child or young person. As set out in the Introduction (paragraph xi.), the legal definition of when a child or young person requires an EHCP remains the same as that for a statement under the Education Act 1996. The circumstances in which a 203 statement can be ceased or not replaced with an EHCP during the transition period are the same as that for ceasing an EHCP.

9.200 The circumstances where a local authority may determine that it is no longer necessary for the EHCP to be maintained include where the child or young person no longer requires the special educational provision specified in the EHCP. When deciding whether a young person aged 19 or over no longer needs the special educational provision specified in the EHCP, a local authority must take account of whether the education or training outcomes specified in the EHCP have been achieved. Local authorities must not cease to maintain the EHCP simply because the young person is aged 19 or over.