10/04/2017
Conundrum for Young People with Special Educational Needs
A lead DFE SEN Advisor once said to me that he expected Education Health and Care (EHC) Plans to reduce for those youngsters aged 19 + and that he could not see high demand in this area. I politely disagreed and suggested that it would be the tipping point which might break some local authorities. You may ask why?
What Has Changed?
The introduction of the Children and Families Act 2014 allows an EHC Plan to be maintained until the age of 25. However, the Act did not introduce a right of education until the age of 25. Where does this leave local authorities or young people? The answer, in a conundrum. This article will explore why.
Out With The Old
What Has Changed?
The Children and Families Act drastically alters the landscape for post-19 education and raises a number of important considerations:
- The legislation does not identify a specific cut off point when education can lawfully be refused by a local authority. However, bizarrely neither does it provide an entitlement to education until the age of 25.
- Young people have the right to ask for EHC Plans from the ages 16 to 25 whether they are in education or not.
- Unless certain prescribed circumstances arise the EHC Plan will be in force until it is ceased by the local authority and potentially up to the age of 25.
- There will be a right of appeal to the First Tier Tribunal where the local authority refuses to carry out an EHC Needs Assessment or refuses to issue an EHC Plan for young people between the ages of 16 and 25.
- Young people, with the support of their parents, are now able to challenge the provision offered or not offered to an independent Tribunal.
The extended scope of the Act means that local authorities are now required to identify and support young people within the further education sector. This will require them to be more directly involved than under the LDA process and on a continuing basis (at least until 25). Frankly, there are limited resources to be able to do this.
The Conundrum
Thus, this test is very much open to interpretation.
Is Further Education or Training Necessary?
Indeed, in the recent case of Buckinghamshire County Council v SJ [2016] UKUT 0254 (AAC), the Upper Tier ruled:
- "I reject any suggestion that the attainment of qualifications is an essential element of education. For many of those to whom the 2014 Act and Regulations apply, attaining any qualifications at all is not an option. That does not mean that they do require, or would not benefit from, special educational provision".
- "Necessity has to be judged practically and in light of the reality, not by reference to attainments that are more theoretical than real".
These findings were made in circumstances where the young person had made very slow progress despite receiving specialist residential provision up to the age of 19. Further, the Upper Tier construed a recommendation made by an educational psychologist for the young person to access a "learning environment" to mean an educational setting.
What Does This All Mean?
Essentially, this means that local authorities cannot simply deny post-19 education for young people because they have complex needs and believe they cannot attain higher level qualifications. Local authorities will have to be very clear on the outcomes they are expecting young people to achieve in their EHC Plans.Whether that then requires an educational placement to be funded to meet those outcomes will be a matter for further evaluation. To attempt to address the minefield created by the DfE, local authorities should at least establish guidelines for funding post-19 provision, which would ensure that decisions are taken consistently. It is bizarre that some young people have fully funded post 19 placements and others have been left with nothing.
Why A Conundrum?
To put it simply, local authorities are now facing specific challenges to their decision making at all levels which they are not arguably prepared for in the post 19 arena, having been told that this is where a drop off can be expected in the number of EHC Plans.
At pre-16 there are at least established practices and an understanding of what is required, even if implementation is difficult.
At post 16 and post 19, the picture is fraught with difficulties because those in decision making positions have not been exposed to the same level of challenge and scrutiny. They have not had to endure the Tribunal process and had their evidence for decisions scrutinised.
Additionally, a critical question to consider in deciding whether an EHC Plan should be maintained is whether there will be a continuing need for special educational needs provision. This is so open ended and is very hard to be definitive. What is clear is that a local authority will need very clear evidence to justify a cessation of an EHC Plan and the denial of further education to young people beyond 19.
The Need For Guidance
