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?
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.
The Children and Families Act drastically alters the landscape for post-19 education and raises a number of important considerations:
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.
Thus, this test is very much open to interpretation.
Indeed, in the recent case of Buckinghamshire County Council v SJ  UKUT 0254 (AAC), the Upper Tier ruled:
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.
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.
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.