Young people with SEN who wish to stay in education beyond 19 now have strengthened rights under EHC Plans, as Samantha Hale explains
Under the new SEN system, Education, Health and Care Plans (EHCP) can support young people post-19, which the old Statements of SEN could not.
Prior to the introduction of EHCP, a young person would be supported through a Learning Difficulty Assessment (LDA), which does not place the same legal duties on a local authority as a Statement of SEN or EHCP.
Now a young person can have all the benefits of an EHCP potentially up to the end of the academic year in which they reach 25 years of age, if they remain in education or training, and the local authority considers it necessary to maintain the Plan.
What are the grounds to maintain an EHC Plan?
When considering whether to maintain a Plan post-19, the local authority (LA) should consider the educational and training outcomes that are stated in the Plan and whether or not they have been achieved. So when the Plan is written it's a good idea to ensure that the outcomes will stretch the pupil and are not too readily achievable.
The LA should also consider whether staying in education or training would help the young person to progress and to achieve those outcomes. It should also consider whether the young person wants to remain in education or training, as they must be involved in the process as adults.
If the outcomes have not been achieved, and it is hoped that they will be if the pupil remains in education or training, and the young person wants to remain in education or training, then the Plan should continue to be maintained, and the relevant funding provided for this.
If the LA decides it is no longer necessary for them to maintain the Plan, they can cease it. If they do, the young person will have a right of appeal against this to the First-tier Tribunal (Special Educational Needs and Disability).
How to get an EHCP if a young person has an LDA
Each local authority should have a set timetable for when they transition children and young people from a Statement of SEN/LDA. Anyone with a Statement of SEN will need to wait until the time determined by the LA to transition, but if the pupil is approaching 19, they should be due to transition because they will be moving to a new phase of education.
However, if a young person has an LDA they can ask the LA to transition them to an EHCP at any time and this can be earlier than the LA’s schedule, by requesting an Education, Health and Care Needs Assessment.
If the local authority agrees to this, they should complete the process within 14 weeks. If they refuse, we recommend that the young person seeks legal advice.
Samantha Hale is a solicitor with Maxwell Gillott and specialises in Education, Community Care and Public Law www.maxwellgillott.com