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Masthead Education - Governance and Risk

Post-19 education and SEND

Lexis Public Sector 146x219LexisPSL Local Government, with Hannah Lynch of St Pauls Chambers, considers the key issues around post-19 education for young people with special educational needs and disabilities.

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Part 3 of the Children and Families Act 2014 (CFA 2014) introduced a radical overhaul of Special Educational Needs provision in England and Wales. Statements were replaced with 'Education, Health and Care Plans' (EHC Plans); and made available to young people up to the age of 25. See Practice Note: Special educational needs in England under the Children and Families Act 2014.

A young person over compulsory school age, but under 25 is a ‘young person’ for the purposes of the CFA 2014.

Young people with Special Educational Needs and Disabilities (SEND) who wish to undertake further education will be entitled to have their EHC Plan maintained up to the age of 25, where this is appropriate and necessary to enable them to access the educational provision of their choice.

The creation of 19–25 special education is a very significant development, both for young people and for local authorities. For young people with special needs, the fact they can retain an EHC Plan into their early 20s should mean that many could remain in educational provision for much longer than would otherwise have been the case.

Extending EHC Plans to cover the 19–25 age range should, if Education and Social Care departments work well together, reduce the difficulties around transition from Children’s Services to Adult Services and ensure continuity of planning for a young person’s education and care needs.

The disadvantage to local authorities is that the funds required to implement the new statutory system must be found at a time when local authorities' budgets are being significantly cut. Extending the age range for EHC Plans up to 25 means that local authorities could potentially have to fund special educational provision for every young person with an EHC Plan for another six years. While this will not be necessary or desirable in every case, the cost implications for local authorities are significant.

What should ‘education’ look like for 19-25s with SEND?

Unlike for nursery or school age children, there is no agreed model of provision for young adults with SEND.

CFA 2014, s 21(1) defines ‘special educational provision’, in relation to a person aged two or more, as:

‘educational or training provision that is additional to, or different from, that made generally for others of the same age in—

  • (a) mainstream schools in England,
  • (b) maintained nursery schools in England,
  • (c) mainstream post-16 institutions in England, or
  • (d) places in England at which relevant early years education is provided.’

CFA 2014, s 82(2) defines post-16 institution as ‘an institution which (a) provides education or training for those over compulsory school age, but (b) is not a school or other institution which is within the higher education sector or which provides only higher education’.

Save for the exclusion of higher education provision, the concept of ‘education or training for those over compulsory school age’, as set out at CFA 2014, s 82(2), is very broad. Mainstream post-16 institutions provide a whole range of education and training, via numerous models of delivery, so it can be difficult to establish what is ‘additional to, or different from’ education or training provided by these institutions. For those young people with more severe learning needs, many specialist curriculums focus on life skills, with a view to maximising employability, so it can be difficult to separate out where care, education and employment provision begins and ends.

References:

CFA 2014, s 83(4)

A wide range of provision can be specified in Part F of an EHC Plan, including:

  • support/ appropriate adjustments to enable access to an education/training course at a local FE college;
  • attendance at courses and classes run by the local authority’s Adult Education service;
  • attending a residential course at an independent specialist college

The case law in this area is still developing, but the Upper Tribunal has ruled on some proposed educational packages for post-19s with EHC Plans.

In carrying out an EHC needs assessment of a young person, a local authority must seek a range of specialist advice, including ‘where the...young person is in or beyond year nine, advice and information in relation to provision to assist the...young person in preparation for adulthood and independent living’. Regulation 2(2) of the Special Needs and Disability Regulations 2014, SI 2014/1530 provides that ‘preparation for adulthood and independent living’ includes ‘preparation relating to (a) finding employment; (b) obtaining accommodation; (c) participation in society.’

References:

Special Needs and Disability Regulations 2014, SI 2014/1530, reg 6(1)(g)

Special Needs and Disability Regulations 2014, SI 2014/1530, reg 2(2)

CFA 2014, s 61(1) allows a local authority to arrange for any necessary special educational provision to be made otherwise than in a school or post-16 institution but only if it is satisfied that ‘it would be inappropriate for the provision to be made in a school or post-16 institution.’

References:

CFA 2014, s 61(2)

However, In East Sussex CC v TW, T’s parents sought provision for life skills teaching, which was to be provided to TW at his home, to be included in Section F of his EHC Plan. The Tribunal concluded that it could not make such an order, because TW’s home was not an ‘institution’ which he could ‘attend’, within the meaning of the Special Needs and Disability Regulations 2014, SI 2014/1530 reg 12(i).

References:

East Sussex CC v TW [2016] UKUT 528 (AAC) per Upper Tribunal Judge Jacobs at paragraph 32

Special Needs and Disability Regulations 2014, SI 2014/1530, reg 12(i)

Needless to say, there remain many opportunities for young people with SEND which they could access without an EHC Plan, such as courses offered by Adult Education services.

Mainstream or specialist

A local authority has ‘a qualified duty to secure that the EHC Plan provides for the young person to be educated in a mainstream school or mainstream post-16 institution’. It is qualified because CFA 2014, s 33(2) provides that the duty does not apply where mainstream education is incompatible with:

References:

Per the Upper Tribunal in S v Worcestershire County Council [2017] UKUT 92 (AAC)

  • the wishes of the child's parent or the young person, or
  • the provision of efficient education for others

So if a young person expresses a wish for a specialist post-16 placement, CFA 2014, s 33 does not apply.

EHC Plans not available to assist in pursuing higher education

CFA 2014, s 83(4) makes clear that this does not include higher education providers. The scope of this exclusion was the source of some confusion until the Upper Tribunal’s ruling in RB Kensington & Chelsea v GG [2017] UKUT 141 (AAC), in which Judge Jacobs set out helpful guidance on the issue, including the following:

‘(e) section 21’s definition of special educational provision is capable of being satisfied even if a young person is formally enrolled on a course of higher education or is considering pursuing such education. While, in many cases, this will inevitably lead a local authority to refuse to carry out an assessment under section 36 of the CFA 2014, there may be cases when it will not. For example, a student formally enrolled on a course of higher education may experience some adverse health event or for some other reason be unable to cope with the demands of such education so that, in the near future, he or she wishes to pursue a less demanding course of further education instead;

(h) an institution within the higher education sector, or other institution which provides only higher education, may not be named in section I of an EHC plan;

(i) the test for deciding whether to carry out an EHC assessment, in section 36(3) of the 2014 Act, is whether “it may be necessary for special educational provision to be made for the...young person in accordance with an EHC plan”. If the young person simply seeks higher education, the answer to the section 36(3) question must be no.’

Local authorities need to be clear that a young person is actually going to undertake a higher education course before ceasing their EHC Plan or refusing to undertake an EHC needs assessment on that basis. See Gloucestershire County Council v EH [2017] ELR 193

The Additional Learning Needs and Education Tribunal (Wales) Act 2018 ALNET(W)A 2018 was passed in January 2018 and will fundamentally reform provision for those with additional learning needs in Wales. ALNET(W)A 2018, s 11 provides that provision will include further education.

What should a local authority consider when deciding on provision post 19?

CFA 2014, s 36(10) provides as follows in relation to EHC needs assessments:

‘In making a determination or forming an opinion for the purposes of this section in relation to a young person aged over 18, a local authority must consider whether he or she requires additional time, in comparison to the majority of others of the same age who do not have special educational needs, to complete his or her education or training.’

The phrase ‘additional time’ incorporates all those who need an EHC Plan to continue to access special education provision in adulthood, either because they previously did not have an EHC Plan (perhaps because special educational provision provided by their school via the ‘graduated response’ was sufficient), because their needs have changed or because they had a statement of SEN but need an EHC needs assessment or EHC Plan to continue in education beyond age 19. For this reason, the relevant question is whether the young person has a need for continuing special educational provision.

By virtue of CFA 2014, s 45, a local authority may only cease to maintain an existing EHC Plan where it is no longer necessary for special educational provision to be made for the young person or they no longer reside in the area:

‘(2) The circumstances in which it is no longer necessary for an EHC plan to be maintained for a child or young person include where the child or young person no longer requires the special educational provision specified in the plan.

(3) When determining whether a young person aged over 18 no longer requires the special educational provision specified in his or her EHC plan, a local authority must have regard to whether the educational or training outcomes specified in the plan have been achieved’

The SEND Code of Practice 2015 provides important guidance on as to the correct interpretation of CFA 2014, s 36(10) and CFA 2014, s 45:

References:

Special educational needs and disability code of practice: 0 to 25 years

Paragraphs 9.151 and 9.152 provide:

‘In line with preparing young people for adulthood, a local authority must not cease an EHC plan 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 training outcomes specified in the plan have been achieved (see the section on Outcomes, paragraphs 9.64 to 9.69).

The local authority should also consider whether remaining in education or training would enable the young person to progress and achieve those outcomes, and whether the young person wants to remain in education or training so they can complete or consolidate their learning. In both cases, this should include consideration of access to provision that will help them prepare for adulthood. Young people who no longer need to remain in formal education or training will not require special educational provision to be made for them through an EHC plan.’

Paragraph 9.65 provides:

‘Long-term aspirations are not outcomes in themselves–aspirations must be specified in Section A of the EHC plan. A local authority cannot be held accountable for the aspirations of a child or young person. For example, a local authority cannot be required to continue to maintain an EHC plan until a young person secures employment. However, the EHC plan should continue to be maintained where the young person wants to remain in education and clear evidence shows that special educational provision is needed to enable them to achieve the education and training outcomes required for a course or programme that moves them closer to employment. For example, by accessing a supported internship or apprenticeship.’

The Upper Tribunal has adopted a fairly liberal interpretation of the above guidance. In Buckinghamshire County Council v SJ [2016] UKUT 254 (AAC), SJ’s parents appealed against a decision not to issue an EHC Plan for their son, who had autism and severe learning difficulties. The local authority had ceased J’s statement and had placed SJ in a residential care home for adults with disabilities, where he could attend educational activities during the day. SJ’s parents wanted SJ to attend a residential specialist college for young adults with SEND. The Tribunal found that the local authority (LA) was required to issue an EHC Plan for SJ and that he would benefit from further time in education, despite being presented with evidence that J had made negligible academic progress for several years and further time in education would not enable him to undertake paid work or live independently. See News Analysis: In brief—Clarity on ECHP eligibility for young persons issued by UT (Buckinghamshire County Council v SJ)

Role of aspirations and outcomes

It is clear that a local authority is not required to ensure that a young person achieves all their academic/employment-related aspirations before ceasing their EHC Plan. In Devon CC v OH [2016] UKUT 292 (AAC), the Tribunal was considering an appeal in relation to a young woman who had a life-long interest in horses. She wished to attend F Centre, a residential specialist college where she could obtain recognised qualifications through working with horses. The LA had offered her a place at a local FE college, where she would spend only some of her time working with horses. The cost differential between the two placements was over £30,000. It was argued on behalf of O, that CFA 2014, s 19(d) required the local authority to name the F Centre in O’s EHC Plan because it was her life-long dream to work with horses.

Section 19 provides as follows:

‘In exercising a function under this Part in the case of a child or young person, a local authority in England must have regard to the following matters in particular—

(a) the views, wishes and feelings of the child and his or her parent, or the young person;

(b) the importance of the child and his or her parent, or the young person, participating as fully as possible in decisions relating to the exercise of the function concerned;

(c) the importance of the child and his or her parent, or the young person, being provided with the information and support necessary to enable participation in those decisions;

(d) the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes.’

The Upper Tribunal found that the reference in CFA 2014, s 19(d) to supporting young people to achieve the ‘best’ possible educational and other outcomes, did not mean that a Local Authority had to fund the placement that the young person and their family would like the best, and which would best fit with their aspirations.

- the Tribunal took into account that, despite saying that its course would allow students to move into paid work with horses, only one student who had left the Fortune Centre in the last three years had obtained paid employment

- the requirement in CFA 2014, s 19(d) to support young people with SEND to achieve the ‘best possible educational and other outcomes’ did not impose a requirement on local authorities to ensure that a young person achieves their aspirations. Section 19(d) is just one factor to be considered when deciding what is appropriate provision for a young person with SEND

- the legal position as set out in A v Hertfordshire [2006] EWHC 3428 (Admin), (2007) ELR 95 whereby ‘need’ is to be interpreted as what is reasonably required, applies also to CFA 2014 and therefore to EHC Plans

- there is no right of appeal against the content of section A (aspirations) and section E (outcomes): one must assume this was deliberate. [Para 42] There is a duty to consider how to help the child achieve those outcomes, but not at the expense of other constraints such as available resources

References:

A v Hertfordshire CC [2006] EWHC 3428 (Admin), (2007) ELR 95, paras 40, 42

This approach has been confirmed in a subsequent Upper Tribunal ruling in S v Worcestershire County Council [2017] UKUT 92 (AAC), in which Judge Mitchell found that:

  • the First-Tier Tribunal is required to consider the requirements of section 19 when reaching a decision, but only as part of considering the overriding objective

References:

S v Worcestershire County Council (SEN) [2017] UKUT 92 (AAC) at paras 72–73

  • the Tribunal has the power to amend outcomes so that an EHC Plan is not left with outcomes which are ‘pointless and confusing’, but a local authority cannot be taken to Tribunal for a failure to ensure that a particular outcome is achieved

References:

S v Worcestershire County Council (SEN) [2017] UKUT 92 (AAC) at paragraph 85

Relevant considerations when deciding whether to maintain an EHC Plan

As the above makes clear, local authorities must consider a whole range of factors when deciding whether to maintain a young person’s EHC Plan post-19. Such decisions must be evidence-based and taken in consultation with the young person and those who support him/her. Below is a non-exhaustive list of relevant factors to consider:

  • the young person’s needs and current attainment
  • have the outcomes in their EHC Plan been achieved
  • if no, would extra time in education be reasonably likely to assist in achieving them? Is further time in education reasonably required
  • if yes, which post-19 placement would the young person like to attend and what is the cost? What course would the young person do there and what outcomes would they achieve
  • is the local authority proposing a different placement? If so, what is on offer at this placement
  • is the LA’s proposed placement cheaper taking into account transport and social care costs, including short breaks and/or independent living and personal support costs
  • if yes, a local authority may decline to name the young person’s proposed placement. If it is not more expensive than the local authority’s proposed placement, the LA must name the young person/parent’s preferred placement, unless it has decided that further time in education would not enable the young person to progress towards agreed outcomes which would make a difference in adult life

LA’s must demonstrate flexibility in their decision-making processes, to allow young people to participate and take into account all the complex factors involved in helping young people with SEND prepare for adulthood. The system of making decisions at ‘panel’ meetings held on pre-arranged dates may not be appropriate.

Capacity: who makes the decisions?

It is important to establish whether a young person over the age of 16 has capacity to make decisions for themselves about whether to continue in education and what form of education to choose. CFA 2014, s 80 provides that the definition of ‘capacity’ relevant for these purposes, is that set out in the section 2 of the Mental Capacity Act 2005 (MCA 2005) which provides that a person is to be assumed to have capacity unless it is established that he lacks capacity. This principle must be applied properly to young people with EHC Plans.

It is very important to consider what the young person wants their future to look like. A young person may have very different views about the education or training they want to undertake, from their parents’ views about what would be best for them. Some young people may want to move into the world of work straight away, or may not be motivated to work or study. MCA 2005, s 1(5) provides that, ‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision’.

The Upper Tribunal has made clear that whether a young person has capacity is for the Tribunal to decide, when that issue arises in cases before it.

References:

London Borough of Hillingdon v WW [2016] UKUT 253 (AAC) at paragraph 10

There will be large numbers of young people with EHC Plans who lack capacity to make decisions about their future education and care, due to the severity of their learning and other difficulties. However, the MCA 2005 expressly provides that one must not assume a lack of capacity simply because a person has a particular condition. Therefore, it is good practice to undertake a capacity assessment of a young person when inviting their views about their plans for their life beyond the end of compulsory education.

If a young person lacks capacity, their parents may make decisions on their behalf; and for those aged 18 and over, their parents/carers should do so under a deputyship supervised by the Court of Protection. Parents and local authorities must take into account the young person’s views, even if he/she lacks capacity; the decision must be made in the young person’s best interests.

References:

MCA 2005, ss 1(5) and 4(4)

Parents retain parental responsibility for young people aged 16 and 17, even where they have capacity to make their own decisions for the purposes of MCA 2005.

References:

London Borough of Hillingdon v WW [2016] UKUT 253 (AAC) at paragraph 16

A young person who does have capacity may nevertheless choose for their parents to represents their interests and/or make decisions for them.

Adult Social Care departments should carry out assessments of young people with SEND pursuant to their obligations under the Care Act 2014 (CA 2014), before a young person turns 18. CA 2014, s 9 provides that, where it appears to a local authority that an adult may have needs for care and support, the authority must assess whether the adult does have needs for care and support, and if the adult does, what those needs are.

References:

Care Act 2014, s 9

It is good practice for Education and Adult Social Care departments to work together and carry out one capacity assessment to evaluate the young person’s ability to make decisions about both their education and living arrangements once they turn 18. Medical evidence should be obtained where there is any doubt about capacity, or about the steps which ought to be taken to assist a young person to reach a decision.

The young person’s preference

Under, CFA 2014, s 39, if a parent/young person requests a particular college place be named in their amended EHC Plan, the LA must formally consult that college.

Pursuant to CFA 2014, ss 39(3) and (4), a local authority must name the young person’s preferred college or institution unless:

  • the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or
  • the attendance of the child or young person at the requested school or other institution would be incompatible with—

- the provision of efficient education for others, or

- the efficient use of resources

It should be noted that CFA 2014, s 39 only applies to independent specialist colleges/post-16 institutions on the Secretary of State’s CFA 2014, s 41 list. A young person may request that a non CFA 2014, s 41 independent placement is named, but the CFA 2014, s 39 considerations would not apply to this request.

Assuming the LA considers the college of preference to be suitable, if placement at the college of the young person’s preference is incompatible with the efficient use of resources (because the LA has identified an alternative less expensive placement which is appropriate to meet the young person’s needs), the LA may name the alternative appropriate placement to be named in the child’s EHC Plan.

The ‘five day offer’ and the need to improve local provision

Since the CFA 2014 came into force, all local authorities should have been working to increase the range of specialist provision available locally for young people with SEND aged 19–25. This can be done in a variety of ways, such as:

- Working with FE colleges to encourage them to diversify their course offerings and ensure that they comply with sections 20 and 91 of the Equality Act 2010 by making ‘reasonable adjustments’ to their entry requirements, courses and facilities. See paragraphs 9.90–9.91 of the SEN Code of Practice.

- support local special schools to develop associated college provision for 19–25-year-olds

- expand the range of adult education classes provided locally

- partner with organisations offering apprenticeships for young people with SEND

It is often highly advantageous to a young person to remain living in their local area while accessing special educational provision through an EHC Plan. It allows them to maintain links with friends and family; and to build links with potential employers in the area.

Employment rates for young adults with SEND remain very poor and local authorities are required to take steps to address this as part of their duties to meet the needs of young people with SEND: this is one of the areas which is assessed by Ofsted/CQC in a Local Area SEND inspection.

In order to provide good quality arrangements for young adults with SEND in their local area, Social Care and Education departments must work together to offer a cohesive package of support for a young person. For example, an offer of a part-time placement at an FE college is only workable if the young person has appropriate accommodation in the area (provided through a Shared Lives scheme or supported living accommodation, if not with family members) and support to get to and from the college.

‘Five Day Offer’

It is a not an absolute requirement for local authorities to provide five days per week of ‘traditional’ education provision, delivered by one provider, for young adults with EHC Plans. The Code of Practice emphasises that local authorities should aim to put together five-day packages where appropriate for the young person concerned, but these can include:

  • volunteering,
  • work experience,
  • health and care-related activities; and
  • activities to develop independence skills

References:

SEND Code of Practice, paragraphs 8.39–8.42 COP

Local authorities must consider the public sector equality duty (as set out at EqA 2010,s 149) when looking at which local opportunities young person may want to access. See Practice Notes: Public sector equality duty and Specific public sector equality duties—England.

The fact that EHC Plans can be available for young people up to the age of 25, provides a real opportunity to jointly plan for the young adulthood of those with SEND and to improve long-term outcomes for these young people. Whilst there are many challenges in providing appropriate provision (practical, financial and legal) and developing a shared understanding of the legal framework, this part of the CFA 2014 should support young people to make the most of their talents and maximise their chances of leading independent and fulfilling adult lives.

This article was originally published in LexisPSL Local Government. If you would like to read more quality content like this, then register for a free 1 week trial of LexisPSL.


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