Successful appeal to Upper Tribunal on test for ceasing to maintain an Education, Health and Care Plan

The Upper Tribunal in EM v Royal Borough of Windsor and Maidenhead (UA-2023-001548-HS) has clarified that the test for ceasing to maintain an Education, Health and Care Plan (“EHC Plan”) does not include the question of whether a certain level of educational attainment could be reached in proportion to the amount of provision. The appeal also succeeded on the basis that the First-tier Tribunal provided inadequate reasons in relation to several factual disputes.

Background

The Appellant (“EM”) has a diagnosis of Autism Spectrum Disorder (“ASD”) and associated difficulties with speech and language. Between 2013 and 2022, he attended Manor Green School, a maintained special school. Despite stating at an annual review of EM’s EHC Plan in October 2020 that the school could no longer meet his needs, it continued to provide EM’s education between 2021-2022. It was agreed between the parties that EM had not met the outcomes set out in his EHC Plan.

In May 2022, when EM was 17 years old, the Respondent Local Authority (“the LA”) decided to cease to maintain his EHC Plan, stating:

‘[EM] has demonstrated recently at Manor Green School that he is not able to access formal education and make progress, and it is the Local Authority’s view that he can be better supported in the adult care environment. Manor Green School is unable to continue to support him due to the level of his complex behaviours, and there is no evidence to suggest that any other education placement would be able to support him more successfully. The local authority is no longer seeking an education placement for [EM] and is of the view that he needs to transition into an adult social care placement for the safety of himself and his peers…’.

The Appellant’s mother, acting as his alternative person, appealed this decision to the First-tier Tribunal (Health, Education and Social Care Chamber) (“FtT”).

Legal Framework: Ceasing to maintain an EHC Plan

Section 45(2) of the Children and Families Act 2014 (“the 2014 Act”) provides:

“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.”

Section 45(3) of the 2014 elaborates that when determining whether special educational provision is no longer required, “a local authority must have regard to whether the educational or training outcomes specified in the plan have been achieved.”

Special educational provision is defined under s21(1) as “educational or training provision that is additional to, or different from, that made generally for others of the same age” in mainstream educational settings. Section 21(5) explains that health and social care provision can be special educational provision if it “educates or trains”. In EAM v East Sussex CC [2022] UKUT 193 (AAC) the UT clarified that “[t]hose expressions are different… A provision may be educational without itself educating a child” [§§ 8-9].

First-tier Tribunal decision

In relation to the progress that EM had made at Manor Green School, the FtT found that: “despite EM appearing to make some progress towards his outcomes, this is the result of intensive adult support” and that “[the LA’s] submission is that EM’s attainment is in line with his potential; we find this is the case. Whilst we accept that with sufficient practice in consistent and settled circumstances, routines might develop, we do not consider this to be evidence of significant learning potential" [§35].

The FtT continued that: “In summary, noting EM’s inability to function both within a school and his requirements to participate in current tuition sessions, we do not consider it realistic that he can acquire independence and employment skills beyond those that might be developed as part of a daily living or social care routine” [§38].

The FtT also found that: “We do not accept that EM’s presentation arises from an historic failure to provide appropriate provision, it is a reflection of his deep-seated difficulties. Accordingly, we conclude that it is not necessary for [the LA] to maintain EM’s EHCP. His daily needs must now pass to adult care” [§39].

EM was granted permission to appeal on the basis that (i) the FtT erred in its application of the cease to maintain test under s45(2) of the 2014 Act; and (ii) the FtT failed to give adequate reasons for its decision.

Upper Tribunal decision

Upper Tribunal Judge Price allowed the appeal on both grounds.

In relation to the correct test for deciding whether to cease to maintain an EHC Plan, UTJ Price held that: “[i]n essence it is one of necessity” [§36].

The judge noted that this was not a case where the FtT had concluded that there was no potential for future learning [§40], as demonstrated by the FtT’s finding that it was not realistic that EM could acquire “independence and employment skills beyond those that might be developed as part of a daily living or social care routine” (emphasis added).

UTJ Price summarised the FtT’s decision in the following way: “The crux of the FtT’s reasoning is that because a significant amount of special educational provision had been needed to achieve what they considered to be a small amount of progress, an EHC Plan was no longer necessary” [§43].

The judge was critical of this approach, finding that: “The conclusion that the amount of learning must reach a certain degree in proportion to the amount of provision made for an EHC Plan to be necessary is not supported by the wording of section 45. Although the potential for learning may be a relevant factor as to the question of whether an EHC Plan is still necessary, a particular level of learning is not an essential prerequisite for an EHC Plan.”

In relation to the failure to give adequate reasons, the judge found that the FtT had failed to consider and provide a conclusion in relation to three key areas of dispute in the appeal:

• (a) What provision was necessary to enable EM to develop independence skills;
• (b) Whether the necessary future provision was special educational provision;
• (c) Whether that provision could be provided without an EHC Plan.

The failure to rule on these issues amounted to a material error of law.

The appeal was remitted to the FtT for reconsideration.

Comment

This decision clarifies the test of necessity under s45(2) of the 2014 Act which local authorities must apply when considering whether to cease to maintain an EHC Plan. In sum, the existence of potential for learning may be a relevant factor in determining whether special educational provision is necessary; a specified amount of potential is not.

This approach guards against the introduction of an objective standard of learning which those with EHC Plans must meet in order for their educational provision to continue to be maintained by a local authority. Plainly, such requirement would be the antithesis of an individualised, disability-rights respecting approach. Instead, the UT endorsed an approach which asks whether the education or training provision could benefit the particular person given their needs. The answer to that question will of course be different for each individual with an EHC Plan.

The judgment also makes clear that the FtT is required to consider and rule on all factual disputes which are necessary to reach its overall conclusions. If it does not, then such a failure to give adequate reasons will constitute a material error of law.

Read the full judgment here: EM v Royal Borough of Windsor and Maidenhead (UA-2023-001548-HS).