Q:
Can the LA amend section E outcomes without consulting parents?
We have tribunal against B, F and I in less than 2 weeks. The LA have sent in late evidence today (even though they are barred). They appear to have amended outcomes, without consultation. They also haven’t mentioned them in the email, just slipped them in.
My child is 16 (nearly 17) and at key phase transition. Lots of the outcomes refer to the end of post 16. Does this mean if they are achieved they will try to cease to maintain at 18?
Is it lawful to amend outcomes at this point? And without any input from parent?
A: SenseCheck
- 0 Yes
- 1 No
- 0 Other
- 25 Oct 2024
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No
Simple
GD,
Setting aside the issue of the local authority being barred (which you raised in another question), during the proceedings of an appeal to the local authority, parties can make representations requesting the Tribunal to consider amendments to outcomes. I addressed this in an earlier question.
Regarding the criteria ceasing to maintain an EHCP, this is addressed in the Noddy Guide here:
10.02 Can an LA just cease to maintain (i.e. terminate) an EHCP?
You will see that the decision to cease to maintain is one that is made based NOT ONLY on the achievement of outcomes.
I will also provide you with a summary of a case that is not included in the Noddy Guide, as it was only made available yesterday, which illustrates this point. It is intended for an intelligent layperson like yourself who does not have a legal back ground.
EM v Royal Borough of Windsor and Maidenhead: [2024] UKUT 317 (AAC) – Cease to Maintain an EHCp
This case revolves around a local authority’s decision to discontinue maintaining an Education, Health, and Care Plan (EHCP) for EM, a young person diagnosed with Autistic Spectrum Disorder (ASD) and related speech and language difficulties. EM's mother, acting on his behalf, submitted an appeal on 29 June 2022, challenging the authority's decision from 26 May 2022 to cease maintaining the EHCP. While the First Tier Tribunal (FtT) initially upheld the authority’s decision, the appeal succeeded as the FtT was found to have made an error in law.
The legal framework governing this case includes the Children and Families Act 2014, particularly Section 45, which specifies when it is no longer necessary to maintain an EHCP. According to Section 45(3), in assessing a young person over the age of 18, a local authority must consider whether the educational or training outcomes outlined in the EHCP have been achieved. Section 21(5) also states that health or social care provision that educates or trains a person may be considered as special educational provision.
EM had attended Manor Green School, a specialist provision for those who have a diagnosis of ASD, since 2013. However, by 2022, the placement had indicated it could no longer meet EM’s needs, noting that he had failed to make significant progress despite intensive support. Based on this, the local authority concluded that EM would be better supported in an adult care environment rather than through formal education and decided to discontinue his EHCP.
The FtT heard evidence from several professionals, including therapists, educational psychologists, and school staff, who provided varying opinions on whether EM still required special educational provision. The local authority argued that EM had reached the limits of his educational potential and would not benefit from further formal education. They believed that his needs could be better met through adult social care. However, EM’s representatives argued that he still required educational support, including therapy, which could only be provided through an EHCP.
In its ruling, the FtT concluded that EM’s ability to make educational progress was minimal and that his learning potential did not justify maintaining the EHCP. They determined that EM’s needs could be met through social care, focusing on daily living routines rather than formal education.
However, the Upper Tribunal found that the FtT had applied the wrong legal test when deciding whether to cease maintaining the EHCP. Specifically, the FtT had not fully considered whether the necessary support for EM, including speech and language therapy and occupational therapy, fell under the category of special educational provision, which would require an EHCP. As a result, the Upper Tribunal ruled that the FtT’s decision was flawed and sent the case back to the FtT for reconsideration. Consequently, the appeal succeeded, and the local authority’s decision to stop maintaining the EHCP was overturned.
The decision can he found HERE
I hope you find this useful, and I look forward to reading any additional contributions others may make.
Sean Kennedy
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