Cease to maintain an EHCP (CTM)
When a Local Authority decides to take away, or end, an EHCP, this is called ‘ceasing to maintain’ the EHCP.
This means that the EHCP will come to an end and the LA will no longer have the legal duty to make sure that the special educational provision specified in the EHC plan is received by the child or young person.
When an LA decides to cease to maintain the EHCP, it must first:
- Consult with the child’s parent or young person as well as the head teacher or principal of the school or college being attended, and
- Issue what is called a ‘cease to maintain notice’. This means a notice in writing to the parent or young person telling them that the LA wants to cease to maintain the EHCP and setting out the reasons why.
- It must also notify the setting named in the EHC plan and the health body.
The LA must have regard to your views, wishes and feelings (as well as your child’s) (section 19 CFA 2014), so make sure you express your views on the LA’s proposed decision.
The LA must make sure it carries out a lawful consultation, with you, or your young person, and the setting
If the LA MUST follow these steps, it cannot state that it is going to stop funding the EHCP instead of issuing a cease to maintain notice:
- This is because your right to appeal only arises when the LA has made a formal decision to cease to maintain the EHCP. You should write to the LA requesting that it follows the correct procedure.
- Case law has also made clear that if an LA makes a decision to cease to maintain an EHCP without following this process and the SEND Tribunal on appeal may decide the decision is not valid and set it aside.
Children and young people under 18
Where a child or young person under 18 is excluded from their education or training setting or leaves voluntarily, the LA should try to re-engage the young person in education or training as soon as possible.
It must review the EHCP and amend it as appropriate to make sure that the young person continues to receive education or training (see paragraph 9.202 of the Code).
The LA can only cease the EHCP if it decides that it is no longer necessary for special educational provision to be made for the child or young person.
This is set out in regulation 29 of The SEND Regulations 2014.
Young people 18 or over
Where a young person aged 18 or over ceases to attend the educational placement specified in their EHCP, again the LA cannot simply cease to maintain that EHCP.
It must first hold a review (following all of the steps it must for an annual review) and then it can only cease to maintain the EHCP if:
- It has found out that the young person does not wish to return to education or training at any setting, or
- It has concluded that returning to education or training would not be appropriate for the young person.
This is set out in regulation 30 of the SEND Regulations 2014.
If the young person wants to return to education but at a different setting, the LA must amend the EHCP to name an appropriate setting.
the two grounds on which an EHCp can be ceased....
Ground 1 - the LA is no longer responsible for the child or young person
LAs are responsible for children and young people in their area who the LA has identified as having special educational needs.
Being ‘in an LA’s area’ includes children and young people physically present in the area as well as children and young people who may have temporarily moved abroad or to a different area in England but remain ordinarily resident in the area. This will depend on each individual’s circumstances as to whether they are ‘ordinarily resident’.
An LA would no longer be responsible if:
- The young person has taken up full-time paid employment (excluding apprenticeships)
- The young person has started a higher education course (or other level 4 course)
- A young person aged 18 or over has left education and no longer wishes to engage in further learning
- The young person has turned 25, or
- The child or young person has moved permanently outside England or permanently to a different LA.
Some key legal points on this ground are:
Turning 25 years old
If you are turning 25 years old, and your LA consults with you about ceasing to maintain your EHCP, you can remind your LA that it can continue to maintain your EHCP until the end of the academic year during which you turn 25 (section 46 CFA 2014). You may also like to refer to the Code (paragraph 9.207) which says:
“9.207 Support should generally cease at the end of the academic year, to allow young people to complete their programme of study. In the case of a young person who reaches their 25th birthday before their course has ended, the EHC plan can be maintained until the end of the academic year in which they turn 25 (or the day the apprenticeship or course ends, or the day before their 26th birthday if later).”
Temporarily leaving the area
Even if your child or young person temporarily leaves the LA’s area, the LA may still be responsible for them. If the LA remains responsible, it cannot use its legal power to cease to maintain the EHCP on this ground.
Case law has said that when considering whether or not a child or young person is in its area, LAs must consider whether their absence means they are no longer ordinarily or habitually resident: and the duration of any absence alone won’t determine this. All the specific circumstances must be considered.
If the LA consults with you about ceasing an EHCP because your child or young person will be away from the LA area for a period of time, make clear all the relevant circumstances which show the LA remains responsible for them.
This may include:
- Housing arrangements (for example, keeping your home whilst being out of the area)
- Contact arrangements (for example, for returning to the LA during the period of absence), and
- Employment arrangements (for example, if the absence is temporary due to a parent’s work secondment or deployment).
In this situation, if you are making suitable alternative arrangements during the absence the LA could “pause” or “freeze” providing the EHCP whilst your child or young person is physically out of the area but continue to maintain it.
Ground 2 - it is no longer necessary to maintain the EHCP
Situations in which an EHCP would no longer be necessary could include the child or young person no longer needing the provision set out in the EHCP.
As a first step the LA will need to identify and consider what special educational provision is required. Only then can it decide whether it is no longer required or what the appropriate placement may be.
The LA should ask itself whether the child or young person would meet the test for preparing and maintaining an EHCP.
If the answer is ‘yes’, an EHCP would necessary under section 37(1) CFA 2014.
For a young person over 18, the LA must consider whether the educational or training outcomes in the EHCP have been achieved.
The LA must have proper regard to whether the outcomes have been achieved. If they have not, that is an indication that the special educational provision should continue. However, the LA cannot cease to maintain an EHCP just because the outcomes have been achieved – they should consider whether it is necessary for new outcomes to be set.
The SEN and Disability Code of Practice says....
“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” (paragraph 9.151).
Some key legal points on this ground are:
- Case law has made clear that the tribunal will reject any suggestion that getting qualifications is an essential element of education. Getting qualifications may not be a young person’s goal but that does not mean that they do not require, or would not benefit from, special educational provision.
- Case law has also confirmed that whilst any further achievements may be small, they will still be valuable for the young person in their adult life.
- Case law has clarified that the LA must not focus simply on the academic learning element of education but must consider the broader view of education and training set out in section 2 and 15ZA(8) of the Education Act 1996 and section 21 of the CFA 2014.
- Case law has made clear that the law does not require a person to be able to reach a certain level of progress or for certain skills to reach a particular level for an EHCP to be necessary. The potential for learning may be a relevant factor when thinking about necessity, but a specified amount of potential is not: a particular level of learning potential is not an essential prerequisite for an EHCP.
Will the provision stop straight away?
If a cease to maintain notice is issued, the LA is not allowed to simply stop funding the provision straight away.
If you decide not to appeal the decision, then the LA must keep the provision in place at least until your right of appeal has expired.
If the decision concerns a child, it is the parent who has the right of appeal.
If the decision concerns a young person, then it is the young person who has the right of appeal. Where a young person cannot make a particular decision for themselves, because they ‘lack capacity’ under the Mental Capacity Act 2005, their parent or another representative can appeal on their behalf.
evidence
The LA said the EHCP is no longer necessary...
Sources of evidence you could consider using to show why the EHCP is still necessary include:
- Evidence from the school or college setting out, for example, details of the SEN support available in a mainstream school, college or other setting. You can use this to show that such support would not be sufficient to meet your child or young person’s SEN
- Expert reports showing that your child or young person’s SEN or requirements for special educational provision have not changed and that they still require the provision within their EHCP
- If your child’s SEN or provision requirements have changed (maybe they need more or a different type of provision), expert reports showing your child or young person’s current SEN or the special educational provision they now require, and that they still need provision through an EHCP, and
- Evidence from your child or young person themselves, from a third party (such as parents or a support worker) if appropriate, about the level of support that they still require and the effect stopping the EHCP would have on them.
The LA said it is no longer responsible...
The LA is responsible for your child or young person if:
- they are in the LA’s area, and
- they have been either identified by the LA as someone who has or may have SEN or brought to the LA's attention as someone who has or may have SEN.
If the LA has based its decision to cease to maintain the EHCP on this reason, it will need to show why it is not responsible. You will also want to show why the LA is still responsible for your child or young person.
LA REASON
| Have started/ are starting at university but are (or will be) taking a level 3 course (and not a level 4 course) | You should explain that the LA remains responsible, because it is the level of the course that is relevant and not the setting that delivers it. You can use evidence from your course provider as to the level of the course you are on/ due to start and explain why your EHCP is still necessary. |
| Have started part-time paid work | You should explain that the EHCP remains necessary while you continue your education or training part-time. Use evidence to show this. The legal definition of training includes part-time training (section 15ZA Education Act 1996). |
| A young person not in education, training or employment | You should highlight the following: If you are under 18 and not receiving education or training: The LA cannot simply cease the EHCP in this case. It needs first to have reviewed the EHCP and amended it where appropriate, to make sure that you continue to receive training. The only time the LA could cease the EHCP in this situation is if it is no longer necessary for special educational provision to be made for you through your EHCP (regulation 29 of The SEND Regulations 2014). Explain what further training you would like and show why your EHC plan is still necessary (for example, because you cannot access the provision you need without it). If you are 18 or over and not receiving education or training at your school or college: If you have stopped going to the setting named in your EHCP and aren’t receiving education or training, the LA cannot simply cease your plan. First, it needs to review the plan with you. If you want to go back to education or training and that would be appropriate for you, it must amend your EHCP as it thinks necessary (regulation 30 of The SEND Regulations 2014). If you want to go back to education or training you should explain that fact, explain why going back to education or training would be appropriate for you, and show why your EHCP is still necessary (for example, because you cannot access the provision you need without it). |
| Have left the LA’s area | Show your child or young person remains ordinarily resident in the area if they plan to return. Being in an LA’s area may involve physically being present in it, but this isn’t the definitive test. Explain all the relevant facts which show that the LA remains responsible. For example, you could explain the following if relevant:
Children and young people who are temporarily absent from the LA’s area but remain ordinarily resident there could include children in care on temporary placements, children accompanying parents deployed abroad or to a different part of England for their job, or children who live with separated parents in different LAs. It will always depend on the facts, so show all relevant circumstances. |
FILLING OUT THE SEND 35 FORM
The SEND Appeal forms are online PDF’s and unless you have specific software on your laptop, you are unable to save and then return to the form.
We recommend using a separate word document, you can either copy and paste into the boxes on the form, or if there is not enough room (the boxes do not expand) you can type in the boxes, “please see separate sheet” in the boxes and set your reasons out properly in a separate document. send these as attachments with the appeal form.
There is now an online form for all appeals you need all your paperwork ready to upload to be able to go through the form.
YOUR REASONS FOR APPEAL ARE WHERE YOU SET OUT WHY YOU THINK THE LAs DECISION IS WRONG
- Make a note of your appeal deadline as soon as you receive it
- Keep it short and to the point, answers clear, organised, concise, and to the point
- Do not overwhelm the SEND Tribunal with irrelevant evidence and history. If there is a long history of difficulties between you and the LA, let the evidence (for example, letters between you and the LA) speak for itself.
- Back up your points with evidence. Include evidence from professional reports, statements about needs and provision, and the school you want.
- Refer to the legal issues and your own evidence documents for each of your points
- Do not worry if you do not have all your evidence ready to send it with the appeal form. You can continue to submit evidence after your appeal has been registered with the SEND Tribunal
If you can do so, it is best to send in all your written evidence with your appeal form.
That way, you have the main points of your case set out with supporting evidence right from the start, this then allows the LA to respond properly.
There will be a ‘final evidence deadline,’ so if you think you need to send in evidence later in the process, you can tell the SEND Tribunal what you expect to get and when by. Do make sure to submit everything by the deadline you are given.
- Separate your points into paragraphs
- Number your paragraphs or organise them under headings
- Ensure you fill in the form correctly
- Make copies of your bundle and keep the originals for yourself.
WHEN YOU LODGE THE APPEAL, YOU WILL NEED...
- A signed and dated letter from the LA giving you the right of appeal
- Mediation certificate – not required for Section I only appeals
- Completed SEND 35 form, with your reasons for making the appeal
- Final EHCP and all the documents listed in Section K
- Evidence - To support your appeal (you can add to this later up until the Tribunal’s evidence deadline so don’t let this delay submitting your appeal.
- A list of all the documents - All of the documents enclosed with the application (it will be helpful to the Tribunal if you can put your evidence in chronological order and then write out a list explaining what each document is.
If you are having difficulty getting information which is relevant to your case from the LA, you can write to the SEND Tribunal explaining what it is and ask the SEND Tribunal for a ‘direction’ to make the LA release it.
You should use the Request for Changes form to do this.
Unless the LA has a good reason for not providing the information the SEND Tribunal will order the LA to release it.
EHCP CHECKLIST
Make a note of your appeal deadline.
Signed LA decision letter
Signed mediation certificate
Complete SEND35 appeal form with your reasons
The EHCP and all documents listed in Section K
Evidence to support the appeal
Add a chronological list of all the documents enclosed
Make scans/photocopies of your appeal, keep the originals for your records
Register your appeal: submit a COPY of your appeal to the SEND Tribunal
Submit any further evidence that is relevant up until the evidence deadline
Where to submit your appeal -
Do not send original documents to the Tribunal.
Use photocopies or scanned documents and keep the originals.
Do not send photos of reports as they can easily cause your report to exceed the Tribunal’s 14MB attachment data limit and may not be received
Email send@justice.gov.uk write in the subject line of your email: ‘New Appeal’.
Telephone number to ask questions or to confirm receipt: 0300 303 5857
