Withdrawing an EHCP plan: lessons for schools and colleges

This case has important implications for schools and colleges supporting children with Special Educational Needs who move between, and out of, local authority areas.

Background 

The case concerned the child of a Royal Navy officer. The child, who accompanied the rest of his family when his father was deployed abroad, has Special Educational Needs and an EHCP maintained by the local authority Hampshire County Council. An EHCP is a legally binding document which secures additional educational provision for children who need it. 

The move took place in August 2021. It was understood by the local authority that the family would be returning home two years later, but whilst it was initially agreed that the EHCP would be "paused", the local authority later decided to cease to maintain the child's EHCP. 

The local authority said that it was not necessary to maintain the EHCP whilst the child was not resident in the area, and that his needs would be reassessed though an expedited process on return. The local authority did not carry out a consultation with the family or the child's school prior to this decision or notify the family of their right to appeal in the SEND Tribunal. 

First-tier Tribunal

The family appealed the decision with the First-Tier Tribunal. At the hearing, the local authority conceded that it had failed to consult the family in breach of its obligations under s.45(5)(c) of the Children and Families Act 2014 and reg 31(1) of the Special Educational Needs and Disability Regulations 2014.  

The First-tier Tribunal held that the local authority could not cease to maintain the EHCP. Doing so in circumstances where he was expected to return from abroad created significant disadvantage compared with children moving between UK local authorities. The authority should have implemented a “pause” to the EHCP instead, as requiring the family to start the process again could result in the child being without the required provision for a significant period of time. 

The Upper Tribunal upheld the findings of the First-tier Tribunal. The local authority was granted permission to appeal to the Court of Appeal. 

Decision of the Court of Appeal

The appeal was brought on three grounds. The Court of Appeal dismissed the local authority's appeal on all three and upheld the decision of the Upper and First-tier Tribunals. 

Jurisdiction

The first ground questioned the jurisdiction of the First-tier Tribunal to uphold an appeal based on procedural errors, i.e. the LA's failure to consult, committed before the decision to cease to maintain the EHCP. The Court held that the First-tier Tribunal did have the power to consider procedural failings. The Court of Appeal reiterated the important requirement to consult families. It emphasised that: 'Consultation with the child or young person, the child’s parents and the child’s school is of fundamental importance to the fair and proper operation of the system.'

Residence 

Section 51 of the Act makes a local authority responsible for a child or young person if they are in the local authority's area and have, or may have, SEN. The Court confirmed that ‘in the area’ is defined not by whether a child is physically present; but where the "ordinary residence" test is satisfied. On the facts of an individual case, is the period of residence abroad temporary or permanent? Is there evidence of intention to return to the UK, or a fixed end point for this time abroad? 

Here, the family were deployed to Dubai on a defined, temporary basis, had maintained ownership of their home in Hampshire, and maintained annual contact with relatives in the UK. 

Implementation 

The Court of Appeal confirmed that a local authority has the ability to lawfully maintain an EHCP, even if it cannot practically implement the provision while a child is temporarily abroad, where parents arrange alternative and suitable provision. The LA can also use its power to reassess and potentially amend provision in the EHCP whilst a child is abroad. The local authority should have “paused” the plan, instead of ceasing to maintain it entirely. 

What this means for schools and colleges in England and Wales

Schools and families have a legal expectation to be consulted by a local authority who is contemplating a decision in respect of a child's EHCP. Schools should be aware of the strict procedural requirements, as well as the right of parents to bring an appeal against any cease to maintain decision made. 

The Court’s decision also confirms that a child's absence from an area does not automatically mean their EHCP can cease to be maintained. This brings in clearly defined protection, particularly for SEN children from military families, children in care settings, and children who spend time across different countries because their parents are divorced or separated. 

Whether the absence is temporary or permanent is a question of fact and does not hinge on whether a child is 'physically present' in the area. Schools and colleges should identify, for example, whether a child will be absent for a fixed period of time, even if this is for several years, or an indefinite period. Schools should work closely with parents to ensure this information is communicated to the local authority responsible for a child's EHCP, and all parties involved must ensure clear and collaborative planning around transitions in and out of an educational setting.

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