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ARTICLE: Post-19 Conundrum for Young People with Special Educational Needs

11/11/2016

A lead DFE SEN Advisor once said to me that he expected Education Health and Care (EHC) Plans to reduce for those youngsters aged 19 + and that he could not see high demand in this area. I politely disagreed and suggested that it would be the tipping point which might break some local authorities. You may ask why?  

What has changed?

The introduction of the Children and Families Act 2014 allows an EHC Plan to be maintained until the age of 25. However, the Act did not introduce a right of education until the age of 25. Where does this leave local authorities or young people?  The answer, in a conundrum. This article will explore why.

Out with the Old...

Under the system of Learning Disability Assessments (LDA) local authorities had a degree of control over the placements it would fund for young people post-19, and in particular courses for those with profound and complex difficulties who were not likely to progress into higher education.

Under this system, there was no real scrutiny of local authority decision making or a right for the young person to appeal against the contents of an LDA to an independent Tribunal. In fact, if the local authority refused funding for post-19 provision there was no real come back for the local authority at all.

Under the LDA system it would not be uncommon for local authorities to refuse funding of post-19 placements on the grounds that the young person’s needs were such that there was no educational qualifications that could be obtained. 

Demonstrating clear progression was also a key ingredient in being awarded funding from the Education Funding Agency. As a consequence of this, the number of young people receiving specialist education via an LDA was relatively low and could, to a degree be controlled by the local authority. 

What has changed?

The Children and Families Act drastically alters the landscape for post-19 education and raises a number of important considerations:

  • The legislation does not identify a specific cut off point when education can lawfully be refused by a local authority. However, bizarrely neither does it provide an entitlement to education until the age of 25. 
  • Young people have the right to ask for EHC Plans from the ages 16 to 25 whether they are in education or not.
  • Unless certain prescribed circumstances arise the EHC Plan will be in force until it is ceased by the local authority and potentially up to the age of 25.
  • There will be a right of appeal to the First Tier Tribunal where the local authority refuses to carry out an EHC Needs Assessment or refuses to issue an EHC Plan for young people between the ages of 16 and 25. 
  • Young people, with the support of their parents, are now able to challenge the provision offered or not offered to an independent Tribunal. 

The extended scope of the Act means that local authorities are now required to identify and support young people within the further education sector. This will require them to be more directly involved than under the LDA process and on a continuing basis (at least until 25). Frankly, there are limited resources to be able to do this.

The Conundrum

The problem with the new system is that there is no defined cut off point when education has been deemed to have been completed for a young person, other than when they have reached the age of 25. This results in arbitrary decision making and a post code lottery as to whether post-19 education will be funded or not.

Whilst the SEN Code talks of meeting identified “outcomes” as a possible measure, this does not mean that an EHC Plan would cease or would no longer be necessary just because the young person has either reached the age of 19 or that they have met identified outcomes. There may be new outcomes which will require special educational needs provision. 

Currently, we are supporting a number of families and young people where the local authority has ceased a young person's EHC Plan for the following reasons-

  1. The young person’s needs have “plateaued” and they are not likely to achieve qualifications at a higher level.

  2. The young person’s difficulties are best met via adult social care services.

The problem with this approach and these reasons, are that they are not reasons to cease an EHC Plan. EHC Plans must be maintained so long as they are “necessary” and in deciding whether a Plan should be ceased the local authority must consider a number of factors including:

“The circumstances where a local authority may determine that it is no longer necessary for the EHC plan to be maintained include where the child or young person no longer requires the special educational provision specified in the EHC plan. When deciding whether a young person aged 19 or over no longer needs the special educational provision specified in the EHC plan, a local authority must take account of whether the education or training outcomes specified in the EHC plan have been achieved. Local authorities must not cease to maintain the EHC plan simply because the young person is aged 19 or over.” [9:200 SEN Code of Practice]

Thus, this test is very much open to intepretation.

Is further education or training necessary?

Education Funding Agency Guidance says that for those with EHC Plans who need to stay in education beyond 19, the core aim of this further education must be to prepare them for adulthood within an adult-orientated environment. This should include opportunities to experience the world of work and to develop as far as possible independent living skills and the ability to make independent choices and decisions in an adult context.

In deciding whether post-19 education is required the local authority must also understand what is meant by “education”. Many local authorities assume that education post-19 is only required if it leads to specific qualifications being achieved by the young person. This is in keeping with the requirement to show progression under the LDA system.

However, the Children and Families Act and SEN Code of Practice focusses on meeting “outcomes” and not gaining qualifications. The agreed "outcomes" need not necessarily include achieving particular qualifications. Under SEN law the notion of education is much broader and when considering whether education is needed the leading case of Bromley LBC v Special Educational Needs Tribunal and Others (1999) ELR 260) should be considered: 

  • Education need not only be ‘scholastic instruction’ can include treatment such as physical and emotional assistance and in this case included, occupational and physio-therapy (although some may be purely non-educational), and speech and language therapy.
  • Education is...‘systematic instruction, schooling or training given to the young … in preparation for … life’. 
  • “If, as is undoubtedly clear, S needs to learn eating and drinking skills then, as it seems to me, to assist him in learning those skills will be an educational provision for him.”

Indeed, in the recent case of Buckinghamshire County Council v SJ [2016] UKUT 0254 (AAC), the Upper Tier ruled:

  • "I reject any suggestion that the attainment of qualifications is an essential element of education. For many of those to whom the 2014 Act and Regulations apply, attaining any qualifications at all is not an option. That does not mean that they do require, or would not benefit from, special educational provision".
  • "Necessity has to be judged practically and in light of the reality, not by reference to attainments that are more theoretical than real".

These findings were made in circumstances where the young person had made very slow progress despite receiving specialist residential provision up to the age of 19. Further, the Upper Tier construed a recommendation made by an educational psychologist for the young person to access a "learning environment" to mean an educational setting. 

What does this mean?

What this all means is that local authorities cannot simply deny post-19 education for young people because they have complex needs and believe they cannot attain higher level qualifications.

Local authorities will have to be very clear on the outcomes they are expecting young people to achieve in their EHC Plans. Whether that then requires an educational placement to be funded to meet those outcomes will be a matter for further evaluation. To attempt to address the minefield created by the DfE, local authorities should at least establish guidelines for funding post-19 provision, which would ensure that decisions are taken consistently. It is bizarre that some young people have fully funded post 19 placements and others have been left with nothing. 

Why a conundrum?

To put it simply local authorities are now facing specific challenges to their decision making at all levels which they are not arguably prepared for in the post 19 arena, having been told that this is where a drop off can be expected in the number of EHC Plans.

At pre-16 there are at least established practices and an understanding of what is required, even if implementation is difficult.

At post 16 and post 19, the picture is fraught with difficulties because those in decision making positions have not been exposed to the same level of challenge and scrutiny. They have not had to endure the Tribunal process and had their evidence for decisions scrutinised.

Additionally, a critical question to consider in deciding whether an EHC Plan should be maintained is whether there will be a continuing need for special educational needs provision. This is so open ended and is very hard to be definitive.  What is clear is that a local authority will need very clear evidence to justify a cessation of an EHC Plan and the denial of further education to young people beyond 19.  

The Need for Guidance

The approach of the DfE has been woefully lacking to ensure that sufficient provision is available to those young people aged 19+ and in particular:

  1. The Government has so far refused to allow special schools to offer Post 19 provision and has restricted the use of EFA funding in this area to these providers. From 2015-16, the dedicated schools grant (DSG) cannot be used to fund places for or incur other expenditure (i.e. top-up funding) on 19 to 25 year olds in special schools (maintained and non-maintained) and special academies. 

  2. There is currently no statutory provision which allows the Governing Body of a School to extend their provision from 19 to 25.

  3. The quality of evidence and the content of EHC Plans for young people is frankly very poor and in the author’s view will not stand up to scrutiny if appealed to the Tribunal. The reality is that there is limited professional capacity to carry out the kind of assessments that are required to justify the cessation of an EHC Plan.

  4. Outcomes are not being clearly defined and therefore, it may be very difficult to justify a cessation of an EHC Plan or the denial of further education.

  5. There is an absence of joined up working with adult social care and therefore the transition to adult service is not straightforward. 

  6. Local authority budgets for post 19 education are likely to balloon. This is oblivion for local authorities because it will occur in an area where there has previously been a low level of challenge and which they have been able to control. With additional transport and therapy costs likely, this whole area could have significant financial repercussions for a local authority.

  7. The system introduced by the Children and Families Act is ill-suited to further education and is simply not comparable with the LDA process which it has succeeded.

For Parents and Young People it is vital that the entitlement to education post 19 is clearly stated to avoid the post code lottery which is currently occuring with some Young People obtaining funding and others not.

The Government has underestimated the demands for EHC Plans and in particular the educational requirements for young people aged 19+, particularly those with severe and complex needs. It is not realistic to expect there to be a cut off at this age group and given the nature of the courses followed, they represent long term funding commitments which local authorities do not have the funding to cover and did not envisage covering.

Most local authorities have ignored the problems and are prepared to “dig-in” to see what happens as the system evolves; however, this leads to great inequity where some young people have funded post 19 courses and others do not. The DfE should not allow this important area to be dictated by those who have the means to pursue a Tribunal appeal and must issue new legislation to set down a proper and fair framework for those young people seeking education post 19 and for the local authorities that have to decide the issue.

 

If you are having difficulties securing post 19 education or simply wish to seek initial advice contact us at advice@sen4you.co.uk or on 01908 889082. You can also visit our webiste - www.sen4you.co.uk

Just received the decision, dismissed on all counts. Many thanks for supporting us through this

Headteacher, DDA Claim

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