EM v Royal Borough of Windsor and Maidenhead

Whether an Education, Health and Care Plan remains necessary is a practical question under section 45 of the Children and Families 2014 Act. The inquiry is not confined to whether the specified special educational provision is still required. It may include whether necessary provision can be delivered without an EHC Plan.

Learning daily living, independence or vocational skills may constitute educational or training provision. The amount or expected level of learning is not subject to a minimum threshold. Where specialist evidence identifies continuing provision, the First-tier Tribunal must explain whether that provision is special educational provision and whether it can be delivered without an EHC Plan.

EM appealed against the decision of the Royal Borough of Windsor and Maidenhead to cease maintaining his EHC Plan. The First-tier Tribunal upheld that decision on 20 June 2023, concluding that EM was unlikely to acquire independence or employment skills beyond those capable of development through daily living or social care routines.

The appeal to the Upper Tribunal concerned whether the First-tier Tribunal had applied the correct statutory test and whether it had given adequate reasons, particularly concerning the nature of the continuing provision required and whether adult social care could provide it without an EHC Plan.

1. The appeal was allowed. The First-tier Tribunal’s decision involved an error of law and was set aside under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.
2. Section 45 of the Children and Families 2014 Act imposes a test of necessity. The circumstances in which maintenance is no longer necessary are not limited to cases where the specified special educational provision is no longer required. The question may include whether necessary provision can be provided without an EHC Plan.
3. The First-tier Tribunal wrongly treated the limited extent of EM’s potential learning, and the possibility of developing independence and employment skills through social care routines, as sufficient to determine necessity. The legislation does not require learning to reach a particular level or to concern particular subjects. Daily living and independence skills may be educational, just as vocational or academic skills may be.
4. The Tribunal also failed to identify what continuing provision was necessary, whether that provision fell within section 21, and whether it could in practice be delivered without an EHC Plan. Those omissions were material because the parties disputed whether speech and language therapy, occupational therapy, music therapy and other specialist input could be provided through adult social care.
5. Where specialist evidence identifies continuing special educational provision, the First-tier Tribunal must explain why that provision can be delivered without an EHC Plan if it reaches that conclusion. The appeal was remitted to a differently constituted First-tier Tribunal for a hearing and redetermination.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision and remitted the appeal for redetermination.
• First-tier Tribunal (Health, Education and Social Care Chamber): upheld the local authority’s decision on 20 June 2023.