AB v East Sussex County Council

When deciding whether to cease maintaining an EHC plan, a local authority or tribunal must make clear findings about the special educational provision the young person requires. It cannot answer the necessity question under section 45 merely by preferring one setting or a proposed transition to social care.

Provision delivered through social care remains special educational provision where it educates or trains the young person. Any proposed alternative arrangement must have a realistic practical prospect of meeting the identified provision. For a young person who has left education, Special Educational Needs Regulations 2014 require the authority to ascertain the young person’s wishes about returning to education or training, although those wishes may properly be obtained indirectly.

AB, acting as alternative person for O, appealed against the First-tier Tribunal’s decision upholding East Sussex County Council’s decision to cease maintaining O’s EHC plan. O was a young adult with substantial learning, developmental and mental-health needs. The First-tier Tribunal preferred evidence supporting a blended community-based provision and transition to adult social care, and held that an EHC plan was no longer necessary.

The appeal challenged, among other matters, the Tribunal’s failure to identify the special educational provision required, its focus on setting, and its treatment of O’s views about returning to education or training. The central issue was whether the Tribunal could lawfully uphold cessation without first making adequate findings about the provision O required and satisfying the safeguards in regulation 30.

1. Appeal allowed. The First-tier Tribunal erred in law. Its decision was set aside and the case was remitted to a wholly differently constituted First-tier Tribunal for an oral rehearing.

2. Under section 45 of the Children and Families Act 2014, the question is whether it remains necessary to maintain the EHC plan. The Tribunal had to identify the special educational provision required to meet O’s needs before it could decide that question. A recitation of evidence, even evidence which the Tribunal preferred, did not supply the necessary finding or adequate reasons.

3. The Tribunal instead compared formal education with an unspecified community-based adult social-care arrangement. That was impermissible without first identifying the provision required. It also failed to explain how its approach accorded with section 21(5), under which social-care provision that educates or trains a young person is treated as special educational provision.

4. The Tribunal was entitled to treat achievement of outcomes as a matter requiring regard rather than a checklist. Its conclusion on that discrete ground disclosed no error. Equally, the distinction between whether an adult social-care package would or could meet needs was not material. The practical question is whether there is a realistic prospect that the proposed arrangement can deliver the identified special educational provision.

5. Regulation 19 requires consultation and consideration of the young person’s views, wishes and feelings. Regulation 30(1) additionally requires the authority to ascertain the young person’s wishes about returning to education or training, unless it determines that return would be inappropriate. The wishes need not always be obtained directly, but the Tribunal had neither ascertained them nor lawfully determined the broader question of education and training. That was a further error of law.

• Upper Tribunal (Administrative Appeals Chamber): allowed AB’s appeal, set aside the First-tier Tribunal decision for error of law, and remitted the case to a fresh tribunal.
• First-tier Tribunal (Health, Education and Social Care Chamber): on 26 April 2023, upheld the local authority’s decision to cease maintaining O’s EHC plan.