Our SEND expert, Ed Duff is back to answer another reader’s question about Post-18 EHCP and her son’s specific needs to improve his independence skills, which she feels would be best achieved in a residential college.
Q. Post-18 EHCP
My son has an EHCP with a high level of support. He is 18 and will finish sixth form college next summer. Academically, he will hopefully have gained 3 A Levels. However, socially and emotionally he is still completely dependent on me.
He has severe Dyspraxia, Asperger’s, Auditory Processing Disorder, other sensory processing difficulties and traits of ADD and OCD. He suffers from low self-esteem, high levels of anxiety and has very poor self-help skills.
My question is: what statutory obligations do the local authority have to maintain his EHCP and find a new placement where he can have intensive input to improve his independence skills?
I feel he needs to attend a residential college for a year or two, somewhere where he can access intensive intervention. I don’t think he will be able to learn to live independently unless he moves to a residential placement.
He would eventually like to go to university, but he is so dependent, he is not ready to do this. Most colleges I have found don’t seem to cater for young people who have Level 3 qualifications. He has had a social care transition assessment and he meets that criteria, but they concluded I am meeting all of his needs.
Any advice on legal position, local authority obligations etc would be gratefully received.
The Children and Families Act increased the age range for young people to be provided with additional support for their special educational needs. Under the system of Statement of Special Educational Needs, the Statement had to lapse, at the latest, when the young person turned 19 years old.
Education Health and Care Plans (EHCPs) however, can remain in place for a young person until the age of 25 years.
The EHCP should remain in place provided that:
- It remains necessary.
- The local authority remains responsible for the young person.
- The young person remains in education, but has not commenced Higher Education.
The second two are fairly straightforward. As long as the young person remains in the local authority’s area, and has not moved to Higher Education, then the EHCP, in theory, can remain in place.
The difficult issue is whether the EHCP remains ‘necessary’. That is the same test as always.
If the young person has special educational needs, then the necessary special educational provision needs to be determined. If that provision cannot be made from with the resources of a maintained school/college, then an EHCP would be necessary. Particularly relevant for older pupils, the SEND Code of Practice requires that the provision for young people focuses on establishing independent living skills, community engagement and, so far as is possible, employability.
It would seem from the message, that you have particular concerns about independent living skills. Often, in my experience, local authorities are indicating that the development of independent living skills is more a function for social care rather than education. This is not necessarily correct. As set out above, the SEND Code of Practice makes plain that independent living is an educational outcome.
Equally, any provision that has the effect of ‘educating or training’ a young person is to be considered ‘special educational provision’. Accordingly, the training for independent living skills would likely be special educational provision triggering the need for an EHCP, if the college is not able to provide the form or level of support required.
Whilst the provision for some support for independent living can be secured from social care, it is unlikely to be to the same level as can be secured via an EHCP. Equally, provision via social care cannot be appealed in the same way as SEN provision and lacks the enforceability of an EHCP.
At the next annual review, you should look to discuss with the local authority the next placement you want to move to. At the annual review, ideally, you need to express a preference for the next placement. Following the annual review, the local authority will need to make a decision about whether or not to comply with that preference. If the local authority does not, you will secure a right of appeal to the Tribunal.
Ed Duff is Senior Associate Solicitor in the Education Law Department at HCB Widdows Mason.
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