EHC plans normally come to an end when a young person turns 25 because at that point they are no longer a ‘young person’ and so the statutory regime ceases to apply to them. However, local authorities have a discretion under section 46 of the Children and Families Act 2014 to continue to maintain an EHC plan until the end of the academic year in which a young person turns 25. That discretion was considered in the recent decision of the Upper Tribunal JL (by EA) v Somerset County Council [2021] UKUT 324 (AAC).
As is well known, the EHC plan regime in CFA 2014 applies to children and young persons. There are two key definitions for present purposes which local authorities should bear in mind: those of “young person” and “academic year”.
For the purposes of the CFA 2014, a “young person” is someone over compulsory school age but under the age of 25: section 83(2). In other words, once someone celebrates their 25th birthday they are no longer a ‘young person’ and so nothing in the EHC plan regime applies to them, hence why EHC plans normally come to an end at that point. However, section 46 confers a discretionary power on local authorities to continue to maintain a plan until the end of the academic year in which the young person turns 25. A plan cannot, though, be maintained beyond a young person’s 26th birthday.
The second relevant definition is that of “academic year”, which is found in regulation 46(1) of the SEN and Disability Regulations 2014. It differs according to the type of provision a young person has been receiving. If the young person has been attending an institution within the further education sector, then the academic year ends on 31st July (reg 46(1)(a)). If the young person has been receiving apprenticeship training then the academic year ends either on the date that the training finishes, or on the day before the young person attains the age of 26, if earlier (reg 46(1)(b)). Finally, in all other cases, the academic year ends on the day that the young person’s course of education or training is scheduled to end, or on the day before the young person attains the age of 26, if earlier (reg 46(1)(c)).
The relevant part of the Code of Practice reads as follows: “9.207 Support should generally cease at the end of the academic year, to allow young people to complete their programme of study. In the case of a young person who reaches their 25th birthday before their course has ended, the EHC plan can be maintained until the end of the academic year in which they turn 25 (or the day the apprenticeship or course ends, or the day before their 26th birthday if later).”
In JL, UTJ Ward gave the example of a person who, after their 23rd birthday, wanted to start a 2 year vocational course with a qualification and said it would be ‘startling’ if the First-tier Tribunal could not specify this provision in Section F simply because, on turning 25, they would cease to be a young person. The judge made clear that the legislation did not exclude that possibility but left the continuation of the plan thereafter in order to facilitate it to the discretion of the local authority. The fact that in this particular case the special educational provision in question was a supported internship by way of provision otherwise than at a post-16 institution rather than a college course leading to a qualification was held to be immaterial.
The first important point to note about the decision is that it was agreed by both parties and the UT that the power to continue an EHC plan beyond the 25th birthday is a matter for the discretion of the local authority and the First-tier Tribunal has no jurisdiction to order a local authority to exercise it so as to continue the plan. However, the UT held that the existence of the section 46 power to extend is a relevant factor for the First-tier Tribunal to consider when deciding what special educational provision it should specify in a plan.
The FTT had held that because the special educational provision being sought in the appeal would continue beyond the young person’s 25th birthday and there was no duty on a local authority to continue to maintain the EHC plan beyond this date, it could not be ordered. The UT held that this was wrong, the tribunal had erred in law by stopping where it did, and it could and should have taken into account the fact that the local authority would have the power to continue to maintain the EHC plan for the remainder of the academic year in which the young person turned 25.
In other words, where there is a dispute over the SEP in an EHC plan, local authorities will not be able to resist the provision sought simply because it would extend beyond the 25th birthday of the young person. The tribunal can and should take into account the section 46 power when making its decision.