Once a child with SEND – including those with EHCPs – reaches the age of 16 there is a presumption in law that the young person themselves will be responsible for dealing with any SEND issues.
This includes making an appeal to the SENDIST Tribunal if necessary.
Since EHCPs were introduced in 2014, there is the possibility that support via an EHCP can continue up to the age of 25. However, this does not mean that there is an automatic entitlement, or an expectation that those with an EHCP should all remain in education until age 25.
The local authority may cease to maintain a plan for a 19 to 25 year-old if it decides that it is no longer necessary.
The SEND Code of Practice emphasises that for young people the focus should be on preparation for adulthood. With high aspirations, and the right support, the vast majority of young people can go on to achieve successful long-term outcomes in adult life. Local authorities, education providers and their partners should work together to help young people to realise their ambitions in relation to:
- higher education and/or employment – including exploring different employment options, such as support for becoming self-employed and help from supported employment agencies.
- independent living – enabling people to have choice and control over their lives and the support they receive, their accommodation and living arrangements, including supported living.
- participating in society – including having friends and supportive relationships, and participating in, and contributing to, the local community.
- being as healthy as possible in adult life.
In line with preparing young people for adulthood, a local authority must not cease an EHC plan simply because a young person is aged 19 or over.
Young people with EHC Plans may need longer in education or training in order to achieve their outcomes and make an effective transition into adulthood.
It should be noted that some FE Colleges only offer ‘part-time’ courses. There is, however, an expectation that full time provision will need to be available for those with EHCPs. If a part time College course is proposed by the LA, it may be necessary to identify other appropriate activities such as training activities or day centre provision for the remainder of the week.
In relation to the type of education that can be made via an EHCP, there is important case-law in Buckinghamshire County Council v SJ [2016] UKUT 0254 (AAC):
“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 not require, or would not benefit from, special educational provision.”
It should be noted that once a young person with SEND reaches the age of 18 their parent has no responsibility to facilitate their attendance at their educational placement.
This means there can be no assumption that parents will take that young person to their college placement.
Young people over compulsory school age have the right to participate in decisions about the provision that is made for them and be consulted about provision in their areas, although there is nothing to stop them asking their parents, or others to help them make the decision.
However, some young people, and possibly some parents, will not have the mental capacity to make certain decisions.
In cases where a person lacks mental capacity to make a particular decision, that decision will be taken by a representative on their behalf.
In the case of a young person who does not have such a representative, the decision will be taken by the young person’s parent.
The five key Mental Capacity principles are:
- It should be assumed that everyone can make their own decisions unless it is proved otherwise
- A person should have all the help and support possible to make and communicate their own decision before anyone concludes that they lack capacity to make their own decision
- A person should not be treated as lacking capacity just because they make an unwise decision
- Actions or decisions carried out on behalf of someone who lacks capacity must be in their best interests
- Actions or decisions carried out on behalf of someone who lacks capacity should limit their rights and freedom of action as little as possible