Keep up to date with latest legal developments
Unlike Statements of SEN, EHC Plans are available to young adults under the age of 25. However, higher education is specifically excluded. In a recent decision (Royal Borough of Kensington & Chelsea v GG (SEN)  UKUT 141 (AAC) the Upper Tribunal considered the nature of that exclusion and the application of the Children & Families Act to education provided by or under arrangement with institutions within the higher education sector.
The appeal arose from a local authority’s refusal to make arrangements to secure a statutory assessment of a young person’s needs under section 36 of the Act. The reason given for this refusal was that the young person, G, had enrolled on an Open University course and was consequently no longer the authority’s responsibility. The authority relied on par. 9.201 of the SEN Code of Practice which states that a local authority is no longer responsible for a young person once he or she ‘enters higher education.’
The matter ultimately came before the Upper Tribunal, which agreed that the local authority had been wrong to refuse the assessment on such grounds.
The Upper Tribunal accepted that functions under Part 3 of the 2014 Act could not be exercised to support a young person through higher education and that an institution within the higher education sector could not be named in section I of an EHC Plan.
HOWEVER, at the same time, the Upper Tribunal saw no reason why preparing a person for the requirements of higher education should be left out of account as this could amount to a form of education that was not itself higher education. Nor did it follow that a course would necessarily be a higher education course because it was provided by, or under arrangement with, an institution within the higher education sector. It was a young person’s prerogative to be uncertain about the future, and as the Upper Tribunal put it:
‘One cannot expect all young persons to present with clearly formed plans about their educational future. A vague aspiration to pursue HE or the inclusion of HE amongst the educational options that a young person is thinking of pursuing should not be seized upon as a reason to exclude a young person from the CFA 2014 system of entitlements. In this respect, local authorities should bear in mind their general obligations under section 19 and 32 CFA 2014. They may need to explain to a young person that, if he wishes to pursue HE, the CFA 2014 cannot operate to support him through a course of HE.’
The Upper Tribunal also expressed the view that a local authority might even be required to conduct an assessment in respect of a young person who was formally enrolled on a course of higher education, for example, if that young person was experiencing some adverse health event or for some other reason was unable to cope so that, in the near future, he or she wished to pursue a less demanding course of further education instead.
This decision is surely good news for young learners with SEN, and for their families.
The full decision can be viewed here. http://www.bailii.org/uk/cases/UKUT/AAC/2017/141.pdf