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Claimant wins appeal over duration of EHC Plan

An education, health and care (EHC) plan can in some situations extend to the day before a person’s 26th birthday, the Upper Tribunal has ruled.

Alex Line of Outer Temple Chambers acted for the applicant in JL (by EA) v Somerset County Council [2021] UKUT 324 (AAC).

He said the ruling by Upper Tribunal Judge Ward, setting aside the decision of the First-tier Tribunal (FTT), was of importance because it contained consideration of the meaning of the term ‘academic year’ and established that, in certain situations, an EHC Plan can extend to the day before a young person’s 26th birthday, "contrary to the commonly held understanding that EHC Plans extend only to the age of 25".

Line said: "This means that young people may be able to enjoy the legal protection and benefits of an Education Health Care Plan for an extra year, at a critical time in their transition to adulthood."

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Judge Ward said the FTT had found no provision that allowed a plan to be extended even though in this case a placement ideal for JL might not be completed because of the time limit.

JL submitted the plan should be extended because the Covid-19 pandemic had meant that a supported internship at a museum, which had been a key part of his special educational provision, had not materialised in the form anticipated, instead being restricted to remote working and with reduced hours.

Somerset argued that while it may exceptionally be possible to continue a plan to enable a young person to complete a qualification which would otherwise be missed, that was not the position here, where JL was receiving education but not at a college.

Judge Ward said it had clearly been envisaged that a plan could be extend to allow someone to complete a qualification.

For example, someone might begin a two-year vocational course a few months after their 23rd birthday and “it would be a startling conclusion if the FTT could not specify it because, on turning 25, they would cease to be a ‘young person’”.

He said the legislator “has chosen not to exclude that possibility, but to leave the continuation of the plan thereafter in order to facilitate it to the discretion of the local authority.

“The fact that for JL the key form of special educational provision is a supported internship by way of provision otherwise than at a post-16 institution rather than a college course leading to a qualification is immaterial.”

Mark Smulian

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