Does a young person need an EHCP to get extra support in an FE college?

Parent Question:

Daughter age 21. Statemented since age 5. In residential special college with 139a . Mainstream FE college has offered her a place (requires 1:1 support) and local authority has just turned down EHCP . Given her a My Support Plan. College say they cannot support her without EHCP. She cannot use public transport without support.

EA have said: 

  • Essentially, for young people without an EHCP the funding for post 19 is through the skills Funding Agency, not the EFA & LA. This does not meant that additional support is available. Skills FA do provide additional learner support.
  • So, it should not be the case that the college cannot offer without an EHCP in place. There may be exemptions to charges as a post 19 ‘adult’ course charges will come into play. There are exemptions, and circumstances may be that full charges will not be made. College can explain the criteria.

Will be starting the appeal process next week (whatever that actually means). Can you help or advise?

Many, many thanks for such a superb site. I've stumbled upon it via the power of Google.

Marguerite Hat replies

Marguerite answers:

Firstly, congratulations to your daughter for gaining a place at college. 

Secondly, all young people with a LDA (or a statement) should transfer to an EHC plan unless something has happened which means that their individual needs have changed (so that they no longer need a statement or learning difficulty assessment). The legal test for issuing an EHC plan is no higher than it was for issuing a statement. Additionally, The SEN Minister, Ed Timpson, has stated (on video to SNJ) that no one should lose their statutory support as a result of the changes to the new system. 

The Transition Guidance, 2015 states the following: 

3.15     From 1 September 2016, all young people who had received support as a result of an LDA in further education and training who continue in further education or training beyond that point and who need an EHC plan must have one. 

4.23    Young people in further education or training who receive support to meet their SEN as a result of an LDA and who intend to continue in education beyond 31 August 2016 can choose either to:

  • continue for the time being to receive their support as a result of their LDA (where it is still required); or
  • request an EHC needs assessment at any time.

It is expected that the LA will carry out this assessment for all young people with a LDA and then issue them with EHC plans unless there is a particular reason why they think a young person no longer needs the same level of support. Even if you do not trigger an EHC needs assessment, the LA must transfer all LDAs to EHC plans by April 2016. If the LA does not agree with that request, then the decision can be appealed to the SEND Tribunal.

Funding: 

For funding purposes, a high needs student is defined as:

  • a young person aged 16 to 18 who requires additional support costing over £6,000;
  • any young person aged 19 to 25 subject to a Learning Difficulty Assessment (LDA) or an EHC plan who requires additional support costing over £6,000.

 In all instances, a high needs student’s placement must be commissioned by the local authority and include the top-up funding (element 3) to be paid to an institution. An agreement must be in place between the two parties to that effect. The funding system has two aspects which are:

  • place funding known as elements 1 and 2 for post-16 institutions (except special schools and special academies)
  • top-up funding (known as element 3 for post-16 institutions)

 Place funding includes the funding which pupils and students at an institution attract for their core education and basic programmes and funding to meet the first £6,000 of additional support costs. Top-up funding is that which is required over and above place funding, to enable a pupil or student with high needs to participate in education and learning.

 Students aged 19 to 24 without an EHC plan or LDA: 

For students with SEND aged 19 to 24 without an EHC plan or LDA, the Skills Funding Agency (SFA) assumes the responsibility for commissioning provision even when the support costs exceed £6,000. In this situation, learning support funding should be used. Where a young person aged 19 (or over but under 25) arrives at college and, based on the institution’s assessment, is likely to need additional support costing over £6,000, the institution can request a statutory assessment for an EHC plan from the young person’s local authority. In these cases, the local authority has up to 6 weeks to decide whether to conduct an assessment. While the decision to assess or actual assessment period is ongoing, the institution should enrol the learner as an adult learner funded by the SFA. If the learner subsequently goes on to receive an EHC plan, then the institution should make a change to the individual learner record (ILR) and the learner would be funded by EFA. 

I suspect that the College are wanting to claim the top-up funding (element 3) and your LA is stating her needs can be met without an EHCP. Hence, why they’ve issued a “My Support Plan” which is not a legal document.   

You’ve mentioned that you are going to be starting the appeal’s process, you may find the ASK IPSEA page on our website helpful or contact IPSEA.org.uk directly. IPSEA provide free, independent, legally based advice and support to parents who have children that have Special Educational Needs and/ or a disability as they navigate the education system. 

However, you shouldn't need to appeal - the LA are clearly breaking the law and you perhaps should contact your case officer in the first instance and pass on this information above to give them a chance to rectify their error, because there is no way they can win an appeal. If they refuse, then appeal. 

I hope this is useful