One of the more enduring #SENDMyths concerns the degree to which provision in section F of an Education and Health Care Plan (EHC Plan) should set out exactly what that provision entails. Many local authorities, and even some schools, seem to believe that not only is it acceptable to describe provision in vague and general terms, but that this is actually what the law requires. In fact, the law says something quite different.
In short, it is the duty of the local authority to set out in section F all of the required Special Educational Provision (SEP) necessary to meet the Special Educational Needs (SEN) identified in Section B. This was the finding of the Court of Appeal in R v The Secretary of State for Education and Science ex parte E [1992] 1 FLR 377 – a case decided in relation to the previous regime of statements, but which remains applicable to EHC Plans.
The Special Educational Needs and Disabilities Code of Practice 2015 also makes clear (at paragraph 9.69) that in practice this means that “provision must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise, including where this support is secured through a Personal Budget”.
The First Tier Tribunal (SEND) has repeatedly confirmed that vague references to a child having ‘opportunities’ and/or ‘access to’ things, and to interventions being ‘regular’, as well as terms such as “would benefit from”, are inappropriate and do not comply with legal requirements set out above. Regular, for example could mean anything from once a day, to once a week, once a month, or even once a year. Inclusion of terms such as these in EHC Plans also makes it difficult (some might say deliberately so) for those working with children and young people, and their parents and carers, to know precisely what help they should be receiving. This in turn makes it difficult, or even impossible, for parents and carers to enforce delivery of the provision, since they are unable to point to what isn’t being provided but should be, effectively removing a key benefit of an EHC Plan.
The duty to specify and quantify remains regardless of the placement type, and is removed or even reduced where a child is attending a specialist school or college (whether maintained or independent). In the recent case of B-M and B-M v Oxfordshire County Council (SEN) (2018) UKUT 35 (AAC) HS/3005/2017) the judge rejected the suggestion that special schools required a degree of flexibility incompatible with specification, observing that there is no support in the authorities (previously decided cases) for the argument that for children in specialist provision the requirement of specificity can be abandoned.
It is similarly unacceptable to leave to the school the decision as to what SEP the child should receive (C v Special Educational Needs Tribunal and London Borough of Greenwich [1999] ELR 5), or to leave the provision open to variation, for example by providing for it to be reviewed after a term. If a local authority wants to amend provision in an EHC Plan they are already able to do so in consultation with the parents/carers or the young person themselves, and subject to a right of appeal following amendment as explicitly provided for in the legislation (E v Rotherham MBC [2002] ELR 266, [2001] EWHC Admin 432 and N v North Tyneside Borough Council [2010] EWCA Civ 135).
Finally, although it is not unlawful to include reference to banding in an EHC Plan, it cannot replace the actual provision that must be stipulated in section F. How a local authority chooses to manage its budgetary affairs with schools is a matter for them and entirely irrelevant to the wording of an EHC Plan. Simply put: if the provision is clearly stated in Section F then it must be delivered, (see section 42 Children and Families Act 2014) regardless of whether it exceeds the level of any (banding) funding that might also be stated in Section F. And it is precisely because local authorities are legally bound to ensure all provision is section F is delivered, that such provision must be set out clearly and with no scope for doubt or ambiguity about what it involves.
If you feel that the provision in your child or young person’s Education and Health Care Plan is lacking in specificity and/or is not properly quantified and you need someone in your corner to help you secure the education your child deserves, contact us today.
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