The question of specificity in EHCPs revisited - when is enough enough?

LB of Redbridge v HO (SEN): [2020] UKUT 323 (AAC)

Those working with EHCPs will have heard many times over that provision in a Statement or Education, Health and Care Plan (EHCP) must ‘so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case - L v Clarke and Somerset CC [1998] ELR 129.

The EHCP is, after all, a legally binding document. Parents can only hold Local Authorities (LA) to account if the requirements of provision are clearly set out.

The counter argument is the need for flexibility and to allow schools and therapists to change provision according to the need of the child. Parents say that flexibility can lead to a risk of reduction of provision, which may be dependent on the availability of resources.

Judge Lane explains this at paragraph 16 of the decision:

‘The devil resides in the level of detail that the plan must contain The EHC plan is a legal document of an unusual type. Insofar as the Tribunal has made an order, the order must have sufficient certainty to be enforced in case of dispute. On the other hand, the plan is a living document for a developing pupil. The tension is between the certainty the parties, in particular the LA, need to comply with or enforce their respective duties and rights and the need for sufficient flexibility for the plan to remain relevant until the next review of the plan takes place.’

The Redbridge case reviews the question of specificity. This was an appeal by Redbridge LA. The provision in dispute was:

‘AK requires extracurricular support for one hour a week at home from a trusted and familiar psychologist’.

Judge Lane came to the conclusion that the disputed provision was:

• too vague in respect of content - it was unclear what the psychologist would be doing in the hour visits and therefore difficult for the LA to know if it was fulfilling its duties.
• ‘Trusted and familiar’ was found to be entirely subjective and dependent on the child and his mother and moreover pointed to delivery by a particular psychologist.
• was in any event unjustified on the evidence or based on insufficient reasons. 

The wording was removed.

How much detail is required?

The Redbridge case follows Worcestershire CC v SE [2020] UKUT 217 (AAC) in which Judge West examined the major cases on the question of specificity in EHCPs in depth. The Redbridge case is a helpful revisit of relevant case law. At paragraph 20 of Redbridge, Judge Lane sets out principle (x) from the Worcestershire case as a good summary:

‘ The contents of an EHCP have to be as specific and quantified as is necessary and appropriate in any particular case or in any particular aspect of a case, but the emphasis is on the EHCP being a realistic and practical document…’

The rationale for this, Judge Lane states, is at principle (ix):

‘ in distinguishing between cases where provision is sufficiently specific and those where it is not, it is important that the plan should not be counter-productive or hamper rather than help the provision which is appropriate for the child. The plan has to provide not just for the moment it is made, but for the future as well. If absolute precision is required, it can only be obtained by a continual process of revision of the plan, and the time involved in investigating and decision-making on exactly what is now required, with possible appeals, could disrupt the professional’s ability to provide what the child requires ad disrupt the child’s progress. A plan must allow professionals sufficient freedom to use their judgment on what to do in the circumstances as they are at the time. A tribunal is entitled to use its expertise to decide on the proper balance between precision and flexibility.’

When is enough enough?

Judge Lane set out the following principles at paragraph 21, largely derived from principles in previous case law:

1. The Plan must be clear about what the LA is required to provide.
2. The Plan is a free-standing legal document setting out the LA’s duties. Parties are entitled to rely on it if a question arises about the provision being made.
3. The need for some flexibility should not be used as an excuse for lack of specificity where detail could reasonably have been provided.
4. The nature of the provision ordered will often point to the necessary level of detail.
5. Vague words such as ‘opportunities’, ‘support’, ‘interventions’ are unlikely to be sufficient if not specified further.
6. The Tribunal is likely to need more detail for a SEN pupil at a mainstream school compared to one at a special school.
7. Where the evidence does not allow the Tribunal to set out the detail and it would not be appropriate to adjourn, or where the provision will need to be reviewed periodically to ensure it remains relevant, the Tribunal may set out a method to enable this. For example, an occupational therapist, physiotherapist and speech and language therapist to develop an Individual Education Plan (IEP) after assessment to put together a fully integrated teaching and therapy programme – but note the detail in the personnel, objective and format of provision to be made.

What does this mean going forward?

At first blush it appears that Redbridge is a move away from the need for specificity. Closer examination reiterates previous case law. Paragraph 21 (a) – (c), (e) emphasises the need for detail. Specificity cannot be abandoned for flexibility reasons where detail could have been provided. However, specificity may not be upheld where it is viewed as frustrating flexibility in implementing provision. Whether provision is sufficiently specific will be dependent on the facts of the individual case and may not be easy to predict on which side the Tribunal may decide.

For more information about how the Education team could help you contact them by email at senexpertsolicitors@boyesturner.com.