The Quantification and Specification again...

‘Provision in Section F of an EHCP must be so specific and clear as to leave no room for doubt as to what has been decided’. This is well known SEN case law (L v Clarke and Somerset CC (1998)) that should be ingrained in the training of all professionals involved in the writing of Education, Health and Care Plans (EHCP). But a recent appeal to the Upper Tribunal (UT) found the need to have to repeat this again.

The case of B-M and B-M v Oxfordshire CC (SEN) (2018) stated again that a high level of specificity is required, even when placement is in a special school or a mainstream school with a special resource base. The case gives helpful examples of what constitutes unlawful provision (for lack of specificity) in Section F of the Plan.

We have a helpful factsheet explaining the level of specificity required under the Plan and how to challenge the content of the Plan if it is found lacking. You can find the factsheet here.

Background of the Oxfordshire case

Child ‘C’’s EHCP had been amended ahead of secondary school transfer. He had been diagnosed with autism, ADHD, a significant developmental coordination disorder and epilepsy. His parents appealed the content of Sections B, F and I of his EHCP. They wanted an independent special school; the LA named a mainstream maintained school with a specially resourced provision (SRP) for students with SEN, in particular Autistic Spectrum Disorder. The Tribunal made some amendments to Section’s B and F but dismissed Section I because of a finding of unreasonable public expenditure.

C’s parents appealed to the UT on grounds that the First-tier Tribunal had made a mistake in deciding that there was a lower requirement for specificity in an EHCP where a special school is named. C’s parents argued that amendments ordered into Section F needed to be more specific.

The LA’s case was that, when placement is in a special school, a high degree of specificity is not needed and there needs to be a degree of flexibility.

The UT Judge did not get drawn into the specialist / specificity issue and reminded that parties that the legal authorities do not suggest that, even for children in specialist provision, the requirement of specificity can be abandoned where detail could reasonably be provided.

Most useful about the decision are the following examples of provision in Section F where Judge Rowley said were inadequate as more “detail could reasonably have been provided” (note [C] refers to the child in question, [P] refers to the parents).

• ““[C] will have support from a Learning Support Assistant”. This fails to identify how much support he will have, or what training and experience the LSA should have. Given the complexity of C’s difficulties, this is important.  
• “[C] requires a programme to develop his social communication and social interaction skills delivered in 1:1 and small group settings with opportunities to practice (sic) new skills learnt throughout the day.” Ps rely on Upper Tribunal Judge Mitchell’s observation in JD v South Tyneside Council (SEN) [2016] UKUT 0009 (AAC) that “the bare provision for programmes tailored to needs add nothing”. In that case, as in this, while the required programme was described, its content was not specified at all. Further, the word “opportunities” is vague, meaningless and unenforceable.  
• “Daily opportunities with a teacher to improve self-esteem and develop a positive self through increased awareness of individual strengths and attributes and through achieving success in a variety of contexts”. This is not radically dis-similar from a provision which was struck down by Judge Mitchell in JD. 
• “[C] requires a structured programme to develop his motor planning coordination skills.” The points made under (b) above apply here. 
• “[C] requires the equivalent 25 hours of support to be used flexibly across the school day to include individual, small group and whole class teaching to meet the outcomes described.” This, again, is vague and lacks the required specificity. For example, what is meant by “equivalent”? Who is to provide the support?”

Key points

• Judge Rowley’s observation that legal authorities do not suggest that, even for children in specialist provision, the requirement of specificity can be abandoned.
• The need for some flexibility cannot be used as a reason for lack of specificity where detail could reasonably be provided.
• Vague, unspecific and meaningless words in Section F must not be ignored when drafting an EHCP. The use of the word “opportunities” was seen to be particularly vague.
• Judge Rowley’s observation in relation to the Learning Support Assistant who is to support the child is particularly important. He emphasises that the following should be identified:

1. The quantity of support;
2. Training requirements for the LSA;
3. Experience that the LSA must have.

The First-tier Tribunal decision was set aside and the case remitted to be decided by a differently constituted First-tier Tribunal panel. You can read the case in full here.

What does Section F of your child’s EHCP look like? Are there plenty of ‘opportunities for’ and flexibility? Is it difficult for you to know exactly what support your child should be receiving?

If you are experiencing similar problems with your child’s EHCP then please contact us at senexpertsolicitors@boyesturner.com – our expert SEN solicitors are here to help.