When is an Education Health and Care Plan (EHCP) necessary?

The judgment of the Upper Tribunal in Hertfordshire County Council v MC and KC (SEN) (Special educational needs : Failure to make a statement) has been released. This case the question of when an EHCP is necessary.

This case is an appeal brought by Hertfordshire County Council against a decision of the Special Educational Needs and Disability Tribunal (SENDIST). The SENDIST had ordered that Hertfordshire should make an EHCP for a young person, referred to only as “J”.

Hertfordshire appealed against the decision. Hertfordshire’s appeal was for three reasons. The three reasons are listed here, followed by a summary of the Upper Tribunal’s comments.

1. SENDIST had not explained why it felt J had special educational needs

The local authority’s argument was that SENDIST had made a mistake because it had not considered the impact J’s difficulties had on his ability to access education.

The Upper Tribunal dealt with this first ground quickly.  The local authority had accepted in writing to the SENDIST that J had special educational needs. It was not, therefore, a live issue for SENDIST to decide on.

The Upper Tribunal concluded that SENDIST has to deal with issues in dispute only. As such, if the local authority says that it accepts that a child or young person has special educational needs, SENDIST does not have to look behind that.

Whilst dismissing this challenge on a procedural basis, the Upper Tribunal did also consider the substance of the challenge. This required a consideration of the definition of “special educational needs”

A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her. The Children and Families Act goes on to say that a child of compulsory school age or a young person has a learning difficulty or disability if he or she—

1. has a significantly greater difficulty in learning than the majority of others of the same age, or
2. has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.

In this case, J had Autistic Spectrum Disorder (ASD). The Upper Tribunal concluded that this is a “disability” within the meaning of the Equality Act. The Upper Tribunal further concluded that reference to “facilities” did not include education, but rather to physical facilities like playgrounds, lunch hall, toilets, corridors. Given that J did have difficulties accessing such facilities, the definition of a special educational needs was met.

What this tells us is that if an appeal deals with the question of whether a child or young person has “special educational needs”, close consideration of “disability” and/or “learning difficulty” will be required.

2. SENDIST had not given adequate reasons

The second complaint by the local authority was that the SENDIST decision was not sufficiently detailed.

SENDIST in this case had to consider multiple expert reports, including advice from J’s school and support workers. The local authority complained that SENDIST had not dealt with all the disputes in expert evidence. It further complained that the decision seemed to be contradictory.

The Upper Tribunal agreed that the SENDIST decision was not written particularly clearly. Whilst the Upper Tribunal was quite critical of the quality of the SENDIST decision, the threshold is very high for an appeal to succeed on the basis of inadequate reasons.

The fundamental point is that a decision must let the parties know the outcome of the appeal, and why. There is no requirement on SENDIST to slavishly go through every piece of evidence, digest and assess it and explain the decision in minute detail. As long as the general reasoning is clear, then the reasons are adequate. The threshold is, therefore, very high.

3. SENDIST misapplied the law of necessity

The local authority’s complaint is that in order for an EHCP to be necessary, SENDIST must conclude that the support required goes beyond that available in a mainstream school. The local authority’s appeal was on the basis that SENDIST did not set out what support was needed beyond that available at a mainstream school.

The Upper Tribunal has set out that in deciding this issue, the SENDIST should take the following approach:

1. What was known about the special educational needs before the EHC needs assessment?
2. What was known about the special educational needs after the EHC needs assessment?
3. What difference is there between the two? If not much has changed, an EHCP is probably not needed. However, if the child or young person did not make sufficient progress despite little difference between the two, SENDIST needs to look closely at whether additional support is needed.

The Upper Tribunal made reference to the case of Manchester v JW which highlighted that the Code of Practice is guidance only. The statutory provision is very broad. The telling paragraph is as follows:

 In my view, what is ‘necessary’ is a matter to be deduced rather than defined. Its determination will vary according to the circumstances of a particular case and may well involve a considerable degree of judgment. [paragraph 36]

In assessing whether an EHCP is necessary, the local authority claimed that SENDIST had to be clear about the support that J needed which was not available in a mainstream school. The Upper Tribunal concluded that this is wrong. Whilst SENDIST must be satisfied that the child or young person requires support beyond that available within the resources of a mainstream school, the decision does not have to go into detail about what support that is. Doing so would stray into a requirement to draft the EHCP itself within the decision.

Although not cited in this appeal, it is worth also bearing in mind the recent decision of Buckinghamshire v SJ which stressed the importance of looking at the ‘real’ situation, rather than hypothetical ‘levels’ and provision plans.