The EHCP’s heart – Section F

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There is a rise in Local Authorities (LAs) issuing unimplementable EHCPs whose provisions in section F are so vague as to be meaningless and unenforceable.

In one case the school reduced one-to-one SEN provision for an autistic child from full day to mornings only because the EHCP had not specified the quantity of one-to-one. Had the child’s EHCP correctly specified the amount then this would not have been possible.ⁱⁱ The lead case containing the courts’ approach to specificity is Worcestershire County Council v SE, which lists 11 principles at para 74. Readers are advised to refer to it directly.ⁱⁱⁱ

The SEND Code states the matter in simple terms:

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.^iv

The UT discussed the requirement to be specific at length in East Sussex County Council v TW.^v This case cited the Court of Appeal’s approval of the statement:

The real question … in relation to any particular statement is whether it is so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case.^vi

Concerning flexibility, the UT approvingly cites:

Whilst there may have been a need for some flexibility, this should not have been used as an excuse for lack of specificity where detail could reasonably have been provided.^vii

Clearly there must be a careful balancing act between precision and flexibility.^viii But the UT has held that vague phrases such “programmes tailored to need” or “opportunities” are unlikely to be lawful for section F provisions.^ix

Examples of actual EHCP Section F provisions

“small class sizes” ^x – but this has been qualified by SB v Hereford County Council (SEN)^xi

“small teaching groups”^xii

Small group sizes, length and frequency of sessions and also the need for 1:1 work.^xiii

“Wheelchair”^xiv

“teacher who is experienced in working with pupils who have significant learning difficulties and autism/communication disorders”^xv

• The High court held “experienced” meant to have “a real and sufficient fund of experience and not merely having encountered in practice a particular subject or topic. In relation to teaching children with autistic disorders it must mean having a substantial trade record of teaching and working with such children”. Background to case: the child had autism. No specialist school in area. To compensate for this the teacher clause was added. Parents challenged the proposed teacher. Court investigated the teacher’s qualifications and found them insufficient.

“a named member of staff to monitor Robbie’s interactions with peers during non-lesson times”^xvi

“A consistent, full time, one to one, teaching assistant to deliver input throughout the school year”^xvii

“A low arousal environment where distractions are minimised.”^xviii

“Y should continue to use her earplugs when she feels safe to do so in school.”^xix

“the provision of a low noise or low distraction environment for a pupil with a sensory disorder.”^xx

“C shall have 1 x 1hr 1:1 support each week to facilitate and support work recommended by Speech and Language therapy on an individual basis and within the wider learning environment. This shall be subject to termly review.”^xxi

“Jessica to be provided with access to a Teaching Assistant for 24 hours each week so that she is enabled to receive the programme detailed above [in the Plan] individually or in small groups with peers of similar ability”;”^xxii

“Provide [Jessica] with sufficient time to think and process information” ^xxiii

“Y participate in swimming up to twice a week.” ^xxiv

“Hydrotherapy”.^xxv

“Transport to be provided for [Karen] to secure her attendance at college until the end of the Autumn term to allow an assessment of her transport needs to be concluded. Thereafter, appropriate support to assist [Karen] to become an independent traveller and reduce her anxiety so that she can access public transport without assistance”.^xxvi

“AK (the pupil) requires extracurricular support for one hour a week at home from a trusted and familiar psychologist”^xxvii

“support of a psychiatrist…”^xxviii

“A word processor shall be available to [C] for her use in preparing written work”^xxix

Placement in a different year group to that indicated by his age.^xxx

Examples of deficient EHCP Section F provisions

The Upper Tribunal (UT):

1. “[C] will have support from a Learning Support Assistant”.
2. 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?^xxxi

Summary

An EHCP is not worth the paper it is written on if it does not specify in section F to a granular, quantifiable level the specific provisions that will be provided.

Unpicking this statement, firstly the provision must be in Section F. Secondly it must be specific. John will have access to a TA throughout the day is meaningless. What does “access to” mean and what does “throughout the day” mean? The school may have a generic class TA and state that fulfils the “access to” requirement. In short after a lengthy EHCP Needs Assessment and EHCP process you end up with a meaningless document.

An example of an implementable EHCP is a provision in section F that states, “John will have a consistent, one-to-one, dedicated LAS throughout the entire school day, all days of the week. The LAS will be experienced in teaching autistic children.” This provision is implementable because: a) it is in section F; and b) it is specific. “one-to-one” means the LAS cannot be a general, shared TA that the entire class uses. “throughout the entire school day, all days of the week” means there is no ambiguity on how many hours the LAS will be there. “Experienced in teaching autistic children” means a generic TA will not be acceptable. “Consistent” means the same LAS and not a different TA every day.

This post is adapted with permission from the book “SEN & EHCP: Know the law. Use the Law.” The book explains precisely what the law is regarding SEN and EHCP and precisely how to obtain the provisions.

References

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