What an EHCP must contain – Format

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The Local Authority (LA) has agreed to issue an EHCP. Hallelujah! Well sort of. If the EHCP does not contain:

• the correct provisions,
• to a high degree of specificity, and
• in the right sections,

then the EHCP won’t really be of much use. I’ll discuss the need for precision and specificity in another article.

In this article we’ll take a look at the basic format of an EHCP and what it must contain, and which sections are enforceable. The EHCP must contain distinct sections A, B, C, D, E, F, G, H1, H2, I, and J.

The SEND Regulations 2014 state:

When preparing an EHC plan a local authority must set out—

(a) the views, interests and aspirations of the child and his parents or the young person (section A);

(b) the child or young person’s special educational needs (section B);

(c) the child or young person’s health care needs which relate to their special educational needs (section C);

(d) the child or young person’s social care needs which relate to their special educational needs or to a disability (section D);

(e) the outcomes sought for him or her (section E);

(f) the special educational provision required by the child or young person (section F);

(g) any health care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having special educational needs (section G);

(i) any social care provision which must be made for the child or young person as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970 F10 (section H1);

(ii) any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having special educational needs (section H2);

(i) the name of the school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person and the type of that institution or, where the name of a school or other institution is not specified in the EHC plan, the type of school or other institution to be attended by the child or young person (section I); and

(j) where any special educational provision is to be secured by a direct payment, the special educational needs and outcomes to be met by the direct payment (section J),

and each section must be separately identified.”ⁱ

Paragraph 9.61 of the SEND Code indicates that “The format of an EHC plan will be agreed locally” – subject to the above statutory requirements.ⁱⁱ

Which parts of the EHCP are legally enforceable?

Only sections B, F and I are legally enforceable, with a right of appeal in the Tribunal to fix missing or disputed provisions.ⁱⁱⁱ Let me say that again. ONLY SECTIONS B, F, and I can be challenged at Tribunal. Further, because section G is not ordinarily appealable at Tribunal, LAs will try to offload provisions from section F (their responsibility) to section G (not their responsibility).

It is for this reason LAs are more willing to accommodate parental requests for changes to other parts of the EHCP, but fight tooth and nail to resist changes to B, F, and I. I recall one EHCP I was involved in in which the LA allowed parents to dilate at length in section A but spent half-an-hour resisting the change of one single sentence in section B.

Parents are lulled into a false sense of achievement by seeing their views fully represented in the legally inconsequential section A (the views, interests and aspirations of the child and his parents or the young person) or section E (the outcomes sought for him or her) thinking they are securing vital provisions for their child only to be bitterly disappointed later on when the realisation strikes that these sections are entirely unimplementable and represent nothing more than high level aspirations or, to put it rather crudely, waffle.

Ultimately, section F contains the SEN provisions that must be secured by the LA. If a provision is not expressly written in section F, it cannot be enforced, as the mother of an autistic child discovered in TN v FtT and E Sussex CC^iv. In that case an EHCP section F did not name a specific college course and so the mother could not proceed to judicial review enforcement action because the provision had not been listed, even though it would seem it had been implied.

Put simply: if a SEN provision is not expressly written in section F – you will not be able to enforce it later, regardless of what verbal assurances may have been given.

Section F must logically follow from section B. Paragraph 9.69 of the SEND Code states Section F “Provision must be specified for each and every need specified in Section B”. There is a logical order. The special needs are listed in section B. The specific provisions that will meet these needs will be in section F. And the school setting for this will be in section I.

Courts have stated that section B is the key as it contains the description of needs which F will fulfil. If B is skimpy then F, in turn, will be light. This idea was canvassed more fully in The Learning Trust v MP.^v Equally if section F contains all the specific measures your child requires, but section B is skimpy then you are leaving the door open for section F provisions to be removed at annual review as the LA may argue that since the needs are not listed in section B, the F provisions are not necessary.

Remaining with the logical progression theme, the UT has held that Section I (naming school) must proceed, not precede, section F:

the local authority decided the issues in the wrong order. It had decided on the contents of Section I before it had decided on the contents of Section F and addressed the issues the wrong way round.^vi

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.

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