Specification within an EHCP - "When enough is enough"

London Borough of Redbridge v H O (SEN): [2020] UKUT 323 (AAC)
Specification within an EHCP - “When enough is enough”

This recent appeal was brought by the Local Authority in respect of the level of specificity to be included within an Education, Health and Care Plan (EHCP). The provision in dispute was ‘[The pupil] requires extracurricular support for one hour a week at home from a trusted and familiar psychologist.’ 

The decision, which in our opinion muddies the waters in this area substantially, considers “what ‘enough’ detail is within an EHCP, and when ‘enough is enough’”.

When looking to the SEN Code of Practice 2015 paragraph 9.69 and case law in this area, the consistent message given is that an EHCP should be quantified and specific.  The requirement stemming from the case of L v Clarke and Somerset [1998] ELR 129 was that there should be no doubt as to what has been decided and what is needed for the child or young person, in each individual case. 

The decision made by Judge Lane in London Borough of Redbridge v H O (SEN): [2020] UKUT 323 (AAC)  however, appears to take a step backwards providing for flexibility and adjustment of provision where necessary.

Judge Lane provides at Paragraph 19 (xi):

“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 a child. The plan has to provide not just for the moment it is made, but for the future as well…..

…. 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”.

Paragraph 19 (x) then discusses the application of the broad principles laid down by the Court of Appeal in E v Newham LBC [2003] EWCA Civ 07 and confirms that these must be applied to the particular circumstances of each case:

“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 which in its nature must allow for balancing out and adjustment of the various forms of provision specified as knowledge and experience develops on all sides”.

Judge Lane confirms that Principle (x), as detailed above  “is a good summary of the position judges eventually reached for deciding ‘how much detail is enough’ but it leaves outstanding the question: ‘ when is enough enough?”

In addition to the above, this case appears to have reversed the decision of East Sussex County Council v TW [2016] UK UT 528 (AAC) by suggesting that the level of specification necessary within an EHCP can vary, depending on whether the child attends a mainstream or special school. 

“If a SEN pupil is to attend a mainstream school the Tribunal is likely to need more detail than if the pupil were at a special school. Mainstream schools normally have a SENCO and staff trained to deal with SEN pupils whose needs fall short of provision in a special setting. The provision put in place of more complex needs will, as a matter of common sense, require more detail. Where a pupil is to attend a special school, the school will have experience with implementing provision for complex educational, social and health care needs”.

Ultimately, whilst a level of detail is still necessary within an EHCP, to ensure that all parties are aware of what is to take place, the level of specificity will depend on the case including what type of school the child or young person attends, whilst also ensuring that it is a live practical document.  Practically, parents will have to now evidence not only what provision their children need but also evidence that the level of specification sought within the EHCP is necessary. This therefore creates another legal argument and evidential dispute which we do not feel is helpful.

We understand that steps are being taken to raise this matter with the Court of Appeal.

If you require any advice or representation in respect of your child’s special educational needs and the support they need to receive then please do not hesitate to contact our specialist education law solicitors team on 0333 202 7175 / education@hcbgroup.com.