You will have seen many articles and posts from ourselves and others (our previous newsletter of October 2018 looked at specificity in detail), all advising on the need for a high degree of specificity within an EHC Plan being required. This is because a lack of specificity comprises the legal enforceability of the provision within the plan. A lack of specificity and you may risk not being able to enforce the provision within your child’s EHC Plan, under Section 42(2) of the Children and Families Act 2014.
The existing case law and Code of Practice all support that EHC Plan’s are required to be quantified and specific. L v Clarke and Somerset and Somerset [1998] ELR 129 – ‘so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case.’
The issue of specificity and what this looks like in an EHC Plan has been discussed and decided through caselaw for a considerable time, the cases now span four decades. The interpretation of specificity is still being looked at and applied daily within the Tribunal. The Upper Tribunal have recently looked at the existing caselaw in detail and a recent decision (January 2021) has been issued which suggests a shift in the approach the Tribunal should take.
The case of London Borough of Redbridge v H O (SEN): [2020] UKUT 323 (AAC) looked at specificity in detail and considered - when is enough, enough? The issue in this case was whether the wording inserted within the EHC Plan by the Tribunal was specific enough for an EHC Plan, the Local Authority brought the Appeal on the basis it wasn’t. The specific provision in question was;
‘X’ requires extracurricular support for one hour a week at home from a trusted and familiar adult.’
This decision follows on from the decision of Worcestershire County Council v SE [2020] UKUT 217 (AAC), which was issued last year, and Judge West went through specificity in detail and provided principles to consider.
At paragraph 20 of the Redbridge decision, Judge Lane states that principle (x) is a good summary of the position for deciding how much detail is ‘enough’:
“(x) The contents of an EHCP have to be 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 a balancing out and adjustment of the various forms of provision specified as knowledge and experience develops on all sides.”
The rationale for this Judge Lane states is at principle (ix), which states:
“(xi) in distinguishing between cases where provision is sufficiently specific and those where it is not, it is important that the plan should not be counterproductive or hamper rather than help the provision which is appropriate for a child.”
How this will apply appears to be very much dictated by the facts of the case, particularly whether parents are appealing for provision within a mainstream setting or a specialist setting. Judge Lane at paragraph 21(f) states:
“if a pupil is to attend a mainstream school the Tribunal is likely to need more detail then if the pupil were at a special school…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.”
The decision therefore suggests there is to be much more flexibility and adjustment to the levels of specificity within an EHC Plan. Where it is necessary to specify and is suggested, parents will need to evidence that the levels of specificity are in fact necessary. This appears to be a move away from the starting point that a high degree of specificity is necessary by previous caselaw, such as L v Clarke.
Importantly, we have had many parents come to us after having significant difficulties with special schools and whether the provision within EHC Plans is in fact being delivered. A lesser degree of specificity will not help parents in this respect. If the EHC Plan is not clear and you are unhappy with the levels of provision being provided to your child at the special school, this could lead to issues with enforceability.
What is clear however, is that the recent decisions do not state that everything we have considered on specificity should now change. The decision states at paragraph 21(C) that none of the cases endorse the abandonment of detail. Whilst there is a need for flexibility, it should not be used as an excuse for a lack of specificity where detail could reasonably have been provided. Therefore, EHC Plans continue to be required as specific and parents should be ensuring their child’s EHC Plans are clear on the levels of provision that should be provided.
We understand that this case will be appealed to the Court of Appeal, and once this matter is heard, we will provide an update on any changes or confirmation of the position described above.