The Power of Specificity.
Section F of an EHC Plan is extremely important tool - it should set out sufficient special educational provision to meet each and every need specified in Section B. This is not a choice, it is a legal requirement (Section 37(2) ofthe Children and Families Act 2014 states “An EHC Plan is a plan specifying…”). Regulation 12(1)(f) of The Special Educational Needs and Disability Regulations 2014 provides that the LA must set out the required special educational provision.
If the law is quite clear that provision must be specified, why do we so often see Section F littered with vague terminology such as “access to”, “opportunities for”, “regular support”? What does ‘regular’ mean to you? Regular meals suggest daily meals, however, regular dental check-ups suggest once or twice a year. There is a vast difference.
Paragraph 9.61 of the Code of Practice issued under the 2014 Act, provides that
“EHC Plans should be clear, concise, understandable and accessible to parents, children, young people, providers and practitioners. They should be written so they can be understood by professionals in any Local Authority.”
Paragraph 9.69 states that Section F
“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”.
The danger when provision is non-specific and vague, is that very limited or no provision, is likely to result. Vague wording is also impossible to enforce. Any provision within Section F must be so specific and clear as to leave no room for doubt as to what should be delivered (L v Clarke and Somerset County Council (1998) ELR 129).
What about allowing for flexibility in the School’s approach/arrangements? In IPSEA v Secretary of State for Education and Skills 2003 EWCA Civ 7, (2003) ELR 393 the Court of Appeal held: “Any flexibility built in to the Statement (now EHC Plan Section F) must be there to meet the needs of the child and not the needs of the system.” The decision of the Court of Appeal concluded: “It remains the case that the statements (now EHC Plan Section F) which do not specify the provision appropriate to the identified special educational needs of the child will not comply with the law.”
In the most recent case on specificity, B-M and B-M v Oxfordshire County Council (SEN) (2018) UKUT 35 (AAC) HS/3005/2017, Judge Rowley stated “the bare provision for programmes tailored to needs add nothing.” Such wording is described as adding nothing, noting further that “..the word opportunities” is vague, meaningless and unenforceable.”
In this case, the LA argued that a high degree of specificity was not required when placement is in a special school and there needed to be a degree of flexibility. Judge Rowley observed that legal authorities do not suggest that even for children in specialist provision, the requirement of specificity can be abandoned. Nor can the need for some flexibility be used as a reason for lack of specificity, where detail could reasonably be provided. Judge Rowley observed, by way of an example, that “[C] will have support from a Learning Support Assistant” failed to identify how much support he will have, or what training and experience the LSA should have.
In addition to vague wording, we also often come across funding formulas or reference to banding arrangements in Section F. Regulation 12 provides the form of an EHC Plan and the list of requirements does not require details of funding or funding source to be stated within Section F. An LA’s funding arrangements with the School has no bearing on the provision within Section F- if the provision is clearly stated within Section F, it must be delivered, regardless whether it exceeds the level of funding stated within Section F. Funding arrangements are irrelevant in Section F and potentially misleading for parents and Schools.
Vague, unspecific and meaningless words in Section F must not be ignored. The Upper Tribunal made it very clear that program content, duration and frequency of delivery, training and skill mix required to deliver and retraining should all be specified. Consequently, to be an effective Section F, specificity is key.